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The Democratic Strategist

Political Strategy for a Permanent Democratic Majority

Public Wants Supreme Court Reform

Less than half of Americans approve of the job the U.S. Supreme Court is doing, according to a new Gallup poll conducted July 7-10, reports Rebeca Rifkin of Gallup Politics:

Americans remain divided in their assessments of the U.S. Supreme Court, with 47% approving of the job it is doing, and 46% disapproving. These ratings are consistent with approval last September, when 46% approved and 45% disapproved, and rank among the lowest approval ratings for the court in Gallup’s 14-year trend.
Since Gallup began asking the question in 2000, Americans have typically been more likely to approve than to disapprove of the job the Supreme Court is doing. However, the margin between the two has been narrowing since its recent high point in 2009, and Americans were divided over the court in 2012 and again in 2013. Separate polling found that confidence in the Supreme Court also fell to record lows this year, as Americans’ confidence in all three branches of government is down.

It’s a partisan thing, as Rifkin notes. Numbers rise and fall in response to recent decisions, with Republican approval of the court spiking up in response to the Bush v. Gore, Hobby Lobby and abortion/contraception clinics buffer zone decisions, and Democratic approval tanking. The Democratic respondents high (68 percent) was reached after the decision upholding Obamacare. Rifkin did not note the numbers after the Citizens United decision.
While nearly 2/3 of the Supreme Court’s decisions this term have been unanimous, the high profile cases like Hobby Lobby tend to polarize public opinion. Regardless of how the public feels about the court, however, it’s not likely to become a pivotal issue for voters in the foreseeable future.
It would be interesting for Gallup or other pollsters to ask respondents how they feel about increasing the size of the court to 11, in order to make room for genuinely moderate justices.
It doesn’t require a constitutional amendment to increase the size of the Supreme Court. Article III authorizes the Congress to determine the number of justices. The U.S. started out with six justices, as a result of the Judiciary Act of 1789, grew to 7 in 1807, then 9 in 1837 and 10 in 1863. In 1866, however, the Judicial Circuits Act of 1866 provided that the next three justices to retire would not be replaced, reducing the size of the Court to 7 by attrition. The Court shrank by two seats until the Judiciary Act of 1869 set the number of justices again at nine, where it has remained unchanged.
FDR got into big trouble trying to “pack” the Supreme court, proposing to appoint a new justice for each incumbent Supreme Court justice who reached the age of 70 years 6 months and refused to retire — appointments which would continue until the court reached 15 justices. The political fallout was disastrous for Roosevelt.
The public may, indeed be somewhat wary about increasing the size of the court, which the Republicans would likely flog as “big government” liberalism. But FDR’s mistake may have been overreach — the maximum size of 15 he requested. A 2012 CBS/New York Times poll indicated that 60 percent of the public thought lifetime appointments for the Supreme Court justices is a “bad thing.,” with just 33 percent saying it was a good thing. Another indication that the public favors some reform of the high court is reflected in polls showing strong support for televising the proceedings.
Adding two justices might be more acceptable to the public, despite the certainty of an all-out GOP propaganda campaign against it. Nonetheless, it’s a needed discussion which might resonate in the current political climate — and one which Democrats should certainly lead the next time we get a landslide.

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