The real threat to democracy: Declining trust in the courts

A key ingredient for a healthy democracy is an independent and (to the extent possible) an apolitical judiciary. Yet recent polls show public trust in the judicial branch of the federal government reaching its lowest point in decades, primarily among Democrats. That is entirely because the judicial branch, and especially the U.S. Supreme Court, isn’t ruling the way Democrats want. And their proposed efforts to “fix” the Court would destroy its credibility.

According to a recent Gallup poll, “Forty-seven percent of U.S. adults say they have ‘a great deal’ or ‘a fair amount’ of trust in the judicial branch of the federal government that is headed by the Supreme Court. This represents a 20-percentage-point drop from two years ago …” It’s also a 33-percentage-point drop from 1999, when 80 percent trusted the judicial system.

But it’s the partisan breakdown that’s most revealing, and concerning. Gallup says that 67 percent of Republicans trust the judicial branch. While that number is down from 84 percent in 2020, it’s still very high and generally in the range of the overall approval rating since the 1970s.

But Gallup puts the Democratic judicial approval rating at 25 percent, down from a Democratic high of 80 percent in 2009, and 74 percent as recently as 2016.

Independents’ approval came in at 46 percent, which represents a relatively small but steady decline since the late 1990s.

The fact that only some 25 percent of Democrats trust the judicial system should concern everyone. They have already made it very clear that they want to change the composition of the Supreme Court, and would have already done so if they had had the votes. We don’t know the exact number, but it seems Democrats weren’t that far from having the votes they needed (that is, if they could have bypassed a Senate filibuster).

Had they been able to pack the court with four or more new justices, any notion of an independent Supreme Court would have vanished.

Ironically, its Democrats and the three liberal Court justices who claim the Court is politicized.

Justice Elena Kagan recently told students at Salve Regina University in Rhode Island, “The very worst moments have been times when judges have even essentially reflected one party’s or one ideology’s set of views in their legal decisions.”

Here’s the problem with her assessment: It is the three liberals, or four when there was that many, on the Court who vote in lockstep. It is only conservatives, including the more moderate Chief Justice John Roberts, who ever vote with the liberals on issues that are closely aligned with political ideology.

It was Chief Justice John Roberts who voted with the Court’s liberal justices in 2012 upholding the individual mandate to have health insurance under the Affordable Care Act (ObamaCare). No one seriously thought any of the liberals would have voted with the conservatives.

It was Roberts and Justice Anthony Kennedy who voted with the liberal justices in 2015 rejecting a state challenge to ObamaCare. No one seriously thought any of the liberals would have voted with the conservatives.

It was Kennedy who voted with the liberal justices in 2015 to grant a constitutional right to gay marriage. No one seriously thought any of the liberals would have voted with the conservatives.

It was Roberts and Justice Brett Kavanaugh who voted with the liberal justices last year to allow Biden’s nationwide pandemic-related ban on evictions to remain in place. No one seriously thought any of the liberals would have voted with the conservatives.

It was Justice Amy Coney Barrett who sided with the liberal justices to block an execution in Alabama. No one … well, you get the idea.

Yes, the five conservative justices and the more moderate chief justice often vote together, but that reflects their “originalist” judicial philosophy.

But the left’s judicial philosophy is swayed by any number of things, including public opinion. That’s why they sometimes refer to it as the “living Constitution.”

As the newest justice, Ketanji Jackson Brown, recently told a judicial conference, “If, over time, the court loses all connection with the public and with public sentiment, that is a dangerous thing for democracy.”

She has it exactly backwards. It’s playing to public sentiment that’s dangerous for democracy.

Merrill Matthews is a resident scholar with the Institute for Policy Innovation in Dallas, Texas. Follow him on Twitter @MerrillMatthews.