The Supreme Court of Public Opinion?

The U.S. Supreme Court (strangely, without protesters)

Last week, The New York Times and CBS News jointly released a new public opinion survey on Americans’ view of the U.S. Supreme Court.  Among other headliners, which includes an historically dim view of the Court, the accompanying story appeared alarmed by the 76 percent of Americans who believe that the justices “let their own personal or political views influence their decisions”.

At least there is an implicit recognition in the pollsters’ questions that the personal and political are separate from questions of law and constitutional jurisprudence.  But what is interesting and disconcerting to me is the suspicion that those conducting the poll probably couldn’t define political if the respondents asked them to.  If we can agree that the political is simply defined in this context as something other than legal or constitutional analysis, then all would be well. But I’m pretty sure we know that wasn’t the intent of the survey’s drafters.

So what did those conducting the polls mean by political when they wrote out and asked these questions?  It’s conceivable they meant by the decisions they take they favor the agenda of certain factions in government and therefore favor certain parties, whether Republican or Democrat.  That is certainly one popular conception of the political and could work here.  After all, the Supreme Court suffered extreme damage after Bush v. Gore which determined the outcome of the 2000 election (and it would have suffered damage in any case, since the Court’s opinion had to pick the winner one way or another).    It’s certainly unfair to tar the existing Court with the decade-old Gore decision, especially after so many retirements and appointments. But that decision permanently colored the public’s view of the court as being above electoral politics and the Court hasn’t been helped by its prompt consideration of federal health care reform legislation, a particularly polarizing issue.

But political can mean something else, as I have argued elsewhere. Politics and the political are about how we choose normative standards for others, and the Court is the ultimate arbiter of those standards against the Constitution.  As with every significant and controversial opinion in its history — from Marbury v. Madison through Brown v. Board of Eduction and well beyond — the Court is making decisions that affect how we live our lives.  The Court has political consequence.  But it is not a political branch of government — specifically if not deliberately designed that way by the Constitution — which is why a justice writing opinions under political influence may offend the American public.

But it’s not entirely clear that the public understands this. Read a dictionary definition of the political and you won’t find any discussion of what I’ve talked about here.  It’s strange and curious that the English lexicon (and as I have argued elsewhere, those of several other European languages) has not adapted a load-bearing word such as political, which we use with such carelessness in our everyday.

I would encourage, from this obscure post, those conducting these surveys to be more clear both in their expectations and definitions when asking respondents what they mean when they ask about political intent  (The New York Times and CBS cite similar polls that assume spectrum political differences on the Court, but according to those cited here nobody has asked about political influence on opinion-writing before 2010). This is a reasonable suggestion — pollsters often clarify their questions (particularly in inter-cultural or cross-linguistic surveys) — and this could easily be adapted by asking whether the justices (or others) have political agendas to support particular parties or causes or wish to advance particular political or social agendas individually.  That may still be vague (it doesn’t quite satisfy me), but the language is demotic enough to elicit the kind of responses I think these surveys are designed to produce.

Fortunately I think this discussion amply demonstrates the importance of properly and precisely defining the political.  The word has evolved into a complex concept — a relationship, in many respects — that we all probably implicitly understand but if pressed to define would find difficult to nail down in analogous terms.  This New York Times/CBS poll shows why that is perilous and important. What has occurred when the Supreme Court has become a political entity? Well, what do we mean by political? Answering one question will answer the other.

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About James Thomas Snyder

U.S. Foreign Service Officer, writer, translator and former NATO and U.S. Congressional staffer. All opinions expressed here are my own. My work has appeared in the International Herald Tribune, Military Review, Joint Force Quarterly, Internationale Politik, Dissent, The New York Times and Los Angeles Times, among other publications. In 2013, Palgrave-MacMillan published my book, The United States and the Challenge of Public Diplomacy. In 2004, TAMU press published my translation of Pierre Hazan's Justice in a Time of War, a history of the Yugoslav war crimes tribunal in 2004. I earned a joint JD-MA from American University in 2001 and a BA from UCLA in 1995. I also studied European and international law at the University of Paris X-Nanterre and international security at Meiji Gakuin University in Yokohama, Japan.
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