A Pew Research Center poll out last week stresses that "unfavorable opinions of the Supreme Court have reached a 30-year high," but dig a little deeper and you find that the results reinforce evidence that the court's majority is often to the left of the center of public opinion.
Indeed, contrary to the habitual news media and academic talk of -- and complaints about -- a "conservative Court," at least five justices arguably have been left of the center of public opinion for many decades.
So why do so many commentators, reporters and academics describe the court as conservative rather than as moderate or liberal?
Maybe it is because the court is more conservative than they and their friends. (On many issues the court is more conservative than this writer, by the way; on many others, it is more liberal.) Herd behavior no doubt also plays a role, and they usually don't see the court's location on the spectrum of general public opinion as worth noting.
The Pew poll released last Wednesday showed that "48% of Americans have a favorable impression of the Supreme Court, while 43% view the court unfavorably." But it’s that latter number that is especially interesting. "Driven by Republican dissatisfaction" with the court's late-June decisions requiring states to recognize gay marriage and rejecting a threat to Obamacare, it is the highest unfavorable rating recorded since 1985.
More to the point here, the Pew poll showed that of the 2,002 adults surveyed in July, twice as manysee the court as liberal (36%) than as conservative (18%), with 39% choosing "middle of the road."
Only 33% of Republicans had a favorable view of the court, versus 62% of Democrats.
The Pew poll is consistent with the CNN poll described by Bob Barnes of The Washington Post on June 30: "Although most experts who watch the court think it has become more conservative, a new CNN poll shows that 37 percent of respondents say it is too liberal, compared with 20 percent who say it is too conservative. The number who say it is 'about right' dropped from 46 percent three years ago to 40 percent now."
To be sure, some other Pew polls in recent years have shown more respondents (by narrow margins) seeing the justices as conservative than as liberal. And in an outlier poll in July 2007, 36% chose "conservative" and 14% chose "liberal."
But in all six of the relevant Gallup Polls from 2009 through 2014, more respondents said the court was too liberal than too conservative, by solid majorities. The results were more mixed in 12 other Gallup Polls from 1991 through 2006, with "too conservative" edging "too liberal" six of 11 times and one tie. Pluralities saw the court as "about right" in all of these polls.
It's also instructive to locate the court's handling of specific, politically charged issues on the spectrum of general public opinion. While the June 26 decision legalizing gay marriage was in sync with public opinion, what I wrote in 2010 is still true:
The Court has not been consistently to the right of center of public opinion on most issues since 1937. And it has for decades been consistently left of the center of public opinion on issues including abortion, racial affirmative action preferences, religion, gun rights, the death penalty, national security, treatment of terrorism suspects and more.
On abortion, for example, polls have shown for many years that although the public does not want Roe v. Wade overruled, majorities say that abortion should be legal in "only a few circumstances" and support restrictions on abortion that the four liberals and Anthony Kennedy have struck down as unconstitutional.
Of course, the extent to which (if at all) the Supreme Court should be influenced by public opinion -- and should respect democratically adopted laws -- is a much more complicated question.
One thing is clear: All nine of the current justices have been aggressive in stretching the Constitution -- in very different directions -- to topple laws that they don't like.
Stuart Taylor, Jr. is a Washington writer, lawyer, and Brookings nonresident senior fellow.
