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(Photo by Erin Schaff-Pool/Getty Images)
If you’re a watcher of the Supreme Court, this isn’t surprising information. Hell, even if you’re only paying a little bit of attention to the Court’s wildly unpopular anticipated dismantling of abortion rights, this shouldn’t be a shock. But here it is, in case you need hard data when fighting with your MAGA uncle: according to a new survey published in the Proceedings of the National Academy of Sciences journal, the Court’s jurisprudence is now *much more* conservative than most Americans. So that means the only non-democratically elected branch of government — without term limits — is out of step with the policy preference of the public and without serious reforms to that branch of government we just have to… wait it out? Cool, cool.
According to the study, the moment that the Court shifted away from the center of the American zeitgeist was the replacement of Ruth Bader Ginsburg with Amy Coney Barrett. Versions of the study were also done in 2010 and 2020, and with the different iterations of the study, the justice in the center of the Court’s jurisprudence has shifted from Justice Anthony Kennedy in 2010 to Chief Justice John Roberts in 2020 to Justice Brett Kavanaugh in 2021. And that makes all the difference:
“We estimate that after the median shifted from John Roberts to Brett Kavanaugh in late 2020, the court is now near the typical Republican and to the ideological right of roughly three-quarters of all Americans.”
Interestingly, despite the evidence staring us in the face, most people actually underestimate the conservative bent of the Court. And, specifically Democrats are more likely to think of the Court as more liberal than it currently is. I suppose the repeated indoctrination of the Court as the protection against the worst impulses of the nation, see, e.g., Brown v. Board of Education, had a long-term impact on the perception of the Court (never mind that overturning the 9-0 decision is now on the right-wing agenda).
Another part of Democrats’ illusions of the Court is that the GOP has been able to marshal the import of the Court into a voting issue for their base, as paper co-author Maya Sen told Courthouse News:
“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.”
Sen also noted that Court reform is not a popular proposition, a proposal that is stymied by the majority of the country’s unwillingness to see how far right the Court has swung:
“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.
So, maybe the right-wing leanings of the Court *is* a surprise. Or at least it will be until the Court (likely) destroys New York’s gun regulation in Bruen. But where pessimists may be concerned, Sen sees a potential moment for change:
“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.”
Of course, as a lawyer, it’s hard to get jazzed about the continued degradation of the Supreme Court’s credibility. But it’s 2022, so I guess we’ll take whatever silver lining we can get.
Kathryn Rubino is a Senior Editor at Above the Law, host of The Jabot podcast, and co-host of Thinking Like A Lawyer. AtL tipsters are the best, so please connect with her. Feel free to email her with any tips, questions, or comments and follow her on Twitter (@Kathryn1).
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