The Supreme Court's Approval Ratings and the Legitimacy of Judicial Review:

In one of the posts in my debate over judicial review with Orin Kerr, I made the point that the Supreme Court's approval ratings are consistently much higher than those of Congress; I also noted that majority public opinion is strongly supportive of the Court's role in invalidating congressional legislation that the justices believe to be unconstitutional. To the extent that the legitimacy of judicial review depends on public approval, that is important evidence in favor of judicial power.

However, University of San Diego law professor Michael Rappaport responds to part of my argument by suggesting that the Court's relatively high approval ratings may be due to the fact that it gets less public criticism than do other branches of government. As he puts it, "criticism of the Court before the public is generally muted by comparison with criticism of politicians." There is something to this point, but not as much as Michael suggests. The Supreme Court has gotten a great deal of public criticism in recent decades. Since at least 1968, conservatives have routinely made the Court's real and imagined liberal "judicial activism" an electoral issue. In more recent years, the Democrats have often attacked it for supposed conservative activism. Judicial nominations have of course been a highly controversial issue since at least the 1980s.

In one sense, the attacks on the Court have been even more thoroughgoing than those on Congress and the presidency. Many conservative and some liberals have argued that the Court's power as such is illegitimate and should be reduced. By contrast, attacks on Congress and the president usually focus on the supposed sins of incumbents, with less effort to claim that the powers of the institution as such should be reduced (the recent debate over George W. Bush's use of executive power may be a partial exception).

Michael is right to point out that the justices are rarely subjected to the kinds of personal attacks as individuals that elected officials face. However, public hostility to an institution can often arise even if the voters know little or nothing about the individuals who work there. Witness Congress' extremely low approval ratings, despite the fact that most Americans can't name their own congressman and know little or nothing about Nancy Pelosi and other top congressional leaders.

To reiterate, I don't believe that strong judicial review of statutes can be justified merely on the grounds that it is popular with the public. Neither do I believe that judicial review becomes illegitimate if the laws it invalidates have strong public support. However, for those who do believe that the legitimacy of judicial review depends at least in large part on the degree to which it has majoritarian support, the Court's very high approval ratings relative to those of the president and Congress are not easy to dismiss. As I argued in my earlier post, they undercut arguments such as Orin's, which hold that judicial review must be strictly limited because legislative enactments have a degree of popular "consent" that the courts lack.