Most people who pay attention to approval ratings are aware that Supreme Court ratings plummeted to unprecedented lows even before the landmark decision overturning Roe v. Wade. Unlike presidents, however, on whom pollsters have been collecting popularity figures since the Truman era, Supreme Court justices, who never face the electorate, have been spared such odds of their favor – until has recently.
Traditionally, Americans have tended to pay little attention to specific members of the nation’s highest court. A 1990s poll found more Americans could name Hollywood
“Three Stooges” that one could quote even a member of the Supreme Court. At the same time, the most recognized Justice was his first wife, Sandra Day O’Connor; yet less than 40% of respondents could name her. More Americans could identify with the judge who sat on “The People’s Court” television than could identify with a Supreme Court justice.
Perhaps it was better to stay under the radar than to experience Judge Brett Kavanaugh’s rating in a March 2022 Marquette University Law School poll that found him the most unpopular of members. of the court, with only 21% considering it favorably. Without a doubt, his controversial appointment four years ago – during which he angrily responded to accusations of sexual misconduct and alcohol abuse as a teenager, and delivered the unforgettable statement “J ‘love beer!’ – has not disappeared from the memory of Americans.
What makes Supreme Court justices become lightning rods for public opinion, whether displayed in polls or other forms of expressed dissatisfaction with their professional performance?
In the modern era, beginning with the New Deal Court, appointed by President Franklin Roosevelt, four types of events can lead to the unpopularity of judges: controversy surrounding their appointments; contentious judicial decisions rendered once on the bench; financial misdeeds; or questionable professional ethics, involving in particular choices of recusal.
Controversial appointments: Senator Hugo L. Black had been confirmed as FDR’s first Supreme Court nomination in 1937 when news broke that he had once been a member of the Ku Klux Klan in his home state of Alabama. Wags observed Black swapping his white robe for a black one as he moved from the Senate across the street to the new courthouse building. He went on the radio to explain his story and eventually became one of the strongest defenders of civil liberties on the Supreme Court.
On the other hand, the sex scandals surrounding a nomination fight seem more difficult to overcome, as indicated by the continued unpopularity of Kavanaugh and Justice Clarence Thomas, 30 years after Anita Hill accused the latter. of sexual harassment while working together prior to his Supreme Court nomination. in 1991.
Litigation Court Decisions: Sometimes judges have a smooth ride to nominations, but annoy the public through their decisions. ‘Impeach Earl Warren’ billboards sprung up across the South after the Chief Justice led a liberal revolution to strengthen civil and criminal rights.
Judge William Brennan told me in a 1985 interview that his fellow Catholics knew he attended Mass every Saturday night at St. Matthew’s Cathedral in downtown Washington and protested there weekly against his vote for endorse a federal right to abortion in Roe v. Wade from 1973. . “They have a right to free speech,” the judge told me, smiling with a typically wacky wink.
Her colleague, Justice Harry Blackmun, took the public opposition to her writing of the pro-abortion ruling with less blood. Just as Kavanaugh had to deal with the arrest of a would-be killer near his Maryland home, Blackmun’s apartment in Northern Virginia received incoming gunfire from an assailant in 1985. He told my colleagues on the Supreme Court a decade later, after retiring from the bench, that he was still receiving hate mail from right-to-life Americans who disagreed with his decision to abort. When I reviewed his papers at the Library of Congress in 2005, I found these missives cursing him with “the most painful death of cancer”, for his perceived sin.
Financial misdeeds: President Lyndon Johnson’s attempt to promote his friend Justice Abe Fortas as Chief Justice, replacing Earl Warren who retired in 1968, was blocked by conservative Democrats and Republicans who despised the role de Fortas in Warren’s Court Revolution and cited his continued association with LBJ. The GOP hoped that Richard Nixon would win the presidential election that year and give him the chance to put a conservative in the center court chair. They got their wish when Nixon named Warren Burger chief justice in 1969. Conservatives forced Fortas off the bench the same year when news broke that he had wrongfully accepted an annual retainer from a convicted financier.
Professional Ethics: Justice Antonin Scalia skated to his nomination in 1986, after President Ronald Reagan’s promotion of Justice William Rehnquist to chief justice drew all the fire from Democrats that year over accusations of racism . Once in the field, Scalia applied his conservative jurisprudence and refused to recuse himself in a case involving Vice President Dick Cheney, despite Scalia’s track record of duck hunting with the Veep. A pet peeve of liberals, Scalia’s rest in court after his sudden death in 2016 drew hundreds of admirers who waited for hours in the cold February to pass his casket.
Thomas, unlike fellow member Kavanaugh, who avoids public comment on his 2018 nomination controversy, continues to speak publicly about the injustice with which he feels he was treated in the Anita Hill controversy. Additionally, Thomas refused to recuse himself in the 2022 case involving former President Trump’s communications about the Jan. 6, 2021, uprising, despite the fact that his wife, Ginni, was a close ally of the 45th. President.
The era of social media and 24/7 partisan coverage of Supreme Court controversies has led to scathing attacks on justices, as well as satirical portrayals of them, which can spread much further than editorial cartoons of previous controversies in the Court’s history. The first episode of Stephen Colbert’s “The Late Show” after Roe’s knockdown mocked the majority judges in an animated feature referencing Kavanaugh beer. Colbert’s monologue that evening depicts the author of the Dobbs v. Jackson opinion, Judge Samuel Alito, naked save for a pixelated fig leaf.
Sometimes the public rejection of judges follows them to their graves. As Judge Brennan’s coffin was rolled up in the driveway of St. Mathew’s during his 1997 funeral, attendees could hear anti-abortion protesters denouncing him from the street. Brennan would have been thrilled that they were still exercising their First Amendment free speech rights that he had fought so hard for as, in their minds, a supremely unpopular justice.
Barbara A. Perry is Director of Presidential Studies and Gerald L. Baliles Professor at the Miller Center at the University of Virginia. She was a Supreme Court Scholar in 1994-95. Follow her on Twitter @BarbaraPerryUVA.