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Essential Politics: Liberal activists see Supreme Court as a major threat; they haven’t convinced voters

Supreme Court nominee Judge Ketanji Brown Jackson smiles broadly as she stands next to Sen. Susan Collins of Maine
Sen. Susan Collins (R-Maine), left, meets with Judge Ketanji Brown Jackson on March 8. Collins’ announcement that she would back Jackson virtually assured her confirmation to the Supreme Court.
(Kent Nishimura / Los Angeles Times)
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When Judge Ketanji Brown Jackson becomes Justice Jackson — a promotion now all but certain — she’ll be the first appointee of a Democratic president to join the Supreme Court in nearly 12 years.

Three Republican appointees have joined the high court in the meantime, cementing a solid 6-3 conservative majority built through tactics that many Democrats see as theft.

The Republican blockade of Judge Merrick Garland in 2016 held open the vacancy that President Trump filled in 2017 with Justice Neil M. Gorsuch. In 2020, the mad rush to confirm Amy Coney Barrett after the death of Justice Ruth Bader Ginsburg gave conservatives the seat they needed to dominate the court, potentially for years.

The success of those GOP moves has left many activists on the left viewing the high court with dread.

Among environmentalists, abortion rights activists and civil rights leaders, it’s common to hear the Supreme Court majority described as an existential threat — a reactionary force hellbent on undoing key liberal victories of the past half-century, perhaps longer.

They point to several lines of evidence, including comments by conservative justices suggesting they want to dramatically reduce the power of federal regulatory agencies; remarks by Republican lawmakers saying the court should give states free rein not just to ban abortion, but to restrict other long-established rights, such as access to contraception; and a string of cases that have undermined key parts of the federal Voting Rights Act.

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Most Democratic voters, however, don’t share that view — not yet, anyway. That’s one big reason why the campaign on the left to increase the size of the court, which would allow President Biden to appoint additional justices, has gone nowhere. Democrats pay more attention to the high court than they used to, but there’s still nothing to match the intense, decades-long focus Republicans have brought to bear in shifting the court to the right.

Liberal decisions still shape perceptions

Jackson is on track for confirmation later this month because she shares the qualifications that have defined successful nominees for the last half-century and, just as importantly, because the public backs her.

A poll released Wednesday by Quinnipiac University, for example, found that by 51% to 30%, Americans said the Senate should confirm Jackson, with 19% expressing no opinion. By 52% to 27% the public disapproved of how Senate Republicans have handled the nomination; they approved of how Democratic senators have acted 42% to 34%.

That reflects a widespread belief among Americans that if a nominee to the high court is qualified and doesn’t have a major ethical problem, senators should not impose an ideological test.

About 6 in 10 Americans say senators would not be justified if they rejected a nominee because of how that person would vote on major issues like abortion, affirmative action or gun control, according to the Marquette University Law School Poll, which has surveyed American attitudes toward the Supreme Court for several years.

Republicans and Democrats are each more likely to express that view when their own party controls the White House, but over the years, a majority of Americans has opposed ideological litmus tests for the high court.

The public, by and large, also doesn’t view the court as a starkly ideological body.

Three big findings stand out from Marquette’s latest survey:

  • Most Americans see the court moving right.
  • But they don’t see the justices as extremely conservative.
  • And a majority, 54% to 45%, approves of how the court does its job.

“There are an awful lot of people who are only casually engaged by the court,” said Charles Franklin, the director of the Marquette poll. But in “a rough and ready way,” the public does have a fairly clear view of what they think of the justices, he said.

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About half of the people Marquette polled said the court has become more conservative over the past 15 years, compared with 30% who said it hadn’t changed much and 20% who said the court had grown more liberal.

But while many activists see the court as extremely conservative, the public — including many Democrats — mostly doesn’t.

In the latest survey, about two-thirds of Americans saw the court as either moderate (36%) or somewhat conservative (37%). Just 15% of Americans said they see the high court as “very conservative.” Even among those who identified themselves as “very liberal,” fewer than 3 in 10 saw the court as very conservative.

Approval of the court has declined in recent years and is notably lower among liberals than conservatives, the Marquette survey found. At the same time, the partisan and ideological divide about the court is not nearly as sharp as the split over other government institutions or major issues.

Nearly two-thirds of Republicans and Republican-leaning independents, for example, say they approve of the court’s handling of its job; so do about half of Democrats.

Compare that with the huge partisan divide over the presidency: In numerous polls, well over 80% of Democrats, but only about 10% of Republicans, say they approve of Biden’s work, a gap that mirrors the one that existed during Trump’s presidency.

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A couple of key factors go into shaping those views.

The public doesn’t pay a huge lot of attention to most Supreme Court decisions. Much of what the court does tends to be highly technical and often one or two steps removed from directly affecting people’s lives.

And for decades, the rulings that have stood out have mostly been liberal ones.

That’s continued even in recent years as the court has moved right. No recent decision has attracted more attention — or had as much impact on people’s lives — than the 5-4 ruling in 2015 that legalized same-sex marriage nationwide. Another case two years ago, holding that the main federal civil rights law protects LGBTQ Americans against employment discrimination, also got a lot of attention.

By contrast, some of the court’s big conservative rulings — eviscerating important parts of the Voting Rights Act, for example — have a limited amount of immediate, visible impact. Other decisions, such as the string of recent cases expanding the rights of religious groups and individuals have come incrementally and haven’t drawn the level of attention that the gay rights rulings received.

The polling reflects that. In the Marquette survey, 71% said that over the past 15 years, the court had expanded the rights of LGBT Americans, compared with 14% who said the court had reduced those rights.

Asked about other groups, however, the public was far less certain. Only 31%, for example, said the court had expanded the rights of religious people and organizations compared with 23% who said it had reduced those rights and 46% who said the court had not changed much either way.

Similarly, just 25% said the court had reduced the rights of minority voters, compared with 36% who said it had expanded those rights and 39% who said it had not changed much. Black Americans were a bit more likely than white Americans to say the court had reduced voting rights, but in both groups about 4 in 10 saw no major change.

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“Gay rights stands out” in the public’s mind, Franklin noted. By contrast, on the religion cases, “the public doesn’t see it at all. Those cases don’t tend to be super high-profile.”

This year could change all that. In December, the justices heard arguments in a case challenging a highly restrictive abortion law from Mississippi. The justices’ comments during the argument signaled that when the ruling comes, likely in June, they will vote to greatly scale back abortion rights.

By more than 2-1, Americans say they would oppose a ruling that overturned Roe vs. Wade, the court’s 1973 abortion decision. Now, that’s on the verge of happening, and the impact could be enormous, both for individual women and for the court.

“It’s push come to shove,” Franklin said.

Fallout from the nomination hearings

Thirty years ago, the patronizing and bullying behavior of senators toward Anita Hill, witnessed live on national television, prompted not just anger and revulsion but a political backlash that helped lead to the election of several women as U.S. senators. Don’t expect a similar impact from this year’s questioning of Judge Jackson, Mark Barabak wrote. That’s partly because of accidents of timing, but also because of shifts in news coverage, political culture and the nation’s capacity for outrage.

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