The Supreme Court has grown more conservative than the U.S. public over the past decade and is now more conservative than about 75% of Americans, finds a new paper in the Proceedings of the National Academy of Sciences.
The study also reveals much of the public — Democrats in particular — underestimates how far right it leans.
In 2010, the nation’s highest court reflected the preferences of the average American. Its ideological position on key issues shifted sharply to the right after Justice Amy Coney Barrett joined the bench in late 2020 and “is now near the typical Republican,” researchers write.
Barrett, described in a FiveThirtyEight analysis as “particularly conservative on civil rights issues,” replaced liberal Justice Ruth Bader Ginsburg, who died in September 2020. Barrett’s appointment gave the court a 6-3 conservative supermajority, explain the authors of the paper, Stephen Jessee, an associate professor of political methodology at the University of Texas at Austin; Neil Malhotra , a political science professor at the Stanford Graduate School of Business; and Maya Sen, a professor of public policy at Harvard Kennedy School.
To gauge public opinion, the researchers conducted surveys in 2010, 2020 and 2021, each time asking a nationally representative sample of adults their opinions on key issues before the court at that point in time. Researchers asked about 32 prominent Supreme Court cases in total across the three surveys. They also asked people how they expected the court to rule and analyzed the court’s eventual rulings.
Jessee and Sen say they were surprised they did not detect the rightward shift in the court’s collective ideology before 2021, considering just three years earlier conservative Justice Brett Kavanaugh succeeded retiring Justice Anthony Kennedy, who, according to the Washington Post, “generally was conservative but sided with liberals in some of the court’s most important cases.”
Before Barrett’s confirmation in 2020, Justice John Roberts was the court’s median member, representing the ideological middle ground between the most conservative and liberal justices, the researchers write in “A Decade-Long Longitudinal Survey Shows That the Supreme Court Is Now Much More Conservative Than the Public.”
In late 2020, the median moved from Roberts to Kavanaugh, signaling the court’s more conservative direction, the analysis shows.
Jessee, Malhotra and Sen did not examine public opinion or rulings during the current Supreme Court term for this study. However, Jessee says the court’s recent reversal of its landmark decision guaranteeing the right to an abortion and its June 23 decision overturning a New York law limiting concealed handguns were “what we expected to happen given our estimates.”
“Where we expect most decisions to land is fairly far to the right of the average American and, to me, that’s unlikely to change without a membership change,” Jessee says.
Although the Supreme Court is nonpartisan, Sen says the public needs to understand how justices’ individual ideologies and the ideology of the court as a whole align with the country’s largest two political parties. Journalists can use this study’s findings to help explain that dynamic, she says.
“It’s not something journalists should shy away from, and I think it’s important for people to know where the court is,” says Sen.
“A lot of [news] pieces have been written that are more qualitative in nature and speculating,” she adds. “We actually have the data to show it — to show the synergy. We can show you how the court has moved.”
As the researchers pored over the data, two other things became clear: Many people, especially Democrats, perceive the court to be more liberal than it really is. Also, there’s a link between how closely people believe the court’s ideology matches their own and their support for changes affecting the court — for example, implementing term limits for justices and expanding the size of the court.
“This suggests that if people — and particularly Democrats — knew with accuracy the court’s conservative nature, support for court curbing might increase,” the scholars write.
“We leave it to future research to explore why this might be and whether these patterns endure, especially if the court’s more conservative rulings attract additional attention,” they continue. “It is also possible the court’s positioning will change and swing back toward the middle.”
Jessee says when he and his colleagues examine data collected during the current Supreme Court term, they might find the public’s perception of the court has changed.
“It seems likely to me with all the attention on this gun case and, especially, the abortion case that people might update their perception, which for more people would make it a more accurate perception,” he explains.
Both Jessee and Sen stress that their paper does not take a position on whether Supreme Court decisions should line up with public opinion. But their paper notes the court “must draw its legitimacy as a governing institution from public support.”
In other words, the court’s legitimacy could be called into question if the public did not respect and follow its rulings. The public does play an indirect role in picking Supreme Court justices. Voters choose the U.S. president, who is responsible for nominating judges to serve on the Supreme Court, and U.S. senators, who decide whether to confirm the president’s nominee.
A recent Pew Research Center study finds that the Supreme Court’s favorability ratings have fallen in recent years. In January 2022, 54% of the U.S. adults surveyed said they have a favorable opinion of the court. When the center conducted a similar survey in August 2020, 70% of U.S. adults did.
Many Americans do not seem to think justices are keeping politics out of the courtroom. Although the vast majority of adults Pew surveyed this year say justices should not allow their political views to affect their decisions, 57% rated them as doing a fair or poor job of that.
Research indicates many factors influence how the public sees Supreme Court judges, however.
For example, a recent paper in the American Journal of Political Science finds Democrats tend to be less skeptical of female and minority judges than they are white male judges while Republicans often doubt the impartiality of judges who aren’t white and male. A paper published in Political Communication in 2018 suggests TV news coverage is partly to blame for the court’s loss of public support because news reports have often framed its decisions as political or insincere.