When the court addresses contentious matters of social policy, its decisions will inevitably please some and anger others. A high favorability rating – as the court enjoyed in the 1980s and ’90s – suggests that people evaluate the institution separately from its latest ruling. For people to approve of a court, even while disagreeing with its decisions, they must view the court outside of a political lens, conceiving it as a non-political institution deciding cases based on principle.
Chief Justice John Roberts clearly understands the need for public approbation, and he seeks to project an image of a court that stands above politics. In his confirmation hearings he famously likened judges to baseball umpires. Last year’s decision in the Affordable Care Act case, or “Obamacare,” and this year’s rulings on affirmative action and same-sex marriage evidence ample efforts to avoid unnecessary political controversy. Why then has public approval fallen to historic lows?
The problem is that the rhetoric of the chief justice does not match the reality of much of the court’s record. The Roberts court has a habit of picking and choosing among hot-button issues, then deciding the cases along ideologically predictable lines. Both the selection of issues and their divisive resolutions signal a thoroughly political court in the eyes of many Americans.
Ironically, the several attempts of the justices to duck controversial rulings may promote a perception of political maneuvering. Chief Justice Roberts’s surprising performance in the Affordable Care Act decision in 2012 was widely perceived as an effort at political compromise. Although he rejected as overreaching the federal government’s main argument in support of constitutionality, he nevertheless provided the decisive vote to uphold the act as a permissible tax.
This year, the court evinced similar political savvy. In the affirmative action case, Fisher v. Texas, the court avoided a decisive ruling by finding that the lower court had failed to apply existing law properly. On that narrow basis, the court remanded the case for a do-over.