The federal judiciary has long sold itself as unique among the branches of government by claiming to do law, not politics. And with the support of a willing media infrastructure, the public more or less bought it. A new study published in Science Advances affirms that, for decades, Democrats and Republicans alike reported significant “trust and confidence” in the courts.
But in recent years, the study finds, “the Court’s special status has evaporated.” As it turns out, the judiciary can be a special snowflake, or it can be an errand boy for the Federalist Society, but it can’t be both.
The perceived loss of legitimacy is particularly stark along partisan lines. The Court took a slight hit with both Democrats and Republicans in 2021 as cracks in the body’s nonpartisan veneer began to show. Between 2018 and 2021, when Justice Amy Coney Barrett sat for her first full term on the bench, the share of cases where Republican appointees voted as a bloc against Democratic appointees tripled, from 9 percent to 29 percent.
But 2022 marked the first time the data showed “pronounced partisan polarization.” It is not a coincidence that 2022 was the year the Republican justices overturned Roe v. Wade: After Dobbs, the study says, the gap between Democrats’ and Republicans’ trust in the Court increased nearly tenfold from the 2020 baseline. Democrats began to consistently see the Court as less legitimate, too partisan, and too powerful. Republicans did not.
The Court has itself to blame for its loss in stature with Democrats. On the campaign trail in 2016, Donald Trump promised to appoint justices who would overturn Roe v. Wade, and as president, he did exactly that. These justices were decidedly among a minority of Americans: polling conducted by NPR shows that 60 percent of Americans think Roe was rightly decided, and abortion should be legal in all or most cases. And 62 percent say the Court’s decision to overrule Roe was based “more on politics than the law.” The result in Dobbs reeks of partisanship, and as Justice Sonia Sotomayor warned in December 2021, the Court may not “survive the stench.”
But the Court’s changed behavior is not the sole explanation for its tarnished reputation. The Science Advances research highlights the fact that legal reporters’ behavior changed, too, and public perception of the Court is directly linked to how well (or poorly) commentators communicate what the Court is doing. “Few people aside from academics and lawyers read the Supreme Court’s decisions themselves,” the article’s authors note. “When scholars say that the public reacted to a decision, what they mean is that the public reacted to the media’s coverage and framing of it.”
The numbers bear this out. According to the researchers, the New York Times published more critical stories about the Court in 2022 than it ever had before. In 2008, it ran fewer than ten articles referencing partisanship in relation to the justices. In 2022, it ran 80. In 2008, there were fewer than 50 articles discussing the Court’s legitimacy and the prospect of Court reform; in 2022, there were almost 200.
Dobbs also received “a simply unprecedented share” of the Times’ Court coverage. Prior to 2022, no single issue or case accounted for more than 15 or 20 percent of Supreme Court coverage in a given year, with the exception of same-sex marriage in 2015. In 2022, however, 60 percent of Supreme Court coverage was about Dobbs and the fallout for abortion rights.
More frequently than ever, this Supreme Court is choosing the Republican platform over the will of the public and established law. And doing so attracted a lot of attention. It’s no surprise that a bit of scrutiny makes its claim to be apart from politics collapse.
