The humdrum unanimity of Supreme Court cases is rarely conveyed to the public, even in passing.
CSPAN/PSB has released a new survey of more than 1000 likely voters, concerning their knowledge of and attitudes about the United States Supreme Court. The results are not particularly encouraging for those who follow the Court closely.
Survey respondents reported very high interest in the Court generally: 90% of respondents agreed that “Supreme Court decisions have an impact on my everyday life as a citizen” and 82% indicated that the issue of Supreme Court appointments was important to their 2016 Presidential vote. Sixty-five percent of respondents stated that they follow news stories about the Supreme Court “very often” or “somewhat often.”
But at the same time, actual familiarity with the Court and its members is middling at best. Nearly 60% of survey respondents could not name a single Supreme Court Justice. And while 71% of respondents said that they were following the recent news about President Trump’s Supreme Court nominee, only 28% could actually identify that nominee by name.
Also significant were the latest numbers regarding the public’s perception of the Court: 62% of survey respondents agreed that recent U.S. Supreme Court decisions demonstrate that the Justices effectively split into parties, similar to Republicans and Democrats in Congress. By contrast, only 38% of respondents thought that recent decisions demonstrate that the Court acts in a serious and constitutionally sound manner.
Results like these tend to trouble court watchers, both in terms of the general lack of civic knowledge and with respect to the public’s apparent belief that the Court is primarily political body. These trends do require attention. But a closer inspection suggests that there is no need to panic — at least not yet.
First, as David Fontana points out, the seeming inconsistencies in the polling responses might be due to the way the questions were framed. Survey respondents believe (or want others to believe) that they are well-informed, so they are likely to indicate they follow the Court more closely than they actually do. It is not surprising, then, to find that self-reported levels of interest in the Court’s work are higher than actual levels of interest.
Of course, this suggests that when it comes to the Court, the general public is actually neither interested nor informed — the worst of both worlds. But in truth, I do not find ordinary citizens’ failure to identify sitting Justices particularly troubling. Voters are rationally ignorant; they will not invest time in learning the details of the Court’s operation (including the names of its members) unless there is a specific benefit to doing so. Instead, they can follow the Court in a more abstract way without knowing (or caring) about the details of its work. This sort of behavior is both normal and desirable, by helping prevent cognitive overload. And it is certainly not limited to knowledge of the courts. I can (and do) believe that the decisions of the House Ways and Means Committee, or a state planning board, or my local town council, have an impact on my everyday life. And I can cast votes in a way that I hope influences the general direction of these groups’ policies, even if I cannot name a single member of these organizations offhand.
In fact, knowing the names of only one or two Justices might signal a bigger problem than knowing none at all. The blending of Court personnel and pop culture — in, say, the burgeoning “Notorious R.B.G.” meme or a Broadway production of “The Originalist” — raises the specter of cults of personality for individual Justices. For the portion of the population who champion a particular policy choice, canonizing (or demonizing) an individual judge is just playing politics. But elevating some Justices to cult figures has more sinister effects. It increases the risk that the public will perceive the Court as a hopelessly politicized entity, for which ordinary Americans should pick sides.
It is these perceptions of politicized justice that are much more worrisome, not least because most Supreme Court cases are not decided along ideological lines. By my count, 18 of the 80 certiorari opinions issued from the October 2015 Term were per curiam, and 26 of the remaining 62 opinions (nearly 42%) were unanimous at least as to the result. Fewer than ten cases in the entire Term could be described as close calls, with a 5-3 or 4-3 split, and even these cases often saw splits that defied traditional left-right lines. (There were no 5-4 decisions issued last Term before Justice Scalia’s death.)
The humdrum unanimity of Supreme Court cases is rarely conveyed to the public, even in passing. Instead, the prevailing public belief that the Justices “split into parties” in deciding cases is unsupported in fact, and is presumably influenced by a relatively small set of divided, high salience cases that make the news — and, increasingly, the op-ed and clickbait articles that circulate on social media. Distressingly, this week the same theme was advanced by Senator Sheldon Whitehouse (D-RI), who absolutely should know better.
It is unclear whether the Supreme Court itself — either institutionally or as its component Justices — is too concerned about this phenomenon. The Justices are used to taking the heat for difficult decisions, and none seems troubled by it. Nor is the perception that the Court is politicized something new. But the Court and those who follow it closely should be concerned about how perceptions of its work trickle down to the lower federal courts, as well as to the state courts. If the public is accustomed to thinking about all courts in the same way, and the most visible court is also seen as deeply political, perceptions of partiality and bias may have lasting repercussions for judges far outside the Beltway.
So while there is no need to panic, these survey results do suggest a need for action. The Supreme Court itself can start by increasing the transparency of its own decision-making process, by opening its oral arguments to videocameras. I noted here that the current Congress is once again exploring a bill to force the Supreme Court to televise proceedings; the Court could probably avoid such legislation by setting its own video protocols. (And indeed, during yesterday’s confirmation hearings, Judge Gorsuch pledged to keep “an open mind” about the prospect of courtroom cameras.) A live television feed would not be necessary; merely placing unedited videos in the Court’s website immediately following oral argument would be a tremendous step forward. The Court’s historical concerns that video will be selectively edited or presented out of context cannot be discounted completely, but these concerns have not borne out at the state level where televising appellate arguments is common. Furthermore, the Supreme Court could place the complete and unedited video from each argument day on its own website as an easy bulwark against selective reporting.
The Court would also benefit from providing better access and administrative assistance to external reporters who responsibly cover the Court’s activities. The CSPAN survey indicated that 70% of respondents get their Supreme Court information from television, 37% from newspapers, and 35% from online media. The Justices are limited in their own ability to present their work in its fullest context, but there is absolutely no reason why they should not support accurate reporting from responsible media outlets and the indispensable SCOTUSBlog, among others.
Attorneys also have an obligation to contextualize and clarify the Supreme Court’s role to friends, family, and neighbors. People trust the attorneys in their lives to give them information about the court system. And one does not have to agree with Court’s decisions, or like all of its members, in order to respect its larger societal role. Put another way, lawyers do not need to be apologists for the Court, but they should embrace their role as advocates for the overall legitimacy of the American judicial system.
Ultimately, the Supreme Court’s legitimacy — like the legitimacy of all American courts — lies with the public’s perception that decisions are being made in a rigorous and procedurally fair manner, even if one does not support the outcome in any given case. Lawyers, politicians, and the Court itself have a duty to combat the erosion of that perception by placing the judiciary’s overall work in its full and appropriate context.
UPDATE: Welcome SCOTUSBlog readers! Won’t you have a look around while you’re here?