Bench Memos

New York Times: Supreme Court Should Follow Polls

Sunday’s New York Times included an editorial arguing that trust in the U.S. Supreme Court “has been undermined by controversies surrounding the court’s lack of openness in how justices deal with ethics questions and in the court’s continuing refusal to let oral arguments be televised.” The Times then argues that the Court needs to adopt new recusal rules and allow televised coverage of its proceedings. The only data cited by the Times for its sweeping conclusion is a 2011 Gallup survey showing a drop in the Court’s approval rating.  

Let’s assume for a moment that there has been a significant drop in the public’s confidence in the Court (although statistically it’s not out of line with the historical trends), and that we should be asking ourselves “why” and considering responses. As Gallup explained when it released the survey results, such a drop “could be a result of the broader decline in Americans’ trust in government in general, rather than a response to anything the court has done recently, because the court has been out of session since early summer.”  

It could also be that the public is responding to the barrage of attacks on the Court coming from institutions like the Times, members of Congress who wish to destroy the reputations of conservative justices, and opinion leaders like Justice O’Connor who are on a campaign to prove that American judges are corrupt.  

For comparison, the New York Times’s own drop in circulation and ad revenue that parallels the Court’s approval rating could be the result of the general move away from print media or a no-confidence vote for the Times’s own distinctive perspective on the news. Both are possible interpretations of the numbers, but the statistics alone can’t sort out the reason.  

The suggestion that the public opinion of the Court is at all — let alone seriously — affected by the lack of cameras in the courtroom is laughable, despite former senator Arlen Specter’s long-running campaign to get the Court to televise arguments (he even used that as a basis on which to vote for Supreme Court nominees!). In an age where transcripts are available online the day of the arguments, audio recordings are available within days, and seats are always free to the public, it’s hard to imagine what adding C-SPAN access would do to significantly affect the public’s opinion of the courts — whatever the other arguments in favor of cameras may be. It could save New York Times reporters the trouble of sitting in the courtroom if they want to be the first to break Supreme Court news, but it certainly isn’t the case that there is anything secret or sinister going on that cameras would clear up. 

I was also entertained by this line arguing that our only unelected branch of government should actually be taking its cues from public-opinion polls:

But there is another way to think about the value of the senators’ ethics suggestions and the cameras bill. They are good indicators of public concern, and the justices should take heed. 

Add that one to your files, and, next time Congress takes a more conservative approach to a legal or constitutional issue, see if the Times cites it as a “good indicator of public concern” that the justices should “heed.”  


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