Court More Liberal Than Public Opinion – The Ninth Justice

National Journal

(This analysis updates my July 12, 2008, column.)

We in the media habitually describe the Supreme Court as made up of four conservatives, four liberals and one swing-voting centrist, Anthony Kennedy. These labels serve reasonably well to situate the justices on the ideological spectrum compared with one another.

But while the court is sometimes called "conservative," it looks pretty liberal if we chart the justices’ rulings and individual views against general public opinion, as measured by poll results on issues including abortion, race, national security, religion, gay rights, gun rights and the death penalty.

The four more liberal justices — John Paul Stevens, David Souter, Ruth Bader Ginsburg and Stephen Breyer — all fall markedly to the left of public opinion on every one of the abovementioned issues. So does Kennedy, when it comes to national security, religion, gay rights, the death penalty and to some extent abortion. Judge Sonia Sotomayor is widely expected to be at least as liberal as Souter, whom she would replace.

If President Obama gets an opportunity to replace one of the five more conservative justices, the new majority will be quite dramatically to the left of public opinion. And voters will, of course, remain powerless to overturn the justices’ constitutional interpretations.

Justices Antonin Scalia and Clarence Thomas fall markedly to the right of center. But the same does not appear to be true — not yet, at least — of Chief Justice John Roberts and Justice Samuel Alito.

Indeed, while those two George W. Bush appointees appear to be politically conservative by some measures, the description of them as far right by the New York Times editorial page says more about the editorialists than about the justices. So far, Roberts’ and Alito’s opinions and votes have been considerably closer to the center than those of the four liberals.

This is not to suggest that the goal of constitutional interpretation should be to mirror public opinion. But insofar as the goal of journalism should be to mirror reality, it may be interesting to compare the justices’ views — and journalists’ portrayal of them — with public opinion on some big issues.

Abortion. Polls have shown for many years that although the public does not want Roe v. Wade overruled — as Scalia and Thomas would do — large majorities support restrictions on abortion that the four liberals would strike down. These include the congressional ban on "partial-birth" abortion. Majorities also support some other restrictions — such as banning abortions in the second and third trimesters and spousal notification requirements — that Kennedy has joined liberals in striking down. In a Gallup poll this May, a combined 60 percent of respondents said abortion should be "legal only in a few circumstances" (37 percent) or "illegal in all circumstances" (23 percent); 22 percent said abortion should be "legal under any circumstances"; and 15 percent said "legal under most circumstances."

Roberts and Alito have not yet specified their views on some abortion-related issues. But their approaches so far — upholding some democratically adopted restrictions on abortion without overruling Roe — have been consistent with mainstream public opinion.

Racial affirmative action preferences. Respondents called for abolishing affirmative-action programs that give preferences to blacks and other minorities by 55 percent to 36 percent, according to a recent Quinnipiac poll (discussed in my June 6 column). In decades of previous polls the public has turned thumbs-down on racial preferences by lopsided margins. In a June 2007 Gallup poll, for example, 70 percent of respondents said that colleges should admit students based solely on merit and only 23 percent said that racial or ethnic background should be considered to promote diversity.

The four liberal justices have consistently supported such governmental racial-preference programs. Kennedy has voted to strike some down but has not joined Scalia and Thomas in condemning virtually all of them. It is not yet clear whether Roberts and Alito would go that far. But if they did, public opinion would approve.

National security. The public disapproved by 61 percent to 34 percent, according to an ABC News/Washington Post poll, of the decision last June in which the four liberals and Kennedy made it easier for Guantanamo detainees to seek judicial review. Roberts and Alito dissented, along with Scalia and Thomas.

Religion. Polls have shown consistent, strong approval of the nondenominational, nonparticipatory types of school prayer that the liberals and Kennedy struck down in major precedents in 1992 (before Ginsburg and Breyer) and 2000. Scalia and Thomas dissented. Roberts and Alito had yet to join the court for those cases, but those two (and Kennedy) sided — to a limited extent — with Scalia and Thomas in a 2007 decision curbing taxpayer lawsuits that challenged some uses of tax money to support religion.

Gay rights. While a May 2003 Gallup poll showed that respondents thought sexual relations between consenting gay adults should be legal, by 60 percent to 35 percent, the margin declined sharply after the four liberal justices and Kennedy ruled the following month that the Constitution protects such sexual relations. A Gallup analysis found that the decision — which helped spur the Massachusetts Supreme Judicial Court to strike down the ban on gay marriage — had sparked a backlash by racing ahead of public opinion. The "should be legal" margin had crept back up to 56-40 in a Gallup poll this May. Scalia and Thomas have argued for leaving gay rights to the democratic process. Roberts and Alito have yet to face a gay rights case.

Gun rights. A February 2008 Gallup poll showed respondents favoring, 73 percent to 20 percent, an individual right to own guns. That was the position of the court’s conservatives and Kennedy — with the four liberals in dissent — in a June 2008 decision striking down a strict District of Columbia gun control law and upholding D.C. residents’ rights to keep guns in their homes for self-defense.

Death penalty. An October 2008 Gallup poll showed public support, by 64 percent to 30 percent, of "the death penalty for a person convicted of murder." The poll found that 21 percent of respondents said the death penalty was imposed "too often," 23 percent "about the right amount," and 48 percent "not enough." The Supreme Court’s liberals, plus Kennedy, have banned use of the death penalty on murderers who were mentally disabled or younger than 18 and on rapists of young children.

On the other hand: In a September 2007 Gallup poll, more respondents saw the court as "too conservative" than as "too liberal," by 32 percent to 21 percent. Forty-three percent called the court "just about right." This seems contrary to the issue-specific polls. Might that have something to do with the way the media has portrayed the justices?