The Supreme Court finished its term with a flood of momentous decisions, tacking to the center with Chief Justice John Roberts crafting most of the majorities and the Court agreeing with public opinion nearly all of the time. Is the Court worried about its public non-partisan stature? And does it need to be? Alison Higgins Merrill finds that support for the Supreme Court is high but declining, partially in response to ideological trends. Michael Nelson finds that public support for the Supreme Court is relatively stable and most people’s negative reactions to decisions don’t last. They both discuss what we can learn from Roberts and the Court this term.
Guests: Alison Higgins Merrill, Susquehanna University; Michael Nelson, Penn State University
Studies: “Ideology and Public Support for the Supreme Court.” and “The Stability of the U.S. Supreme Court’s Legitimacy.”
Transcript
Matt Grossmann: This week on The Science of Politics, how the Supreme Court shapes and is shaped by its public support. For the Niskanen Center, I’m Matt Grossmann.
The Supreme Court finished its term with a flood of momentous decisions, tacking surprisingly leftward, with Chief Justice John Roberts crafting most of the majorities and the court agreeing with public opinion nearly all of the time. Is the court worried about its public nonpartisan stature and does it need to be?
Today, I talked to Alison Higgins Meryl, Sesquehanna University, about her ongoing research, including a paper with Catherine Haglin, Soren Jordan and Joseph, ideology and public support for the Supreme court. She finds that support for the Supreme court is declining partially in response to ideological trends. I also talked to Michael Nelson at Penn State university about his research, including a new journal of politics paper with Patrick Tucker, The Stability Of The US Supreme Court’s Legitimacy. He finds that public support for the Supreme court is relatively stable and most people’s reactions don’t last. Nelson says that the Supreme court independence is popular and hard to budge.
Michael Nelson: We have done a bunch of surveys that ask Americans the same set of questions about their willingness to tolerate some fundamental changes to the US Supreme court. That’s everything from totally abolishing the court, to getting rid of the court’s ability to decide particular types of cases or to make the court less independent.
Some of the strongest evidence we have is from a panel survey of Americans during the Obama administration. So during the last four years of the Obama administration, the same people answered these questions a couple or more times a year, and then we can look within person over time. And what we find is, especially at the aggregate level, the responses on those questions have stayed the same over time. Most people are not willing to or say they’re not willing to tolerate the court being meddled with. And that didn’t really change that much, even as the court decided things like same sex marriage during the second half of the Obama presidency.
Matt Grossmann: The court, usually sides with the public and might not have much capacity to influence it.
Michael Nelson: If we go way back to what we learned in elementary school, we think about the court as being a unique type of political institution because it’s counter majoritary. In other words, that the court can stand in opposition to public opinion when it needs to. And in reality, that’s not really the case. Most of the evidence suggests that the courts decisions particularly on important issues tend to be congruent with public opinion. So for example, the case that the court decided a week or so ago about sex discrimination and whether you can discriminate against gay and lesbian employees. They held that you couldn’t, and that’s actually a decision that’s congruent with what most Americans want.
So there’s this idea that the court will stand in opposition to public opinion, but in reality, the court’s decisions tend to be pretty congruent with public opinion.
There’s also another literature about the extent to which the court can change people’s opinions. So in other words, I have an idea about a policy issue, the court rules, and does my opinion change? And that literature comes to a lot more mixed conclusions, in part because people really vary in the extent to which they pay attention to the court and the court, particularly this time of year, usually the end of June, beginning of July, when it decides it’s most important cases, they tend to kind of go both ways. So we’ve seen some big wins for liberals like in the sex discrimination case and in the abortion case this year, but also some cases that have come out in a strong, conservative direction regarding regulation and things like that.
So there’s pretty strong evidence that the court’s decisions tend to be in line with public opinion, weaker evidence about the court’s ability to change people’s opinions,
Matt Grossmann: But Merrill says people support for the court declines when it moves in the other ideological direction, particularly for conservatives.
Alison Higgins Merrill: The most recent projects that I’ve been working on with Catherine Haglin, Soren Jordan and Joe Yara, is looking at asymmetries in public evaluations of the Supreme court. And what kind of got us started on this project was that we were noticing that when you look at approval for the Supreme court, there were differences in what conservatives were saying, versus what liberals were saying. And so we wanted to unpack that a little bit more. What we actually found, which was really cool is that as the Supreme court decision making diverges from the public’s immediately preferred level, policy liberalism, so how much involvement the government has in citizens day to day lives, how much that the public is willing to tolerate the government helping you out, the support for the court declines, but in different ways for conservatives than for liberals.
And this actually really got started because of a recent leptin small page and Enders article, which shows that American political values really do operate asymmetrically among ideological groups, and those ideological groups, the conservatives, the liberals really do map onto our two major political parties, the Republicans and the Democrats, and specifically, when we look at conservatives, we tend to see that these values are more concentrated and they tend to be emphasizing things like individualism, personal liberty and moral absolutism, versus liberalism, which is a much more diverse coalition of beliefs. And it’s really coalesced among a more diverse coalition of social groups as well, that tend to support more egalitarianism and more relativism.
And so what we noticed was that when we kind of broke it down that way, conservatives tend to experience much more intense response to political stimuli than liberals. And this is something that we’ve seen in the literature in other areas of American politics before. So for example, changes in domestic spending tends to affect Democrats less than it affects Republicans. And what we did is we kind of took these different pieces and created this theoretical argument that in the aggregate, so if we’re looking more big picture, specific support for the Supreme court is more strongly related to the perception that the court is overly liberal, than the perception that the court is overly conservative. In other words, when the court is perceived as being too liberal, support wanes a lot more quickly among conservatives. So conservatives are more likely to jump ship and express disapproval of the Supreme court, when they think the court has moved in a more liberal direction than liberals.
And what we found when we started taking apart this data was that we were actually correct. The decline in public support for the court in recent years is more heavily related to the result of changing attitudes among conservatives than among liberals. And we kind of also noticed that when we have a democratic president, 33% of Americans judge the court to be too liberal, versus when we have a Republican president, only about 25% of the public judges the court is being too liberal.
So it’s also connected to evaluations of the president as well as who is in office and evaluations of Congress as well. However, if the public approves of Congress, they’re also more likely to approve of the Supreme court.
It’s just kind of interesting that we’re seeing these differences in evaluations among different groups of Americans. And so generally the court enjoys more support than the other two branches of government, and I think a lot of this is just, there’s this mystique around the Supreme court, people don’t understand it the way that they might understand Congress and the presidency, and this might be because they were unelected. But we’re still seeing differences in evaluations of the court among conservatives and liberals.
Matt Grossmann: Supreme Court support is high, but dropping.
Alison Higgins Merrill: Compared to the other branches of government, the court tends to enjoy support at levels over 50%. So more than half of the public at any given point tends to approve of the job the court is doing. And this is typically measured by the Gallup question, do you approve or disapprove of the way the Supreme court is handling their job? And you can interchange the president or Congress for the Supreme court in that question. So we use that to kind of measure support amongst the three branches of government.
However, in the past, I think it’s five years, we’ve seen support for the court dip below that 50% threshold, which is a little troubling to not only members of the federal judiciary, but people who study the court. It’s like, “All right, why all of a sudden are we seeing this decrease in support for the court?”
And if you compare it to the president, president Trump has struggled to get over 40% approval for the majority of his presidency. He’s been sitting right at that 38 to 41 percentage approval for most of his first term in office, and Congress is even lower. I think one of the lows recently has been 11% approval for Congress. It’s gone up a little bit and they’re in the high teens to low 20s. So comparatively, the court’s looking great compared to the other two branches of government.
Matt Grossmann: Nelson says, the individual and aggregate trends might not match if the court’s moves are balanced.
Michael Nelson: The big thing to emphasize is, just because something is stable in the aggregate, doesn’t mean that nothing’s happening on the individual level. So even in those panel data that I was talking about earlier where we surveyed the same people over time.
A lot of individual people would bounce around a bit and that bouncing around, really the only thing that predicted it was their ideology. But at the same time, because the court we’ve observed over the past couple decades has been a court whose major decisions throw some positive decisions to the liberals and some positive for conservatives, those things kind of balance out in the aggregate. To the extent people are paying attention, if I’m a conservative, I see a couple of conservative decisions, I like that; I see a couple liberal decisions, I don’t like those, and it goes in the other way. And so in the aggregate those things can balance out, even if there’s individual level change.
Matt Grossmann: And Merrill agrees that the micro level is important to combine with the macro level.
Alison Higgins Merrill: I think Michael’s research at the individual level is super informative for how we understand those micro level components and why we see stability and enduring support for our institutions in general. But I also think that taking my research and the research I’ve been working on with my co-authors at the aggregate level and pairing it with some of the more micro level approaches gives us a better sense of why we see short term fluctuations, but longterm support.
And so in the short run route, we might see pushback against the Supreme Court, but it’s going to moderate itself and it’s going to revert back to those existing high levels of support because the court is an institution, people like it, they respect it, they think highly of it. It might be that they’re pissed off about a particular issue, but at the end of the day, they still really like the institution as it is. So it’s, all right. Well, that made me upset and I don’t necessarily like the way it happened, and so I’m going to maybe take my frustration out and say that I disapprove of the job they’re doing and maybe vote for politicians that are deciding things in line with my preferences that might influence the justices in some negative way, but eventually I might just agree with the Supreme Court in general.
And we’ve seen this in the literature. There was a very negative and harsh criticism of both Brown v. Board of Education and Roe v. Wade, but over time, the majority of the public has come to support those decisions. And so it’s kind of like the court is leading public opinion. They’re like, “We know you might disagree with us now and be really unhappy, but eventually you’re going to like the fact that we put these safeguards in place.”
And so I think taking the macro level research that people like Michael have done with some of the more aggregate level stuff, kind of helps us understand that push and pull that comes with short term versus long term support.
Matt Grossmann: Nelson says, “Much of the public is not paying that much attention and doesn’t necessarily see the big ideological trends.”
Michael Nelson: The issue here is the extent to which people are really tuned into what the court is doing. For a certain set of people who are pretty politically sophisticated, they can look and know that during the Trump presidency, Anthony Kennedy, who was the justice, who was the median justice, stepped down, he was replaced by somebody who’s much more conservative it seems. And now we have Chief Justice Roberts in the middle of the court, which moved the median member of the court to the right.
The thing that’s tricky for that to have an effect on public opinion is that the public has to realize that that all happened. That’s pretty complicated for most people, particularly because the most important cases of the year tend to come out some for liberals and some for conservatives. And so one interesting thing from a research perspective over the next few years is that it looks like the court’s policymaking will on-balance move to be more one-sided than it had been in the past few decades, and so we’ll be able to observe the change that more single-sided type of policymaking has on people’s support for the court.
Matt Grossmann: And it’s not clear who the court needs to be following; the public or the elites.
Michael Nelson: I also studied state Supreme Courts where most of the justices have to stand for reelection. And there, there’s kind of an obvious reason why you would expect courts to follow public opinion, which is that for most state Supreme Court justices, if you make a bunch of decisions that a majority of people don’t like, then a majority of people are going to support somebody else in the next election. Supreme Court justices on the other hand, don’t have any real institutional reason to need to follow public opinion, at least at the mass level, and so we might think that they’re more attuned to say congressional preferences or something because Congress can control their budget and things like that.
The thing that makes it hard to disentangle responsiveness to different audiences, especially for the Supreme Court, is that a lot of the policies that tend to be popular among the American people are also popular among elected officials. And surprisingly, there’s pretty little evidence that the general ideological tenor of the court’s decisions changes as the court gets closer or further in ideological distance from Congress.
Matt Grossmann: We don’t know if the court really needs that public support and weather bad opinions would kill them.
Michael Nelson: The story goes that the Supreme Court more than any other political institution really needs this public support, that if the court’s decisions veer off in one direction or something else happens that causes the court to lose its legitimacy, then for example, its decisions could not be implemented and there’d be no electoral repercussions. But the problem with testing that is that we’ve pretty much only observed a court that has been broadly supported by the American people and the court hasn’t really taken any wild and crazy actions that has caused us to see kind of spikes downward in its popularity or its support.
And so it’s kind of hard to say because the court itself is strategic. We have lots of theory that suggests it would be really bad for the court. The court has written in some of its opinions that it would be bad for them if they lost public support. At least some justices say they believe that. But we don’t really have that much variation on the public support for the court to really know much about it.
Matt Grossmann: Regardless, Roberts does seem to care about the court appearing to be in the middle.
Michael Nelson: What we saw come out of the court in the last couple of weeks is evidence that fits with that theory; the theory that Roberts is pretty concerned with what people are thinking about the court and modulates his views according to that. Certainly there’ve been some leaks out of the court, like with the Obamacare case that suggested that Robert’s changed his vote. And certainly Roberts voted against same sex marriage, but voted for the liberal sex discrimination case this time. He’s voted against abortion restrictions, voted in the liberal direction for the abortion case in this term. So certainly he had the opportunity as the justice who’s sitting in the middle of the court to move the court’s policymaking in a decidedly, more consistently conservative direction and he chose not to do that. Of course, he doesn’t say that’s what he did in his opinions, but from the outside, that’s certainly what it looks like.
Another interpretation though, is that certainly with the abortion case and with the sex discrimination case, to go back to what we talked about earlier, those were decisions that were pretty popular generally, and so might have been short term bad for conservatives, but he also removed those potential bad issues off the agenda for the presidential election. So in some ways his actions kind of successfully maybe saved the Republicans from having to defend some unpopular decisions later in the election.
He’s a smart guy, and he knows that he’s going to be on the court for a long time and he’ll get to the place he wants to go, and as Chief Justice, he’s got a lot of tools to help him do that. What we’ve seen so far is that he’s somebody that’s willing to be much more gradual in the sorts of decisions that he’s making than many Republicans would like. The implication for that is that it looks like he does that in a way that is avoiding an abrupt change to what the court is doing and has the benefit of maybe helping the court maintain some of its legitimacy.
Matt Grossmann: The court could also be selecting some social issues to tack left in order to protect right moves elsewhere.
Michael Nelson: To the extent that the court thinks that it has some need for its big decisions to kind of come out pretty much an ideological wash, it certainly seems to be the case that a lot of the cases that have come out in a liberal direction had been the sorts of social issue cases; abortion, gay rights, and the sorts of cases that the Roberts’ court has been strongly conservative on are things like economic regulation, administrative law.
Another explanation there is this one that these new Republican appointees from the Bush and Trump administrations really just care a lot more about economic conservatism than social conservatism, and so they are much more concerned about being consistent on economically conservative issues than on socially conservative issues. And that has the benefit for them of being a set of issues I think that tend to be less salient and more difficult to understand for the average America. Everybody knows what it means to know that the Supreme Court ruled for same sex marriage. It’s a lot harder to explain to somebody, say the case about the Consumer Finance Protection Bureau, it’s just a more difficult issue, but both are extremely important political issues.
Matt Grossmann: Merrill points out that the Supreme Court has big choices about how to address each issue by taking specific cases.
Alison Higgins Merrill: The justices, I think they pay attention more to the issues than they might to particular cases. And I can’t remember the exact quotation, but I remember reading something that justice Sotomayor had said about justice Scalia when he was giving her advice on certiorari petitions during her first term. And he said, “Hey, if we miss it in one case, we’ll get it in another case because we get thousands of questions that deal with the same issue.” And so I think they’re a little bit more concerned about dealing with issues than maybe specific cases. Whereas I think the American public wants them to do the specific case and maybe not the issue.
Matt Grossmann: And the Chief Justice wants to play a decisive role and play the long game.
Alison Higgins Merrill: Well, I think Roberts is a particularly interesting kind of case study for this question of does the Chief Justice vote sincerely with his ideological preferences or is he more strategic kind of based off of his role in organizing the other eight members of the court and distributing the opinions amongst his colleagues once they’ve reached a tentative vote on a particular case? There was an article, I think it had to be five, six years ago now, where they mentioned … because when we talk about the Roberts court or we talk about the Rehnquist court, we call the courts by the name of the Chief Justice. And there was this article that talked about how it’s not really the Roberts court, it’s the Kennedy court and how Roberts didn’t like that. He didn’t like that all of the attention was on Anthony Kennedy and that it was being called the Kennedy core and that he was kind of being overlooked.
And so I think since Justice Kennedy has stepped down, Chief Justice Roberts is really aware more now, of his role as being that median justice. The justice that can kind of tip the balance one way or another all be really closely divided votes. And so he, I think is playing that long term strategic game, where he’s aware of what his personal preferences are, what his convictions are, and also the fact that as he mentioned in his confirmation hearing before the Senate Judiciary Committee, the role of a judge or adjusted is to be an umpire to call balls and strikes.
So to focus purely on the law. And I think in the most recent decision, the June Medical decision, the abortion decision out of Louisiana, where he was resoundingly criticized by a lot of conservatives for voting with the more liberal justices, we see him being the umpire, calling the balls and the strikes. Because what he did in that decision was vote the same way that the precedent that was established in the Whole Women’s Health versus Hellerstedt case that came out of Texas in 2016, dealing with the same issues facing June Medical this term, he upheld that precedent.
And so I think that’s a really strong example of Robert’s going, “That’s our precedent, it’s new precedent, but we need to respect that precedent. This is me calling balls and strikes. This is not me creating new law.” And I also think that that’s also suggestive of Roberts being strategic. Roberts knowing that we’re in a very contentious political environment, we’re incredibly divided amongst our ideological and partisan affiliations. So we want this institution to not be seen as just another arm of the presidential administration, but actually the independent judiciary that it was created to be. So, I might not vote the way I’m expected to vote because I was nominated to this court by a Republican president, but I’m going to do things that are better for this court long term.
Matt Grossmann: Nelson says another possibility is that these might’ve been straightforward decisions rather than based on ideology alone.
Michael Nelson: As political scientists, it’s easy to say, well, these were important policy issues and we saw the justice for the most part, Roberts may be excepted voting in pretty ideological directions. But those three decisions are also pretty straight forward legally in the sense that the court’s opinion and the DACA case said, “Look, there are some rules that the administration needs to follow and they didn’t follow them. And so regardless of whether we agree with the administration’s decision being good or not, you at least got to kind of follow the rules.” With the LGBT protections case, it just came down to whether when you fire a gay man, because he’s married to another man, are you firing him because of his sex? Kind of a simple issue of statutory interpretation.
And the abortion case was really a simple application of precedent from the courts last abortion case. The restrictions at issue were really similar and Robert’s opinion in that case, especially it says, “Look, we just decided this and we’re supposed to be consistent.” So it’s always hard to disentangle law from policy, but certainly, with respect to say Gorsuch’s vote in the liberal direction and the LGBT case, it’s pretty hard to say it’s a policy vote and pretty easy to say that it’s in line with a pretty clear statutory interpretation regime that he’s been associated with for a while.
Matt Grossmann: Merrill agrees that the actual law of stake does matter, even in cases that look like they have ideological trends.
Alison Higgins Merrill: When you kind of break it down as to what provision are they really addressing? That also affects how we understand the way the court has made the decision. Because when it comes to a statutory question, we see that the court actually tends to defer to the language in the statute more often than not. And most of this is to be a good team player in the whole separation of powers framework. They know their constitutional job is not to create law, that rests with Congress. And so unless there is an egregious constitutional violation written into a statute, most of the time the court is going to uphold the statute. When you’re looking at state implementation of an issue it’s, well, is this the first time that a state has raised this issue and challenge the federal government because of the Supremacy Clause? And if state law and federal law conflict, we know the federal law is going to win out.
And so you kind of have to understand both areas. So, where is the underlying question coming from? And then how does this fit into the policy agenda space? That’s when the text of the opinions becomes super important, because you start seeing what the justices are emphasizing. So what’s important to that group of justices more than another group, so the majority versus the minority. And so it’s useful to kind of group them together to get a sense of what’s happening in the aggregate for a particular term. But if you really want to understand the nuances of why a case was decided the way it was, you really have to dig down to the specific case. And the opinion of that case.
Matt Grossmann: Nelson finds that swing voters sometimes get to write the big opinions and that the dissents matter too.
Michael Nelson: It matters a lot, whether you’re in the majority or not. It’s not surprising for example, that we see Gorsuch write the opinion in the liberal sex discrimination case, because the liberals are saying, “We’re going to sign on. We just need you to write an opinion that you’re happy with.” In the same way that Anthony Kennedy got to write the blockbuster abortion and same sex marriage decision.
When you’re in the majority, you want to be careful to preserve that majority that can lead to a lot of compromise in language. With respect to dissents, Scalia famously said that you’re writing descents for lawsuits. You want dissents that are going to get put in case books and they’re interesting to read. And so we’ve done some research where we looked at how caustic dissenting opinions were, and it does turn out that way, that the more interesting and angry your language is, the more likely those dissents are going to get cited over time. And as a dissenting judge, you want that dissent to eventually become a majority. And so there is some benefit to being a little bit of a jerk and writing with some colorful prose that people are going to remember.
Matt Grossmann:
It is a threat to the court if they appear political, and Trump isn’t helping that. But Nelson says the public might not be very influenced by Trump’s tweets complaining about it.
Michael Nelson:
There’s a good bit of evidence out there that suggests that one of the biggest threats to the court’s legitimacy, perhaps even bigger than whether people like the decisions or not is whether or not they think the court’s being political in its decisions. And what we mean by that is not that Ruth Bader Ginsburg votes liberally, Brett Kavanaugh votes conservatively. Most people get that they have views on important policy issues as everyday Americans.
Michael Nelson:
It’s not strange that Supreme Court justices are also going to have opinions on those issues. We don’t see people punish to the court that much, if they think the justices vote on policy grounds. Where we see them punish the court is when they think the justices are engaging in self-dealing or they’re bargaining or being strategic, all the stuff that people don’t like about Congress. And so the worry about Trump, when Trump was tweeting about the court was whether or not Trump’s tweets were going to contaminate the court in the sense that he was drawing them into this politicized arena. And it doesn’t really seem like he does. It seems like he tweets about so much stuff all the time, and he’s disliked by so many people that if I’m somebody who doesn’t like Trump and I see his tweet-
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Michael Nelson:
Somebody who doesn’t like Trump. And I see his tweet. It might even make me like the court more because I’m programmed to like things that Trump doesn’t like. On the other hand, if I’m somebody who does support Trump, he can’t hurt my support for the court. But again, because Trump’s approval at baseline is so low, he hasn’t been able to really harm the court support that much with his tweets.
Matt Grossmann:
So what are we to make of Roberts’ recent moves? Merrill says Supreme Court justices can change their opinions once they’ve reached the bench, and sometimes do.
Alison Higgins Merrill:
The fact that they’re on the highest bench, I mean, they’ve reached the pinnacle of their career. They’re not trying for any higher office. They’re not trying to play the political game, to be nominated, to be something else. Again, it’s this long run game. They can really just afford to allow their opinions to change. And I think we sometimes forget that justices are human too. They’re people whose preferences can and do change, just like you and me. And I mean, I’m not that old, but I know my preferences have changed and some of them have moderated and become a little bit more liberal as I’ve gotten older and learned more and seen more, and I’m willing to bet the same thing is happening with our justices.
Alison Higgins Merrill:
And I think one of the most talked-about examples of this is Justice Harry Blackmun, who came to the court a huge proponent of the death penalty. But by the time he left the court in the early ’90s, one of his most famous quotes is “I shall no longer tinker with the machinery of death.” And he left the court a staunch opponent of the death penalty. I mean, that’s an extreme example of a justice going from really supporting the death penalty to not, and so his views moderating and becoming more liberal. But I think it’s suggestive of when they’re on this really high court and they’re seeing these really high-stakes issues, they’re may be getting perspectives that they hadn’t gotten at lower levels or earlier on in their careers. And also, the conversations that they have with people that are so diametrically ideologically opposite of them can really affect the way that they think about issues.
Matt Grossmann:
Nelson says they’re now in a tough spot before the nomination, needing to rule ideologically but not partisan to get on the court, in order to win the right to change once they get there.
Michael Nelson:
The vetting that these people go through, especially as people are worried about selecting somebody who’s “bad” for their ideological interests, means that to be successful, you need to be a uniform, in that you need to never have decided a case that came out contrary to the way that your ideological base wants you to. So for example, if you want Trump to appoint you to the Supreme Court in 2022, you can never have ruled in a liberal direction on an abortion case. But at the same time, you can’t be so partisan in your behavior that it gives people a clear signal that can get traction and mount a successful opposition to you, the sort of thing that happened to Robert Bork.
Michael Nelson:
So I think these lower court judges who are auditioning for the Supreme Court find themselves in really tricky positions where they’ve got to be consistent in order to make sure that they maintain their space on the shortlist, but they have to be careful, it seems, maybe not to stand out too much or else they could have trouble down the line. So for them, once you finally get on the Supreme Court, it has to be somewhat of a relief because you’ve got life tenure, for sure, and you don’t need to worry about being promoted any more. And so you’ve got a lot more freedom, maybe not so much in what you say, because you were probably doing that before, but certainly in terms of how you say it.
Matt Grossmann:
So what’s next? Meryl says litigants will respond to recent ideological trends on the court.
Alison Higgins Merrill:
To a lot of lower court judges., I don’t think this is particularly surprising. I think that, again, it’s Roberts deciding in line with his role as the chief justice and managing the court as this institution. But for litigants, I think this is going to affect the types of cases that are being brought before the court, because a lot of the abortion challenges now… Two times in the past four years has the court struck down really excessive state laws that they have said unduly burden a woman who wants to receive an abortion in her home state. And so I think that’s going to put the kibosh a little bit on states either passing really restrictive laws or litigants pursuing resolution at the highest court, because they’ve seen now twice that the court has struck down those state laws. And so that might slow some of the abortion challenges that we see.
Alison Higgins Merrill:
And I think the slap on the wrist that the court has given the Trump administration recently might also impact which cases the federal government decides to bring to the Supreme Court and how those are addressed at the lower levels as well. Because this court is not going to be exactly what the administration had hoped it would be. And so it’s going to cause them to rethink their strategy and how they go about drafting executive orders and other legislation that the court would potentially rule on. So I think we might see a little slow down in some of those areas as well.
Matt Grossmann: And Nelson says we keep thinking the balanced court will change, and perhaps it finally will, after the next election,
Michael Nelson: It was boring for a long time, because the court seemed like it was pretty four-four with somebody in the middle who is pretty wobbly. And I remember literally the day that Justice Scalia passed away and Obama was in office, it was like, “Oh wow. We’re finally going to get to observe what happens when you have a strong liberal majority in contemporary America.” And then that didn’t happen. And then we were all talking about how now, with Roberts, we don’t really have a swing justice any more. He’s median, but he won’t swing to the liberals in these important cases. And then he did that. So we keep thinking that maybe we’re going to get to observe something that is new and different, but that hasn’t happened so far. And I guess we’ll know a lot more in four years, whether that was just a fluke of the times or whether that’s just the way that the court operates.
Matt Grossmann: There’s a lot more to learn. The Science of Politics is available biweekly from the Niskanen Center. I’m your host, Matt Grossmann. Please review our recent episodes at niskanencenter.org or anywhere you find your podcasts. Thanks to Alison Merrill and Michael Nelson for joining me. Please check out ideology and public support for the Supreme Court and the stability of the US Supreme Court’s legitimacy, and then listen in next time.
Photo Credit: Fred Schilling, Collection of the Supreme Court of the United States / Public domain