Historically unpopular Supreme Court, historically unpopular decision

Published: June 27, 2022 8:59 AM EDT
In this Jan. 27, 2020 photo, the Supreme Court is seen in Washington, DC. (AP Photo/Mark Tenally)

This week, the US Supreme Court delivered its most controversial decision in at least a decade. The unpopular (according to national polling) ruling to overturn the landmark Roe v. Wade decision that established a constitutional right to an abortion may have major electoral consequences in this year’s midterm elections.

CNN’s Harry Enten covered the political impact in part in a prior column. But the court’s actions, in this case, may do something more than just affect the elections this year.

The Supreme Court’s own reputation is at stake, and the decision to get rid of Roe v. Wade and to upset the status quo comes at a very sensitive time for the justices in a different court: the one of public opinion.

And that’s where we’ll start our look at the news of the week through numbers.

The Supreme Court is historically unpopular

The Supreme Court is not elected by the voters. A lot of people agree, though, that it’s important that the court maintains its legitimacy in the eyes of the public. After all, the court relies on others to enforce its own rulings.

The high court’s legitimacy in the public’s mind was already at very low levels, and that was before the overturning of Roe — something most Americans didn’t want.

Forty-one percent of voters approved of the job the Supreme Court was doing, according to a May Quinnipiac University poll. The majority (52%) disapproved. That was the highest disapproval rating recorded by Quinnipiac since it started asking about the court’s approval back in 2004.

The court’s standing is a reversal from where things were two years ago when 52% of voters approved and 37% disapproved in Quinnipiac polling.

Quinnipiac isn’t the only pollster to show a major degradation in the court’s standing. The percentage of Americans (25%) who have great or quite a lot of confidence in the court is at the lowest level ever recorded by Gallup since 1973.

The slide can primarily be attributed to Democrats. Today, 78% of Democrats disapprove of the job the court is doing, according to Quinnipiac. In 2020, just 43% did. Republican disapproval of the court has declined from 38% two years ago to 28% now.

The reason the public and Democrats have turned against the Supreme Court is pretty clear: It’s been seen as increasingly political and issuing decisions that aren’t popular.

The aforementioned Quinnipiac poll showed that a mere 34% of voters believed the court is mainly motivated by the law. Most (62%) felt that the Supreme Court is mainly motivated by politics. Four years ago, the split was far more even, with 50% believing the court was mainly motivated by politics and 42% saying it was mainly motivated by the law.

Again, this trend is driven by Democrats. Eighty-six percent of them told Quinnipiac the court is mainly motivated by politics. That’s up from 60% in 2018. Republicans who said the same had barely changed, from 46% in 2018 to 42% now.

It would be one thing if the court was seen as activist and making popular rulings. It’s not. Both the Gallup and Quinnipiac polls were taken after word leaked in May that the court was on the precipice of overturning Roe.

Americans agreed with the 1973 Roe ruling. A May NBC News poll found that 63% of them didn’t want Roe overturned. Indeed, every poll Enten knows of has shown a clear majority of Americans in favor of Roe.

This has pretty much always been the case, going back to 1973, when 52% favored the decision in a poll by Louis Harris & Associates.

Indeed, Enten is not sure he can recall another controversial and consequential Supreme Court decision that was this unpopular.

Polls found a split public when the court mostly upheld the Affordable Care Act in 2012.

A majority of Americans (54%) were in favor of the court stopping the hand recount in Florida that effectively ended the 2000 presidential election between George W. Bush and Al Gore, according to a CBS News poll at the time.

A majority (55%) also approved of the court’s decision to desegregate public schools in 1954’s Brown v. Board of Education.

One could argue that what the Supreme Court has done in overturning Roe is unprecedented from a public opinion point of view.

What effect it will ultimately have, however, is yet to be determined.

Record midterm turnout looks possible

One potential impact of the Supreme Court’s latest ruling is that it could make people more likely to turn out to vote — in a cycle that is already seeing really high turnout.

In other words, we could be looking at a second consecutive midterm with a record turnout.

Through Tuesday, turnout in primaries is up 13% in the states that have voted so far compared with this point in 2018. (This does not include states where statewide turnout by party was unavailable for either 2018 or 2022.)

The 2018 turnout, itself, was up from both 2014 and 2010. In fact, 2018 had the highest midterm turnout — as a percentage of the voting-eligible population — in more than a century.

The high primary turnout shouldn’t be surprising given what we saw in Virginia last year or in the polling so far this cycle. The competitive 2021 Virginia gubernatorial election had the highest turnout for an off-year election in the commonwealth since at least the mid-1990s.

Further, more voters are extremely enthusiastic about voting this year than in either 2010 or 2014, according to CNN/SSRS polling. And that extreme enthusiasm matches how voters felt at this point in 2018.

Under a slightly different metric, ABC News/Washington Post polling has found more voters saying at this point in the midterm cycle that they’re certain to vote in November than at similar points in 2010, 2014 or 2018 cycles.

Enten points out that under all these turnout metrics, Republicans have been doing better than Democrats. Turnout is up 28% in Republican primaries from 2018, while it is down 2% in Democratic primaries. Republicans are more enthusiastic and certain to turn out than Democrats, according to the polls.

The fall of Roe could alter that dynamic, at least a little bit. A majority of Democrats (55%) said in a May Kaiser Family Foundation poll that they would be more motivated to turn out in the midterms if Roe were overturned. Only 23% of Republicans said the same.

Put another way, the overturning of Roe means we might not only be looking at record Republican turnout come November. Democrats may end up not being too far behind.