The Changing Supreme Court: Public Perception and Partisanship

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The Supreme Court occupies an unusual niche in the public imagination. Over decades of polling, Americans have expressed significant faith in the American federal judicial system — more faith, at least, than they have for comparable federal institutions. Since the 1970s, the percentage of Americans who say they have a “great deal” or “fair amount” of trust in the judicial system has never dropped below 50%, and that percentage has dropped below 60% only once, in 2015. By comparison, public trust in the legislative and executive branches has fluctuated widely and always remained lower than that of the judicial branch.

It’s hard to tell why Americans express this trust so consistently. But pundits believe this is largely because Americans see the Supreme Court as far less subject to partisan battles (the branch is, after all, officially nonpartisan). Throughout history, most justices have been diligent about appearing nonpartisan, even indifferent to politics, despite clear ideological leanings.

On one hand, partisanship is not wholly avoidable because presidents are inherently partisan, and they nominate candidates to the Supreme Court. That’s always been the case. But by many metrics, the court has become more starkly divided by partisanship. Since the 1980s, presidents have, with more consistency, picked justices they believe will stick to their side of the partisan divide, and justices have deviated less from the party of their nominating president over time.

The process has changed in other ways, too, not least because confirming justices has become more divisive. In the 1970s and 1980s, and further back than that, Supreme Court nominees were routinely confirmed with the votes of the vast majority of senators. Scalia, O’Connor, Stevens, and Kennedy, were all confirmed unanimously in the 70s and 80s; as recently as 2005, 78 senators — over three-quarters of the chamber — voted to confirm Chief Justice John Roberts. But since the 1990s, Supreme Court confirmation votes in the Senate have become narrower and increasingly partisan. This partisanship was most stark in the vote totals for Kavanaugh’s confirmation, which was closer and more divided by party than any other Supreme Court nomination since the 1880s.

Confirmation hearings have changed, too. The average number of comments spoken by senators and the nominee has increased since the 1930s, which you can see in the chart below. Since the 1980s, the gap between the number of senators’ comments and nominees’ comments have also grown. The number of unique issues addressed at the hearings — civil rights, for example, or precedent — has been steadily rising too, from two or three in the 1940s and 1950s to more than a dozen on average in the last few decades.

These changes have arisen in part because the nature of public involvement in the seating the Supreme Court has changed. Americans have ever-increasing access to the confirmation process, which, before televisions arrived in American homes, was relatively insulated from the public. This also means that senators are more likely to use those confirmations to reiterate their own stances to American citizens.

Tenures are also shifting. Supreme Court justices are living longer, and their terms on the court have almost doubled since the early 1900s. Between 1900 and 1924, justices served an average of 13.3 years on the court; since 1975, however, they’ve served an average of 26 years. This is in part because Americans more broadly have longer lifespans (the average justice’s lifespan has increased by 15 years since the late 18th century) and justices are also being confirmed at younger ages.

These changes may have had an influence on another trend, this one regarding public perception. Although public trust in the judicial system is higher than other branches, public trust in the Supreme Court has been slipping for two decades. This may be a symptom of growing mistrust in a variety of institutions over the last few decades. Trust in non-federal and non-governmental systems has fallen too — institutions like churches, banks, news sources, and schools. Regardless, whether this growing mistrust will carry over into the current Supreme Court generation remains to be seen.

For more information on the Supreme Court, download the replay of our Changing Courts webinar.