Countermajoritarian Confounder

In 2009, 33 legal scholars pushed for a Judiciary Act implementing regular appointments to the Supreme Court, term limits for Justices, ousting aging Justices, and reforming the Court’s process of granting review. An observer  might have expected the reformers to gain traction; after all, most of America’s government remains spectacularly unpopular. Yet such expectations proved mistaken. The bill never materialized into law, and despite some scholarly dissent, the Supreme Court enjoys high public approval ratings. At a time when Americans increasingly distrust the president and Congress they elect, the appointed judicial branch has rarely proved more popular.
The paradox calls to mind the countermajoritarian problem first discussed by the late Alexander Bickel. In a purported democracy, why do people think so favorably of an institution consisting of nine appointed individuals in a temple of justice? Further, why have attempts to democratize the judiciary failed? The answer appears to lie in the institution itself. Despite the Supreme Court’s isolation from the public, judicial reform is unlikely as long as the Supreme Court is considered legitimate and enjoys an extensive reserve of good will with the public.
The Legitimacy of Legitimacy
Many scholars assert that the Supreme Court enjoys high public approval ratings because it appears legitimate in our democracy. In an interview with the HPR, Harvard Law School professor Richard Fallon described three different types of legitimacy: sociological, moral, and legal. Fallon states that while most scholars think only of  sociological legitimacy, moral and legal legitimacy are equally important for the Supreme Court. Sociological legitimacy, Fallon asserts, entails “legitimacy as a source of authority that causes people to obey institutions even when they don’t agree with the outcome.” In a legal context, this translates to other branches complying with a decision of the courts without protest. Moral legitimacy involves the Supreme Court maintaining its power by not offending the moral sentiment of the people. Last, Fallon describes legal legitimacy as the Court staying within the plausible bounds of its authorities. In its combination of all three, the judicial branch strengthens its popularity and power.
Over time, the Court has further enhanced its legitimacy by mediating its own influence. In an interview with the HPR, Professor Ryan Owens of the University of Wisconsin said, “The court has made a concerted effort over time to get involved in cases only as a last resort.”  The Supreme Court bears the power to grant a writ of certiorari in cases it deems significant enough to hear, but selects only those that it thinks require more exacting judicial scrutiny. Professor Owens noted that the Court is more likely to accept cases where the lower courts are in conflict and rarely accepts a decision simply because it disagrees with the verdict. By its judiciousness in its selection of cases, the Court declines to influence matters that lie beyond its power.
The Democratic Deficiency
Professor Owens further describes a “fundamental psychosis in the American  public.”  Owens notes that members of Congress suffer from extremely low levels of support, while the Supreme Court and military enjoy high rankings. These high approvals may seem paradoxical considering the lack of an electoral connection. Somehow, Owens notes, the public construes “the Court as not being subject to the same pressures and is willing to give the Court the benefit of the doubt,” says Owens.
Bob Barnes of the Washington Post told the HPR that there is very little that the Court can do to lower its goodwill in public opinion. Indeed, there is very little it can do to change citizen’s perceptions at all. Barnes cites polls showing a plurality of Americans believe the Court to be “too liberal,” despite its frequent conservative rulings. Barnes continued, “If people knew more about the Court, they may like it less.” Yet such may prove a difficult task. In a recent poll done by Newsweek magazine, less than 1 percent of the nation can name all nine Justices of the Supreme Court.
Neglecting the Numbers?
The acceptance of the Supreme Court’s legitimacy further reflects in public polling data. An October 2011 Gallup poll indicates that 46 percent of Americans approve of the job that the Court is doing. In the same poll, Congress’s rating stands at a meager 13 percent. The Court consistently outperforms its sister institutions, suggesting that the benefits of elections upon popularity can be overstated.
Public polls on the Court serve less as a reflection of job performance based on individual cases and more of a summation of public acceptance. In an interview with the HPR, Duke Law Professor Paul Carrington clarified the argument, reasoning that the Court’s “popularity rating doesn’t tell you anything about what it is doing.” Individuals’ perceptions of their judges rely less on specific ruling and more on holistic evaluations. A recent slide in approval numbers, 15 percent in the past two years, stems from general dissatisfaction and distrust of government, not anger from specific cases like Citizens’ United, Carrington asserts.
“It is a countermajoritarian institution that nevertheless enjoys reserve or diffuse support from the public,  although that support, it appears, will ebb and flow to a degree as does support for other, more visible institutions,” said Russell Wheeler of the Brookings Institution. It resulted from “a drop in the approval of government institutions generally,” he added. The justices themselves pay little attention to the numbers, as their responsibilities are linked neither to popular opinion nor approval from any other citizens. Professor Carrington summarized the justices’ sentiments by saying, “It is a very arrogant institution. They don’t care what other people think … they are self-indulgent.”
Supreme Crisis?
Looking ahead, the prospect for reform is slim. At a time when widespread Occupy tumult has called for fundamental changes within the political sphere to no avail, similar calls for reform within the Courts have fallen on deaf ears. When asked what the chance is that lifetime tenure would be abolished or any other reform implemented, Professor Carrington replied by saying that one “need[s] a moment of crisis of some sort to get something done.” As the only court explicitly created by the Constitution, the Supreme Court has held an unchallenged position in the realm of American government and decision-making. Such Constitutional mandate gives credence to the Justices’ indifference towards the polls, and unless their legitimacy suddenly diminishes, they will carry out their responsibilities indefinitely.
Medha Gargeya ’14 is a Staff Writer. Andrew Seo ’14 is the Design Editor.
Photo Credit: Phil Roeder, Flickr