WASHINGTON (CN) — Ten years ago, the Supreme Court’s rulings were generally in line with the preferences of most Americans.
That’s no longer the case, however, according to a decade-long study published this week in the Proceedings of the National Academy of Sciences.
As the justices sit on the cusp of handing down their biggest opinions of the term, experts say the conservative supermajority court’s divergence from public opinion could lead to further calls for judicial reform and even defiance of rulings.
“In 2010, looking at the way that the court ruled on different issues and then comparing it to the way that the public would have preferred those issues to be ruled on, there's a pretty strong correspondence, the public and the Supreme Court are mostly in step,” Maya Sen, a professor of public policy at Harvard University and co-author on the paper, said in a phone call.
Sen’s team began asking members of the public in 2010 for their opinions on policy questions under consideration by the court at the time and how they thought the justices might rule on cases involving those topics. The researchers then compared those responses against how the court actually ruled on cases in a given term.
When Justice Anthony Kennedy was the court’s median justice, the ideological position of the court was almost exactly the same as the position of average Americans. Many predicted this would change when Chief Justice John Roberts became the court’s median justice, but the study shows that the court’s rulings were still mostly in line with average American attitudes.
“So the court is sort of in line,” Sen explained, ”with kind of what the average American or how the median American thinks about the important issues that were before the court in that year. … It actually is the case that the court continues to be kind of roughly in step with where the public is.”
The court’s rulings shift away from public opinion when surveyed in 2021 after Justice Brett Kavanaugh became the median justice on the court. The conservative majority became a conservative supermajority, shifting the bench rightward ideologically.
“The public is kind of saying one thing, and the court is actually moving more to the right,” Sen said.
While the study found that the court leans more conservative as compared with the average American, the public underestimated just how conservative its rulings were. Most survey respondents predicted that the justices’ rulings would be mostly in line with their views, but the decisions were actually more conservative. In particular, the study found that Democrats were more likely to underestimate the court’s conservative lean.
Experts say this could be because Republicans put a much bigger focus on the high court. Former President Donald Trump had been very transparent when he campaigned in 2016 about his plans to nominate conservative justices and judges to the bench. These proclamations stood in contrast to those of his Democratic opponent, Hillary Clinton, who focused much less on the issue.
“Republicans are much more transparent with their base, with their constituents, about what they view the role of the courts as being and how important the courts are to the conservative policy agenda there,” Sen said. “I think Republicans are much more informed about the importance of courts. I think they watch courts more carefully because it's more important to their policy agenda, and I don't think Democrat elites even approximate that kind of messaging. The courts just have not been on the top of the Democrat's agenda.”
Americans not recognizing the shift in the court’s ideological lean is important because the study found that this perception correlates with support for institutional changes like adding justices to the court or instituting term limits. Overall, court expansion was unpopular, with only one-third of those surveyed supporting the addition of justices, but term limits received support from the majority of people. But the study found that if there was a deviation between a person’s views and the court’s rulings, that could be predictive of their support for court reform.
“If a Democrat is like, I would like the court to rule in a more liberal way, but I perceive it as ruling in a more conservative way, that person is going to be more supportive of term limits and court expansion,” Sen said.
Because those surveyed tended to underestimate the court’s divergence from their own views, this could mean there would be more support for court reforms if the public were more aware of the court’s true ideological lean.
“Given that Democrats actually do a pretty bad job of accurately pinpointing the court, what we think would happen is that if more Democrats became aware of it, the support for court reform would go up,” Sen said.
This is particularly important given that the court is set to release rulings on abortion rights, gun control, religion and other key policy issues all in the next few weeks. Experts are predicting conservative outcomes in many of these cases, which could call attention to just how far to the right the court has shifted.
“I think 2021 was a term that went under the radar a little bit; I don't think that's going to happen now, especially if Roe is overturned,” Sen said. “I don't think that's going to happen if they overturn the New York gun safety regulations. So those two cases, I think, will be very important in how Democrats see or perceive the court, and if that leaked opinion is what eventually ends up happening — if the court does indeed end up overturning Roe — I think that will be something that will increase support for either court expansion or court terming among Democrats.”
In the past, support for court reforms has resulted in the court shifting back toward public opinion. This was the case in the 1930s when the famous “switch in time that saved nine” halted President Franklin D. Roosevelt from adding justices to uphold his New Deal programs. Whether that would be the case with this court, however, is less clear to experts.
If the court were to repeatedly rule in a way that was extremely unpopular, experts say it's possible that some might just rebel against the justices’ decisions. This would be a problem for the court because their power relies on the public following their rulings. The court faced open defiance of their rulings from segregationists in the 1950s. Today, however, it is thought that politicians who defy the court’s rulings could see some political benefits.
“If you get a court that's consistently handing down extremely unpopular rulings, you're going to get a situation where politicians will be rewarded politically for not listening to the Supreme Court,” Sen said. “In this case, it would probably come from a blue state governor who would actually get a political benefit out of not following along with a Supreme Court ruling.”
The court is expected to release more rulings on Wednesday.
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