The Toll of Declining Trust: Can America’s Faith in the Courts be Restored?

Less than half of Americans approve of the way the United States Supreme Court is handling its job, according to a July 2022 Gallup poll. Just prior to the Court’s landmark decisions this year in Dobbs, Kennedy and others, only a quarter of Americans reported having a “a great deal” or “quite a lot” of confidence in the Court, a historic low in Gallup’s 50-year survey.

The SDCBA’s tenth annual Bench-Bar Media Event on August 25, 2022 drew about 110 attendees interested in learning more about the toll of America’s declining trust in the courts. Ninth Circuit judge Margaret McKeown, constitutional law scholar Erwin Chemerinsky, and Los Angeles Times Supreme Court reporter David Savage discussed some of the reasons for the decline and offered ways of restoring America’s faith in the judiciary.

Politics, Media, and the Court

One reason for low public trust is the ideological divide between the conservative and liberal justices, said Savage, a Supreme Court reporter of 36 years. In fact, Gallup in July 2022 reported the highest-ever partisan disparity in public approval of the Court. Many news outlets sensationalize Court opinions according to a particular political leaning and demonize other outlets as “fake news,” Savage explained, further contributing to public perception of a politicized Court.

The panelists discussed the importance of stare decisis and a consistent approach to constitutional interpretation in order to promote public confidence in the judiciary.

“You can’t be a textualist today and then some case comes in and textualism doesn’t serve your purpose, so you turn into an originalist or something else,” McKeown said.

Originalism—i.e., the approach of applying the Framers’ intent to interpret constitutional issues—is a hot topic in the wake of recent decisions from the Court. Chemerinsky, who is authoring a book on “the dangerous fallacy of originalism,” opined that originalist thought conflicts with important modern rights such as gay marriage, interracial relations, and the right to contraceptives. 

“The reality is, there isn’t a Framers’ intent to discover or a consistent history to find,” he explained. “Inevitably, the originalist justices find the history that supports their position and dismiss contrary history, creating a hypocrisy problem.”

Lifetime Appointments

Lifetime appointments for the justices are another factor potentially affecting public perception of the Court.

Lifetime appointments for the Supreme Court began with the start of our nation in 1787, when the average life expectancy was only 36 years. Nowadays however, lifetime terms can enable justices to serve on the Court for 40 or more years. For example, if Justice Barrett serves until age 90, the age at which Justice Stevens retired in 2010, she will have served a total of 42 years; if Justice Thomas serves on the Court until he is 90 years old, he will have served a total of 47 years.

“This is too much power in one person’s hands for too long a period of time,” Chemerinsky said.

He proposes 18-year, non-renewable terms for Supreme Court justices, to not only limit term length but also to equalize the impact that sitting presidents can have on the composition of the Court during their own terms. However, any change to lifetime appointments would likely require a constitutional amendment, which is difficult to achieve.

The Dobbs Leak: Public Opinion and the Court

While the Court has always been expected to maintain a degree of independence from public opinion, Savage noted that public sentiment seems a bit less influential now than in years past, citing Dobbs as an example. McKeown called the draft decision leak “stunning and outrageous” and an “earthquake within the Court.” Whether the fact of the breach has affected public trust in the Court is yet to be seen. “I’m sure we will see that in a survey somewhere soon,” McKeown said.

To the extent that public opinion may not directly influence the Court’s rulings, Savage suggests that recent decisions delegating authority to state and local governments might empower the public in a different way: the public might take a greater interest in voting to select legislators who align with their views.

Restoring America’s Faith

Diversity on the bench and a focus on public civics education are both key to restoring America’s faith in the legal system, the speakers emphasized.

“My source of optimism comes from the tremendous advances in freedom and equality that have happened over the course of American history,” Chemerinsky said. “Although there’s still a long way to go, look at how far we’ve come.”

Judges and lawyers can work together to improve public trust in the system. Lawyers play a special role because, unlike judges, they can publicly speak on political issues and current events.

“Lawyers are not just lawyers but also constituents, which is a very powerful and significant role,” McKeown said. “The law is not really the province of the legislature or the courts – it’s the province of the people. By speaking out on important issues and being involved in the community, lawyers can really make a difference.”