Welcome to FiveThirtyEight’s politics chat. The transcript below has been lightly edited.
maya (Maya Sweedler, senior editor): The Supreme Court released its final decisions of the October Term 2022 on Friday, striking down President Biden’s student loan forgiveness plan and siding with a wedding website designer who wanted permission to refuse to serve same-sex couples, though no couples asked her to do so.
This marks the end of the second complete term with a court made up of six Republican appointees and three Democratic appointees. In that time period, this court has struck down the federal right to abortion; ended affirmative action in college admissions; expanded gun rights; preserved the status quo on election law; upheld a piece of the Voting Rights Act of 1965; and limited the executive branch’s regulatory authority.
A lot of ink has been spilled on the direction the court has been moving, but let’s start by limiting ourselves to the most recent term. What are your biggest takeaways from another consequential set of decisions?
ameliatd (Amelia Thomson-DeVeaux, senior reporter): This term, we didn’t get a blockbuster ruling that’s likely to dramatically reshape public opinion, like last year’s decision in Dobbs v. Jackson Women’s Health Organization. And that’s completely to be expected — Dobbs was a once-in-a-generation event. Supreme Court cases almost never have that kind of broad political impact. But despite a few surprises, which I’m sure we’ll talk about, what we saw is essentially a confirmation of what we already knew. The six conservative justices are mostly on the same page about major right-wing priorities, and while they’re unwilling to write right-wing plaintiffs a blank check for anything they want, they’re delivering major victories for the right.
cooper (Cooper Burton, researcher and writer): It feels like a theme of the last few years has been for the court to release one or two compromise decisions followed by a string of solid conservative rulings. Like Amelia always says, the justices are politicians too! They know how to spin a PR cycle. Saving the biggest and most conservative decisions until the last few days, when lots of people already have a half-baked narrative formed about how the term went, is a smart way to try to blunt the backlash. I didn’t see that change much this year — the affirmative action and student loan forgiveness cases, among the most impactful of the term, were handed down on the last two days and both were decided by 6-3 conservative majorities.
gelliottmorris (G. Elliott Morris, editorial director of data analytics): I agree with Amelia’s comments on partisan priorities. To me, the story on the court this term is bigger than direction. I find myself thinking more about the sheer magnitude of its decisions over the last term: Students for Fair Action v. Harvard, Allen (formerly known as Merrill) v. Milligan, the Clean Water Act smackdown and Moore v. Harper — these cover some of the most consequential areas of public policy for the American people. And the impact increases when you consider the structural forces at play. These decisions are coming from justices with lifetime appointments to the Supreme Court, and who were nominated by a president elected with less than an 80,000-vote margin in 2016. Despite the theory that the judiciary is independent of the other branches and not subject to partisan politics, that’s not really true in our era of partisan, one-dimensional polarization (and it’s questionable whether it was ever true, frankly). Elections have consequences!
ameliatd: Your question about whether this term was to the right or the left of the previous one is really important, Elliott, and it’s one that we struggle to measure quantitatively. Within the next few days, we’ll get Martin-Quinn scores, which are widely accepted metrics of how conservative or liberal the justices were relative to each other. But although those scores are frequently used to track change over time, they can’t really show that if conditions surrounding the court are changing too. For example, they don’t account for the docket that the court was looking at each term, or the cases they could have taken and didn’t. And they don’t give us a sense for how the justices line up against public opinion, which is another way of evaluating how liberal or conservative the court is shifting.
gelliottmorris: For the nerds, I also really like the “Bridge Ideal Points” as a potential addition to the Martin-Quinn score. And while I’m not totally sold on putting Supreme Court justices and members of Congress in the same ideological space, I like how the algorithm lets the ideological divides of the justices change over time.
maya: Let’s talk about the types of cases the court has been picking up. In her dissent on Friday, Justice Elena Kagan suggested that the most surprising aspect of the student loans decision wasn’t that the court’s conservative majority decided to strike it down, but the fact that it took the case at all. Is there any reason to think that the types of cases the court is agreeing to hear are different?
ameliatd: We know anecdotally that the Supreme Court is taking more far-reaching questions from conservative plaintiffs than they did in the past (like, for example, if the constitutional right to abortion should be overturned). This term’s case on the independent state legislature theory is another example. And they’re also considering cases that would have been slam-dunks in the past, like this term’s case on the Voting Rights Act. I’m not sure whether term-to-term comparisons are the important ones, either — I tend to think of the court in eras, and this era of the court with six conservative justices has veered to the right on other metrics too.
cooper: I think the decision to hear the case in 303 Creative v. Elenis was telling, too. As you mentioned earlier, Maya, the web designer in the case never had any same-sex couples ask her to design a website. It feels like this case wouldn’t have been taken up in the past, or at least would have been thrown out for lack of standing. But the justices seemed quite eager to rule on the merits of it this term.
gelliottmorris: Right. The Court has never been completely nonideological — that’s unavoidable in a two-party system — but this term really has the vibes of justices taking up cases (and in some instances, not taking them!) to assert ideological priorities. When the court declined in February 2022 to intervene in the case involving Alabama’s congressional map, saying that it was too close to an election, it definitely came off as ideological. (That case became Allen v. Milligan, decided last month.) And it turns out that that decision probably cost Democrats a seat in the House!
ameliatd: To me, it’s interesting to see what has changed before and after former President Donald Trump nominated three justices to the court. There are a couple of places where this is especially instructive:
- Affirmative action. In 2016, the court ruled in a 4-3 decision that the race-conscious admissions policy at the University of Texas at Austin, was lawful. Only one justice in that majority — Sonia Sotomayor — is still on the bench. (Kagan recused herself from the case because of prior involvement.) All three conservatives in the minority are still here. And this time, they voted in the majority to strike down Harvard and UNC’s race-conscious admissions policies.
- Anti-LGBTQ discrimination. This is a little more complicated, because the case I’m about to reference — our old friend Masterpiece Cakeshop v. Colorado — is a bit different than the one Cooper just mentioned, but essentially in 2018 the court got a similar question about whether a public business could refuse to serve LGBTQ customers, and the court punted. Roberts and Gorsuch were both in that majority, but this year, Gorsuch wrote the majority opinion in a case that could have really broad implications for anti-discrimination law.
The exception, of course, is the case Elliott just mentioned — about Section 2 of the Voting Rights Act. Chief Justice John Roberts surprised a lot of people by not taking the opportunity to gut part of the VRA, which is what he did back in 2013, when his majority opinion knocked the teeth out of the law’s preclearance requirement, making it possible for states with histories of racial discrimination in voting practices to make new laws without getting the federal government’s sign-off. But it’s interesting to see these issues bouncing back up to the court. Mostly, they’re getting a very different reception.
gelliottmorris: Amelia, you mention affirmative action. The implication here is that the conservative justices haven’t changed their minds over the last X years, the composition of the court just changed enough for them to issue their original decision. If that’s true … that does strike me as the type of thing that would erode confidence in the court (which is already at an all-time low).
ameliatd: It is … assuming that people are aware the shift happened in a particular area of law. Which they’re mostly not, except in big high-profile cases like Dobbs.
maya: Let’s stay on that decision about the Alabama congressional map, which struck me as one of the bigger surprises of the term. What are the different ways to read that decision?
cooper: It’s definitely a big win for Democrats. The decision is likely to result in three or four Black Democrats flipping Republican-held seats in the House of Representatives next election. And those new VRA seats aren’t just for the 2024 election — they’re likely to last many years into the future and will be crucial components in any future Democratic House majority. The decision reads well with the public too — according to SCOTUSPoll, 53 percent of Americans agreed that the lines should be redrawn.
ameliatd: Guys, I think if Roberts ever wants to leave his cushy gig as chief justice, he’s got a real knack for PR. As you noted, Cooper, the first big ruling of the term was also the first big surprise. That disrupted a lot of people’s expectations and a new narrative started to form — where after last year’s highly unpopular abortion ruling, the court was moderating.
Obviously I’m being a little silly here — I don’t know that this was deliberate on Roberts’s part. But generally he’s proved himself very savvy in trying not to do too much too quickly while still accomplishing the conservative justices’ major priorities.
gelliottmorris: Hard to leave a job you have for life!
I also was relatively shocked by the decision in Allen v. Milligan. The court’s earlier opinions seemed to indicate that conservative justices, especially Roberts and justices Clarence Thomas and, to a lesser degree, Brett Kavanaugh (who earlier expressed doubts about the plaintiffs’ claims), would be hostile to rulings upholding basically any VRA protections for majority-minority districts. But in the first part of the majority’s decision they moved in the complete opposite direction, with the five justices holding that the Alabama secretary of state’s “race-neutral benchmark” theory of evaluating Congressional districts was a violation of the VRA. Some may even read that as a relative expansion of the law. Kavanaugh’s note emphasizing that the application of redistricting precedent ought not to change until Congress changes a law was equally surprising to me.
ameliatd: Again, though, it’s a matter of perspective. Legal experts told me before the ruling came down that in another era, this wouldn’t have been a question. It was just so obvious, they said, that Alabama’s map violated the VRA because it was possible for them to draw that second district. The facts were really, really persuasive. One thing that is important to remember — the Supreme Court has already done a lot to weaken Section 2 over the past 20 years, to the point where it’s very hard to bring a successful Section 2 claim. And this ruling definitely didn’t change that reality.
gelliottmorris: Right — Thomas’s dissent was essentially a copy-paste from the decision in Shelby County v. Holder!
ameliatd: BUT it is an important reminder that as I said last year, the Supreme Court is not as conservative as Clarence Thomas, it’s as conservative as Brett Kavanaugh. And there is definitely daylight between Thomas and Kavanaugh.
maya: The question becomes, then, where is Kavanaugh relative to the country?
There’s a lot of institutional mistrust in the U.S. today, and the Supreme Court is certainly not immune. Where does public opinion on the court stand, and how has it changed in the almost five years since Kavanaugh joined the bench?
cooper: As you might expect, it’s abysmal. As I wrote last month, net approval of the court was -8 percentage points immediately following Dobbs last year. And in September, disapproval of the court in Gallup’s annual polls was the highest it had ever been since they started asking the question back in 2000, up 16 points from when Kavanaugh joined the bench. That’s not a great position for the institution to be in, particularly one led by a chief justice so ostensibly worried about preserving the court’s credibility.
In terms of the justices themselves, though, public opinion hasn’t really changed much. Comparing polls from YouGov/The Economist immediately following Dobbs and from last week, the justices’ personal favorability ratings have stayed mostly the same, though the percent of respondents who were unsure increased for every single justice. That’s probably due to voters thinking about Dobbs less as it gets further in the rearview mirror, though it is notable that most justices haven’t seen more than a 2-point change in their favorability ratings since then. It’s also notable that the three liberals have the highest ratings of the court, averaging a net favorability of +12 percentage points. The court’s conservatives, on the other hand, have an even average net favorability rating. That alone seems to be a pretty clear indication of what the public thinks of the new 6-3 majority.
gelliottmorris: From the Supreme Court Public Opinion Project, we also have some pretty ironclad evidence comparing the mass perception of the Supreme Court’s ideology to that of the median voter. I’ll quote from their most recent paper:
“To summarize, there was no meaningful change in the court’s ideological position relative to that of the general public, and relative to those of Republicans and Democrats, between 2010 and 2020, despite Roberts replacing Kennedy as the court’s median voter. There was, however, a sharp shift when Kavanaugh replaced Roberts as the court’s median in 2021, with the court moving away from the general public to correspond almost exactly to the ideological position of the average Republican voter.”
If I can pull one thing out of Cooper’s links, it’s that the public perception of the Supreme Court was never all that good! Confidence has been below 50 percent since 2003.
ameliatd: LOL that’s funny, Elliott, because the Supreme Court has been the most popular branch of government for a long time.
gelliottmorris: Yeah, well, I guess that says a lot about the other guys.
maya: I definitely wouldn’t brag about being more popular than Congress …
cooper: It’s a race to the bottom!
ameliatd: But yeah — there’s other research hinting at the court’s rightward shift. For example, Christian conservatives are much likelier to win under this court than they were in the past.
maya: Do we have any sense for the type of moves or decisions that drive Supreme Court approval down? Where are the historic inflection points?
ameliatd: Honestly, the Supreme Court is in the best position from a PR perspective when it can mostly escape Americans’ notice. And that’s been the reality for a long time. The relatively short period when the court dramatically expanded rights, in the 1960s, has been very hard to dislodge in the public consciousness, even though the court has been steadily trending to the right since the early 1970s.
cooper: We know that compromise rulings tend to get overshadowed by the non-compromises, at least in public opinion. Most of the marquee cases in the last few years have fallen along ideological lines, with only a few exceptions (like Moore v. Harper). Compromise rulings on, say a vaccine mandate for health care workers or the “Remain in Mexico” immigration policy — though still cases with major policy impacts — are not staying in most people’s minds as soon as they hear that Roe v. Wade was overturned or that their student loans won’t be forgiven after all.
As I mentioned above, this string of conservative rulings in the last few years has contributed to the Supreme Court’s historically high (though potentially moderating) disapproval rating. I guess it’s possible that the court’s approval might be even lower if those compromises didn’t go the way they did. There’s no way to know. But I’m skeptical that Roberts’s strategy of two steps forward, one step back on conservative rulings will improve the court’s standing among the public (because it hasn’t so far!).
ameliatd: Mostly, in the past, disapproval of the Supreme Court has been pretty short-lived. Bush v. Gore was not a popular ruling, and approval of the court dipped in its aftermath. But it bounced back pretty quickly. There is a theory that the court has moderated itself to avoid running afoul of public opinion, but the main example of a public backlash I can think of happened in the 1970s, when the justices issued a ruling that significantly limited the death penalty and then walked it back a couple years later after a number of states rewrote their laws to get around it.
What’s interesting to me about the current moment is that Democrats are particularly apt to underestimate how conservative the court is, per that research Elliott cited earlier. But the researchers found that started to change in 2021. And if Democrats are mad at the Supreme Court and stay mad, that means the justices will be under an unwanted microscope and their decisions could have more influence on how people vote.
gelliottmorris: I think there’s also room for a “thermostatic” evaluation of the Court. Drifting too far to the right or to the left causes a knee-jerk reaction among the public. Though that may look a little muted compared to the reaction after Dobbs, as Amelia noted earlier.
ameliatd: On the other hand, I’ve covered the Supreme Court for long enough to be skeptical of the idea that even major Supreme Court decisions will cause permanent blowback. Dobbs is the exception that proves the rule, in a sense.
gelliottmorris: Amelia, your last comment makes me think about what’s next. While institutional change probably isn’t going to happen anytime soon, it’s worth noting that ideology correlates extremely well with support for term limits and adding justices.
ameliatd: And other than voting against Republicans to keep them from appointing more justices, there isn’t a whole lot Democrats can do. Court-packing is a tall order.
gelliottmorris: Very tall indeed. So where does that leave us? In my mind, probably with lower and lower confidence in the Court to do the “right thing,” higher polarization in perceptions of its role in our democracy, and higher and higher stakes of its jurisprudence.
ameliatd: One thing that was very obvious this term is that the right and left wings of the court are getting further and further apart. The justices attacked each other in their opinions, sometimes in shockingly personal terms. Setting aside Justice Neil Gorsuch’s penchant for carving his own path on certain issues, the polarization that we see throughout our politics has settled thoroughly into the Supreme Court.
