ILLUSTRATION BY FABIO BUONOCORE
The Supreme Court just wrapped up its first full term with two of Trump’s nominees on the bench. But the court’s much-anticipated conservative revolution didn’t really happen this year. To be sure, the last few weeks of the term were full of consequential decisions that hinged on just one vote. But even though there were some fierce disagreements among the justices, the court’s final rulings were actually not very controversial at all — at least from the perspective of most Americans.
According to a recent survey by a group of researchers at Stanford, Harvard and the University of Texas, Austin, which asked Americans about central issues facing the court, the justices’ rulings were in line with public opinion in 8 out of 10 major cases.12
There were just two exceptions. One was in a case that questioned the constitutionality of the structure of the Consumer Financial Protection Bureau; the Supreme Court ruled, contrary to a majority of Americans’ views, that the director of the CFPB was too insulated from executive branch oversight. The second was in one of the two rulings involving subpoenas seeking President Trump’s financial records. A majority of Americans said that the president should not be able to stop his financial documents from being turned over to Congress, but the Supreme Court stopped short of fully siding with the public. They didn’t entirely rule out Congress’s ability to subpoena these documents, but they did suggest there are serious limits on what Congress can demand from the president — suggesting he could block people from turning them over in some instances — and punted it back to the lower courts.
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Maya Sen, a political science professor at Harvard University who helped develop the survey, said she was a little surprised to see that Americans leaned to the left on so many of the cases. “It seemed to set the stage for some potential dissonance between public opinion and how the court’s conservative majority might rule,” she said. And it certainly wasn’t hard to imagine that this term’s Supreme Court decisions would cut against the prevailing public view on issues like abortion or gay rights.
But that’s not what happened. So what does it mean that so many of the court’s high-profile rulings were also pretty mainstream? The justices are notoriously tight-lipped about how their decisions are made (and they probably aren’t using this or any other poll to guide their decisions), but several of the experts I talked with saw this term as evidence that the Supreme Court isn’t immune to the winds of public opinion — particularly in an election year when the possibility of court-packing and term limits for judges came up more than once.
For one thing, there’s evidence that it’s pretty rare for the Supreme Court to lurch too far from the mainstream. Several studies have found that the court’s ideological tilt generally matches the public’s over time. Of course, that isn’t because the justices are trying to tailor their opinions to match Americans’ views. These findings could simply indicate that the court is influenced by the same forces that shape public opinion overall.13
But it’s also possible that the demands of public opinion — and concerns about institutional legitimacy — were weighing particularly heavily on Chief Justice John Roberts this year. After all, the partisan gap in approval of the Supreme Court has widened significantly in recent years. And research by Peter K. Enns, a political science professor at Cornell University, suggests that nonideological considerations — like public opinion — have more of an impact on the justice who casts the decisive vote in close cases, which was a position Roberts occupied several times this year.
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One explanation that came up multiple times in interviews is that Roberts may have wanted to bolster the image of the court as nonpartisan this term so it would have more freedom to release unpopular opinions in the future. “I think Roberts in particular is probably concerned about tarnishing the court with the reputation of being a wildly political branch that makes decisions the public doesn’t like,” said Tom Clark, a political scientist at Emory University who studies the Supreme Court’s relationship with public opinion. “He perhaps wants to preserve the court’s legitimacy and build up a reservoir of goodwill so they can make unpopular decisions in the future without having it blow up in their face.”
Trump’s penchant for publicly asserting that judges are mere political actors may not have helped, either. “The fact that Trump is president and he is really explicit about characterizing the courts as political institutions could be a factor for Roberts,” Enns said. “You have to wonder — would he feel more flexibility in his decisions if there wasn’t so much active politicization of the courts?”
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But another way to look at this term is that the court came very close to releasing some pretty unpopular opinions. For instance, Roberts joined the liberal justices to cast the deciding vote in two of the most high-profile cases this term, which dealt with abortion rights and Trump’s ability to end the Deferred Action for Childhood Arrivals program. This was significant because in both of those cases, the other conservative justices made it clear that they would have been happy to go the other way. And Roberts’s rulings in both of those cases were very narrow, which suggests he might be open to other challenges to abortion rights or another attempt by the Trump administration to end DACA.
So this wasn’t the year that the court’s new conservative majority took a swing to the right. That doesn’t mean it won’t happen in the future. But this term suggests that as long as Roberts is the deciding vote, we could be in for more terms like this one, where we don’t see a slew of opinions that run counter to the country’s general mood.