So it should hardly be surprising that public trust in the court has fallen precipitously. According to Gallup, the court’s public approval, which had been running between 60 and 70 percent, dropped to a record-low 40 percent in September 2021. Gallup associated the drop with the justices’ refusal to block Texas’ flagrantly unconstitutional Senate Bill 8, a pre-Dobbs law that effectively shut down abortion in the state by authorizing members of the public to act as vigilantes and sue doctors for performing abortions after six weeks of pregnancy. The public’s disfavor has proved entrenched and unusually persistent. In September of this year, two years after the initial drop, Gallup found that public approval remained near the record bottom, at 41 percent.
What we can’t know are the long-term implications of sustained public alienation from the court. The current situation has upended cherished political science theories about the relationship between the court and the public. James Gibson, a political scientist at Washington University in St. Louis, has been a developer and leading exponent of the “legitimacy theory,” a widely held view that a layer of “diffuse support” — “a reservoir of good will,” as he puts it in a recent academic article posted online — insulates the Supreme Court from lasting negative consequences when it issues unpopular decisions.
The theory was put to its greatest previous test 23 years ago in Bush v. Gore, the case that decided the 2000 presidential election in favor of George W. Bush. Many commentators, and the dissenting justices themselves, predicted that the court would suffer a lasting self-inflicted wound from its intervention into the heart of American politics. But that did not happen. Public approval of the court quickly rebounded. Even so, years later, Justice O’Connor, who had voted with the 5-to-4 majority, appeared to indicate that she viewed the court’s intervention as a mistake.
In his article, to be published in the American Journal of Political Science, Professor Gibson notes that the court is not recovering from Dobbs as it did from Bush v. Gore. Under the title “Losing Legitimacy: The Challenges of the Dobbs Ruling to Conventional Legitimacy Theory,” he suggests that something perhaps unprecedented, even “ominous,” has occurred as the reservoir of good will has seemingly drained away. The data he compiled in the wake of Dobbs challenged his own assumption that “Supreme Court legitimacy is obdurate, difficult indeed to change in the short term,” leading him to conclude that he and other proponents of the legitimacy theory “may be wrong.” In fact, the court’s legitimacy may be “at greater risk today than at any time since Franklin D. Roosevelt’s 1930s attack on the institution.”
Does legitimacy even matter? Professor Gibson observes that “institutions perceived as legitimate have a widely accepted ability to make binding judgments for a political community; those without legitimacy often find their authority contested.” We may see a test of those words soon enough. The justices probably thought they had a breather before the court became ensnared in the coming presidential election. Any such assumption was shattered on Monday when Jack Smith, the special counsel prosecuting former President Donald Trump on charges of plotting to overturn the 2020 election, asked the court to bypass a pending appeal and rule with extraordinary speed on Mr. Trump’s claim of immunity from prosecution.