Academic highlight: Nelson, Gibson and Fontana on the public’s support for the Supreme Court

Do Americans continue to support the Supreme Court in the face of frequent criticism, including hostile tweets by the president of the United States? That question is particularly important on the eve of yet another confirmation battle and at the end of a term filled with high-profile cases. A recent NYU Law Review Symposium hosted by the Brennan Center for Justice gathered a group of experts to examine the public’s support for the Supreme Court in the face of frequent attacks.

In their contribution, Professors Michael Nelson and James Gibson surveyed a random sample of Americans to determine whether criticism erodes the Supreme Court’s legitimacy and Americans’ support of that institution. Their findings confirmed previous studies showing that the public’s support for the court is strong, and that it dips more when the court is criticized as politicized rather than for making errors of law. To their surprise, however, they found that the public’s perceptions are affected more by criticism voiced by law professors than criticism by the president of the United States.

In a responsive essay, Professor David Fontana cautions that Nelson and Gibson may have “created a false sense of security that the public deeply and durably believes in the Supreme Court.” He does not take issue with their findings that the public supports the court and values judicial independence in the abstract, or that critiques by legal elites can undermine the institution. But his own research shows that support would dissolve when the stakes are high, such as in the aftermath of a terrorist attack. And he points out that their study does not examine whether the president’s pointed attacks on the courts and on specific judges have taken a toll.

Nelson and Gibson set out to test the types of criticism that affect the public’s support for the court. Legitimacy, or “diffuse support” in political science lingo, is defined as “a reservoir of favorable attitudes or good will that helps members accept or tolerate outputs to which they are opposed or the effect of which they see as damaging to their wants.” To measure that support, Nelson and Gibson first had survey respondents read short vignettes of various types of criticism of the court from different sources, and then asked them about their willingness to consider fundamental changes to the Supreme Court’s institutional structure.

The authors divided the survey respondents into two groups. One group read a vignette criticizing the court as too political (“nothing more than politicians in robes”); half of that group was told that President Donald Trump was the source, while the other half was told that the criticism came from a “bipartisan group of distinguished law professors.” Another group read a vignette criticizing the court on legal grounds (“the Supreme Court justices too often do not follow what the Constitution says”). Again, half of that group was told that the criticism came from the president, and the other half was told it came from law professors. After reading these critiques, all the respondents were then asked whether, if the court decided lots of cases in ways the public disagreed with, “it might be better to do away with the Court altogether” or alternatively reduce its independence. The authors then compared the responses to answers to those same questions a year earlier, when the groups had not been exposed to the critiques.

Nelson and Gibson’s results confirmed earlier studies showing that the public’s support for the court is more likely to deteriorate in response to criticism that the court is politicized than that it made legal errors. (Indeed, this result confirmed Gibson’s previous research. In 2007, Gibson co-authored a study showing that the public’s support for the court dipped during confirmation hearings because interest groups ran ads leading the public to view the court as “just another political institution.”) Nonetheless, their finding is important because it is the first to be based on a nationally representative survey.

To the authors’ surprise, however, they found that survey respondents’ view of the court was more affected by law professors’ criticism that the court was too politicized than by either type of criticism from the president. They concluded that the most likely interpretation of these results is that the public gives weight to the legal experts’ views of the court, while “Trump’s criticisms have become so ubiquitous in everyday life in America as to be rendered ‘cheap talk’ by the American people.” In short, criticisms by law professors pose more of a danger to the public’s support of the courts than does criticism by the president.

Fontana warns that these results should not be taken out of context. He does not disagree with Nelson and Gibson’s methods or results, but he points out that the survey does not measure “how people think about the Supreme Court when they care about the Court.” Fontana observes that Nelson and Gibson’s vignettes and survey questions are abstract, and the policy stakes are low. For example, they had respondents read a vignette describing a “recent speech” by Trump referring to the justices as “politicians in robes” — a bland version of Trump’s colorful early-morning tweets. Nor were respondents asked about the value of judicial independence in the context of specific and high-stakes scenarios.

Fontana wonders if the results would have been different had Nelson and Gibson surveyed respondents’ reactions to Trump’s tweet calling a federal district-court judge “a total disgrace,” or another stating that the district-court judge in Washington who enjoined the travel ban had “put our country in such peril. If something happens blame him and court system.” Survey respondents also might have answered differently, Fontana suggests, had the questions come shortly after a terrorist attack, when the courts are deciding issues about which the public cares deeply. Yet it is at just such moments that the independence of the federal judiciary is most at risk. Fontana’s research has shown that abstract issues such as judicial legitimacy and independence can fall by the wayside when the policy stakes are high. Fontana concludes that although “people report a deep attachment to judicial independence,” it is “an abstract commitment that does not pervasively affect important political behavior—such as voting for a presidential candidate threatening judicial independence.”