Menus Subscribe Search

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


August 29 • 4:00 PM

The Hidden Costs of Tobacco Debt

Even when taxpayers aren’t explicitly on the hook, tobacco bonds can cost states and local governments money. Here’s how.


August 29 • 2:00 PM

Why Don’t Men and Women Wear the Same Gender-Neutral Bathing Suits?

They used to in the 1920s.


August 29 • 11:48 AM

Your Brain Decides Whether to Trust Someone in Milliseconds

We can determine trustworthiness even when we’re only subliminally aware of the other person.


August 29 • 10:00 AM

True Darwinism Is All About Chance

Though the rich sometimes forget, Darwin knew that nature frequently rolls the dice.


August 29 • 8:00 AM

Why Our Molecular Make-Up Can’t Explain Who We Are

Our genes only tell a portion of the story.


August 29 • 6:00 AM

Strange Situations: Attachment Theory and Sexual Assault on College Campuses

When college women leave home, does attachment behavior make them more vulnerable to campus rape?


August 29 • 4:00 AM

Forgive Your Philandering Partner—and Pay the Price

New research finds people who forgive an unfaithful romantic partner are considered weaker and less competent than those who ended the relationship.


August 28 • 4:00 PM

Some Natural-Looking Zoo Exhibits May Be Even Worse Than the Old Concrete Ones

They’re often designed for you, the paying visitor, and not the animals who have to inhabit them.


August 28 • 2:00 PM

What I Learned From Debating Science With Trolls

“Don’t feed the trolls” is sound advice, but occasionally ignoring it can lead to rewards.


August 28 • 12:00 PM

The Ice Bucket Challenge’s Meme Money

The ALS Association has raised nearly $100 million over the past month, 50 times what it raised in the same period last year. How will that money be spent, and how can non-profit executives make a windfall last?


August 28 • 11:56 AM

Outlawing Water Conflict: California Legislators Confront Risky Groundwater Loophole

California, where ambitious agriculture sucks up 80 percent of the state’s developed water, is no stranger to water wrangles. Now one of the worst droughts in state history is pushing legislators to reckon with its unwieldy water laws, especially one major oversight: California has been the only Western state without groundwater regulation—but now that looks set to change.


August 28 • 11:38 AM

Young, Undocumented, and Invisible

While young migrant workers struggle under poor working conditions, U.S. policy has done little to help.


August 28 • 10:00 AM

The Five Words You Never Want to Hear From Your Doctor

“Sometimes people just get pains.”


August 28 • 8:00 AM

Why I’m Not Sharing My Coke

Andy Warhol, algorithms, and a bunch of popular names printed on soda cans.


August 28 • 6:00 AM

Can Outdoor Art Revitalize Outdoor Advertising?

That art you’ve been seeing at bus stations and billboards—it’s serving a purpose beyond just promoting local museums.


August 28 • 4:00 AM

Linguistic Analysis Reveals Research Fraud

An examination of papers by the discredited Diederik Stapel finds linguistic differences between his legitimate and fraudulent studies.


August 28 • 2:00 AM

Poverty and Geography: The Myth of Racial Segregation

Migration, regardless of race, ethnicity, gender, or sexuality (not to mention class), can be a poverty-buster.


August 27 • 4:00 PM

The ‘Non-Lethal’ Flash-Bang Grenades Used in Ferguson Can Actually Be Quite Lethal

A journalist says he was singed by a flash-bang fired by St. Louis County police trying to disperse a crowd, raising questions about how to use these military-style devices safely and appropriately.


August 27 • 2:00 PM

Do Better Looking People Have Better Personalities Too?

An experiment on users of the dating site OKCupid found that members judge both looks and personality by looks alone.


August 27 • 12:00 PM

Love Can Make You Stronger

A new study links oxytocin, the hormone most commonly associated with social bonding, and the one that your body produces during an orgasm, with muscle regeneration.


August 27 • 11:05 AM

Education, Interrupted

When it comes to educational access, young Syrian refugees are becoming a “lost generation.”


August 27 • 9:47 AM

No, Smartphone-Loss Anxiety Disorder Isn’t Real

But people are anxious about losing their phones, even if they don’t do much to protect them.


August 27 • 8:00 AM

A Skeptic Meets a Psychic: When You Can See Into the Future, How Do You Handle Uncertainty?

For all the crystal balls and beaded doorways, some psychics provide a useful, non-paranormal service. The best ones—they give good advice.


August 27 • 6:00 AM

Speaking Eyebrow: Your Face Is Saying More Than You Think

Our involuntary gestures take on different “accents” depending on our cultural background.


Follow us


Subscribe Now

Your Brain Decides Whether to Trust Someone in Milliseconds

We can determine trustworthiness even when we’re only subliminally aware of the other person.

Young, Undocumented, and Invisible

While young migrant workers struggle under poor working conditions, U.S. policy has done little to help.

Education, Interrupted

When it comes to educational access, young Syrian refugees are becoming a “lost generation.”

No, Smartphone-Loss Anxiety Disorder Isn’t Real

But people are anxious about losing their phones, even if they don’t do much to protect them.

Being a Couch Potato: Not So Bad After All?

For those who feel guilty about watching TV, a new study provides redemption.

The Big One

One in two full-time American fast-food workers' families are enrolled in public assistance programs, at a cost of $7 billion per year. July/August 2014 fast-food-big-one

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