Why is the Supreme Court so hated today? The answer might surprise you

Another public opinion survey about the Supreme Court, another historically bad result.

Earlier this month, Gallup found that just 40 percent of Americans approve of the court — a figure that was 3 points lower than Gallup’s most recent poll and tied for the lowest rating it has ever recorded.

The conventional explanation is that the court’s declining public support is a reflection of its escalating partisanship, particularly the sharp rightward turn brought about by its six-member conservative supermajority. The Supreme Court is certainly as partisan as it has ever been — but on its own, the partisanship explanation is not enough.

It cannot explain why a majority of independents (55 percent) disapprove of the court, and why even a healthy percentage of Republicans (33 percent) do too. And it cannot make sense of the fact that, over its long history, the court has often been popular even though its justices have typically also been partisan.

What then, is different about today’s Supreme Court?

In the course of researching a new book, “Supreme Hubris,” about the court’s current legitimacy crisis, I came across a story that neatly captures the problem. It starts, of all places, with a hand-stitched pillow that once sat on a chair in the private chambers of former Justice Sandra Day O’Connor.

The first female justice in the history of the Supreme Court, O’Connor’s remarkable achievements were matched only by her confidence. “Make a decision, right or wrong,” she once advised my former boss, Justice Sonia Sotomayor. “The worst thing you can do is be indecisive.”

To O’Connor, confidence was not just a virtue, it was a motto to live by. Literally. While interviewing O’Connor for a 2001 feature, Jeffrey Rosen discovered that one of her prized possessions was a pillow embroidered with the following phrase: Maybe In Error, But Never In Doubt.

The motto likely reflected O’Connor’s hard-won approach in a field so dominated by men that, despite graduating third in her class at Stanford Law School, she struggled even to get interviewed by law firms. In a profession where men claimed to know all the answers, it is hard to blame O’Connor for choosing never to show self-doubt.

Yet it is also difficult to think of a line that more powerfully illustrates what is so broken about today’s high court: the dangerously overconfident approach that it takes to the hard cases that divide the American people. The court may well get the answers wrong in a number of society-altering conflicts. But when it does, it will err in spectacularly confident fashion.

“Maybe in error, but never in doubt” might be a good slogan for breaking the highest of glass ceilings. But it is a terrible way for nine unelected lawyers to decide cases about issues as important as reproductive autonomy, gun safety, climate change, voting rights and more.

Yet that is precisely how the Supreme Court has acted. Consider Justice Neil Gorsuch’s recent opinion for a six-justice supermajority in 303 Creative v. Elenis, which created a First Amendment exception for expressive business owners to discriminate against gay and lesbian couples with respect to customized designs. The answer in that case, Gorsuch confidently asserted, should be “obvious”: when a state anti-discrimination law and the Constitution collide, “there can be no question which must prevail.”

No question? That is a bold claim and a highly debatable one if history is our guide. After all, when constitutional values collided with anti-discrimination laws that prohibited segregationist business owners from discriminating against Black customers in the 1960s, the court consistently held that the anti-discrimination laws prevailed.

Or consider Justice Samuel Alito’s self-assured declaration in Dobbs v. Jackson Women’s Health Organization, that Roe v. Wade was “egregiously wrong” to recognize the right to abortion because “three quarters of the States made abortion a crime at all stages of pregnancy” in 1868. To Alito, the outcome in Dobbs was never in doubt. Yet in reaching that answer, his reasoning displayed errors, too. In particular, his claim that three-quarters of the states criminalized abortion throughout pregnancy is, at best, historically questionable.

To be fair, not every justice has been equally guilty of the overconfidence that O’Connor’s pillow glorified. Chief Justice John Roberts, in particular, has sometimes shown a healthy degree of intellectual humility. In his concurring opinion in Dobbs, for example, Roberts openly admitted he was “not sure that a ban on terminating a pregnancy from the moment of conception must be treated the same under the Constitution as a ban after fifteen weeks.”

This laudable sense of self-doubt led the chief justice to act more cautiously and vote for a middle-ground position that would have preserved at least some right to an abortion. Regrettably, no other justice joined him in this instinct.

But the court’s fate is not sealed. The American public responded to Dobbs with unprecedented levels of dissatisfaction and anger. If there is any reason for hope about today’s court, it is that the public’s disdain will persuade another justice to join the chief in embracing a humbler approach.

That leads us back to where we started: the Supreme Court’s plummeting public approval. The longer the court is the target of public criticism, and the more everyday Americans support serious structural court reform, the more likely another justice will embrace a more moderate approach to ward off these attacks.

What might such an approach look like? How about this for a start: Maybe in error, so therefore in doubt — and therefore more likely to issue cautious, modest opinions in the cases that divide our society.

Aaron Tang is a law professor at the University of California, Davis, and a former law clerk to Justice Sonia Sotomayor. He is the author of “Supreme Hubris: How Overconfidence is Destroying the Court — And How We Can Fix It” (Yale University Press).