Menus Subscribe Search

Follow us


A Politicized Supreme Court Doesn’t Faze the Public?

• September 30, 2011 • 5:34 PM

Two political scientists review a survey of perceptions about the U.S. Supreme Court and find the public may actually want the justices to trade their black robes for red and blue ones.

This week, the Obama administration asked the Supreme Court to rule on the constitutionality of the health care law that has divided the country (and, until now, federal appeals court judges). The request sets up what likely will be a legal showdown in the coming high court term — right in the thick of a presidential election. And it promises to be a particularly eventful case: critics on the left want Justice Clarence Thomas to recuse himself because of his wife’s activism opposing the law, while critics on the right want Elena Kagan to do the same because of her earlier job as the government’s top lawyer.

In short, all of the pieces are in place for a round of handwringing over whether the court has become “politicized.”

“The traditional view of the court is it’s apolitical, justices are impartial, politics isn’t involved, they’re objective, fact-based decision-makers,” said Brandon Bartels, an assistant professor of political science at George Washington University.

Scholars sometimes refer to this view as the “myth of legality.” They don’t mean to imply that such impartiality is fiction. Rather, this is the legal story Americans collectively tell about the court. And in ongoing research with Duke political scientist Christopher Johnston, Bartels has been trying to figure out if the public really buys into it.

The two authored a paper published this week that casts new light on the court’s upcoming foray into the heated political questions. They note that a sizable portion of Americans view the Supreme Court in politicized terms. And the more people view the court that way, Bartels and Johnston found, the more they support a nominating process that emphasizes politics and ideology.

The finding contradicts conventional wisdom — and what many court watchers might like to believe and do expect — that when the court is widely viewed as politicized, the public gets upset, and in a kind of “backlash effect,” people demand even stricter protections for the impartiality of the nominating process.

Bartels and Johnston’s work suggests many people aren’t upset at all. They may even prefer the idea of a politicized Supreme Court and, by extension, something the authors call “political justice” — justice rendered through the viewpoint of someone with admitted ideology.

“This reinforcement perspective suggests that people actually don’t want justices chosen on impartial or objective grounds,” Bartels said. “The president doesn’t want an objective justice. President Obama wants people who will make decisions that are in accord with his ideological viewpoint, and senators want the same thing.”

[class name=”dont_print_this”]

Idea Lobby

THE IDEA LOBBY
Miller-McCune's Washington correspondent Emily Badger follows the ideas informing, explaining and influencing government, from the local think tank circuit to academic research that shapes D.C. policy from afar.

[/class]

Why wouldn’t the public, too?

Not surprisingly, individuals who are more strongly partisan themselves are more likely to support a political appointment process, while political moderates and close court watchers are less likely to.

Bartels and Johnston based their analysis on data from the 2005 Annenberg Supreme Court Survey of about 1,500 adults. The survey questions produced what looks a bit like hypocrisy. About 70 percent of people said they agreed that the court is “too mixed up in politics” and “favors some groups more than others.” But 71 percent of these very same people also said it was important to them that nominees during the Bush administration share their position on abortion.

In all, 54 percent said they believed nominees should be required to state their views on legal issues. And this suggests that while many people might embrace the idea of “impartiality” in principal, when it comes down to a decision on health care or abortion, they feel differently.

“Once you realize the Supreme Court is ideological and political,” Bartels said, “then you think, ‘Wait a minute. Maybe I want justices on the court who reflect my views.’”

These findings add to a growing body of support for the idea that the public may not view the court as being all that different from Congress or the White House, as being some separate, special entity apart from the political branches of government. And this is probably upsetting news for lawyers and legal scholars who value the court’s impartiality — and would like to think that the public values it, too.

Bartels says it may be wishful thinking to expect the public to abhor politics on the bench. It would be more realistic, he adds, to recognize that politics and ideology inevitably seep into the court’s decisions on issues like health care — and that maybe the public is OK with that.

Sign up for the free Miller-McCune.com e-newsletter.

“Like” Miller-McCune on Facebook.

Follow Miller-McCune on Twitter.

Add Miller-McCune.com news to your site.

Subscribe to Miller-McCune

Emily Badger
Emily Badger is a freelance writer living in the Washington, D.C. area who has contributed to The New York Times, International Herald Tribune and The Christian Science Monitor. She previously covered college sports for the Orlando Sentinel and lived and reported in France.

More From Emily Badger

A weekly roundup of the best of Pacific Standard and PSmag.com, delivered straight to your inbox.

Recent Posts

November 26 • 2:00 PM

Rich Kids Are More Likely to Be Working for Dad

Nepotism is alive and well, especially for the well-off.


November 26 • 12:00 PM

How Do You Make a Living, Taxidermist?

Taxidermist Katie Innamorato talks to Noah Davis about learning her craft, seeing it become trendy, and the going-rate for a “Moss Fox.”


November 26 • 10:28 AM

Attitudes About Race Affect Actions, Even When They Don’t

Tiny effects of attitudes on individuals’ actions pile up quickly.


November 26 • 10:13 AM

Honeybees Touring America


November 26 • 10:00 AM

Understanding Money

In How to Speak Money, John Lanchester explains how the monied people talk about their mountains of cash.


November 26 • 8:00 AM

The Exponential Benefits of Eating Less

Eating less food—whole food and junk food, meat and plants, organic and conventional, GMO and non-GMO—would do a lot more than just better our personal health.


November 26 • 6:00 AM

The Incorruptible Bodies of Saints

Their figures were helped along by embalming, but, somehow, everyone forgot that part.


November 26 • 4:00 AM

The Geography of Real Estate Markets Is Shifting Under Our Feet

Policies aimed at unleashing supply in order to make housing more affordable are relying on outdated models.



November 25 • 4:00 PM

Is the Federal Reserve Bank of New York Doing Enough to Monitor Wall Street?

Bank President William Dudley says supervision is stronger than ever, but Democratic senators are unconvinced: “You need to fix it, Mr. Dudley, or we need to get someone who will.”


November 25 • 3:30 PM

Cultural Activities Help Seniors Retain Health Literacy

New research finds a link between the ability to process health-related information and regular attendance at movies, plays, and concerts.


November 25 • 12:00 PM

Why Did Doctors Stop Giving Women Orgasms?

You can thank the rise of the vibrator for that, according to technology historian Rachel Maines.


November 25 • 10:08 AM

Geography, Race, and LOLs

The online lexicon spreads through racial and ethnic groups as much as it does through geography and other traditional linguistic measures.


November 25 • 10:00 AM

If It’s Yellow, Seriously, Let It Mellow

If you actually care about water and the future of the species, you’ll think twice about flushing.


November 25 • 8:00 AM

Sometimes You Should Just Say No to Surgery

The introduction of national thyroid cancer screening in South Korea led to a 15-fold increase in diagnoses and a corresponding explosion of operations—but no difference in mortality rates. This is a prime example of over-diagnosis that’s contributing to bloated health care costs.



November 25 • 6:00 AM

The Long War Between Highbrow and Lowbrow

Despise The Avengers? Loathe the snobs who despise The Avengers? You’re not the first.


November 25 • 4:00 AM

Are Women More Open to Sex Than They Admit?

New research questions the conventional wisdom that men overestimate women’s level of sexual interest in them.


November 25 • 2:00 AM

The Geography of Innovation, or, Why Almost All Japanese People Hate Root Beer

Innovation is not a product of population density, but of something else entirely.


November 24 • 4:00 PM

Federal Reserve Announces Sweeping Review of Its Big Bank Oversight

The Federal Reserve Board wants to look at whether the views of examiners are being heard by higher-ups.



November 24 • 2:00 PM

That Catcalling Video Is a Reminder of Why Research Methods Are So Important

If your methods aren’t sound then neither are your findings.


November 24 • 12:00 PM

Yes, Republicans Can Still Win the White House

If the economy in 2016 is where it was in 2012 or better, Democrats will likely retain the White House. If not, well….


November 24 • 11:36 AM

Feeling—Not Being—Wealthy Cuts Support for Economic Redistribution

A new study suggests it’s relative wealth that leads people to oppose taxing the rich and giving to the poor.


November 24 • 10:00 AM

Why Are Patients Drawn to Certain Doctors?

We look for an emotional fit between our physicians and ourselves—and right now, that’s the best we can do.


Follow us


Attitudes About Race Affect Actions, Even When They Don’t

Tiny effects of attitudes on individuals' actions pile up quickly.

Geography, Race, and LOLs

The online lexicon spreads through racial and ethnic groups as much as it does through geography and other traditional linguistic measures.

Feeling—Not Being—Wealthy Cuts Support for Economic Redistribution

A new study suggests it's relative wealth that leads people to oppose taxing the rich and giving to the poor.

Sufferers of Social Anxiety Disorder, Your Friends Like You

The first study of friends' perceptions suggest they know something's off with their pals but like them just the same.

Standing Up for My Group by Kicking Yours

Members of a minority ethnic group are less likely to express support for gay equality if they believe their own group suffers from discrimination.

The Big One

One in two United States senators and two in five House members who left office between 1998 and 2004 became lobbyists. November/December 2014

Copyright © 2014 by Pacific Standard and The Miller-McCune Center for Research, Media, and Public Policy. All Rights Reserved.