United States Supreme Court

A Gallup poll last week suggested that a slight majority of Americans (51 percent) approve of the job the US Supreme Court is doing. There’s a partisan split, which is no surprise; the surprise is how it’s split. The poll shows that 61 percent of Democrats approve of the court.

This raises the question: Really?

Perhaps a useful supplementary poll would have determined what percentage of Democrats don’t have the slightest idea what’s really going on.

The Roberts Court, which just entered its latest term, is the most conservative in decades. Justices Sonia Sotomayor, Stephen Breyer, Ruth Bader Ginsburg and newcomer Elena Kagan are the Democratic appointees. The other five were appointed by Republican presidents. This has been the ratio for some time, and with that whole lifetime appointment thing, it’s unlikely to change anytime soon.

This matters, especially considering the cases that the court will most likely hear in the next couple years. Some states have already brought cases against the recently passed health care legislation because it forces people to purchase health insurance. This will give the Court the opportunity to do to President Obama’s modest reforms what the Court of the 30s did to many of the New Deal’s “alphabet soup” programs.

Also, this court will likely hear the case of Proposition 8. Justice Anthony Kennedy – the Supreme Court’s current switch-hitter – occasionally bats lefty, but the marriage debate is a whole different ball game, and the case is far from a home run. Regardless of the impeccability of Judge Vaughn Walker’s logic in giving the initiative a thorough legal beat-down, the High Court tends to vote according to ideology. Justices are not Vulcans, nor are they “umpires,” despite what Chief Justice John Roberts argued during his confirmation hearing. The famous Arizona immigration law will likely soon be on the docket, as well. Who knows what will happen over the next few years.

It’s not just the high-profile cases that should have Democrats worried. As Slate.com argues, it’s the small cases through which the Court can chip away at everything from abortion to Miranda rights.

So why do Democrats like the Roberts Court? Maybe they’re just not paying attention.

The third branch of government is by far the most secretive. It’s easy to think of the justices as wizards serving in some far-away lair near Hogwarts making long-winded decisions on issues of underage magic. No wonder the writers of America: the Book decided to spoof the Supreme Court by including a spread of nine disrobed justices.

Reporting about the Court is confusing as well. Take a recent question put before the Court: Does the pain of a fallen soldier’s family trump a fringe group’s right to freely (but insanely) stage a protest near the funeral site? Even in plain language, it’s a tough question with no clear ideological prescription. But when translated into Supreme Court-speak, the issue becomes a mind-melting puzzle of thought experiments and hypotheticals, probably the most confusing argument since the landmark case of Chicken v. Egg.

People tend to like the court when their party is generally in power. Democrats control the executive branch and (for now) the legislative branch, so that tends to translate to Democratic approval of the judiciary. Furthermore, two of President Obama’s recent public victories have been his judicial appointments. Obama has appointed two liberals in his two years in power, and this may give Democratic voters the impression that they are wining the court.

This would be an illusion.

Liberal Justices Sonia Sotomayor and Elena Kagan replaced David H. Souter and John Paul Stevens, each considered consistent votes for the liberal bloc of the Court. Maintaining the status quo is a modest triumph, at best.

Some of the Court’s more liberal decisions of the last twenty years were made in part because of Sandra Day O’Connor, a Regan appointee whose jurisprudence was characterized by a tendency to split the difference between the extreme wings of the court and rule generally in accordance with public opinion. The opinion she wrote with Justices Souter and Kennedy in Planned Parenthood v. Casey defended the precedent of Roe v. Wade.

Though her decisions usually landed on the conservative side, she was the swing voter. When she stepped down, President George W. Bush replaced her with Samuel Alito, Jr., an “originalist” on the level of Justices Antonin Scalia and Clarence Thomas. Bush originally picked Harriet Miers as O’Connor’s successor, but Miers lacked experience and neocon cred, and she forfeited her nomination due to outside pressure. With Alito’s appointment, the Court began to swerve right.

That made Justice Kennedy the de facto swing-voting moderate, and he usually sides with the conservatives.

This has had a noticeable effect. The most high-profile indicator of the Court’s rightward shift was the case in which the majority in Citizens United v. Federal Election Commission declared that the First Amendment right to free speech guarantees protection for campaign contributions by corporations. This implied two things: 1) That spending is the same as speech, and 2) that corporations have the same rights as people.

Quicker than you could say, “Judicial activism,” retired Justice O’Connor spoke out against the ruling.

This is the court that six out of ten Democrats say they support. Maybe Dems are slowly getting the idea, though. In 2009, after the Obama’s election, 75 percent of Democrats said they approved of the nine in black. Public opinion has changed since then; the ideological balance of the Court has not. Go figure.

Reach Reporter Ryan Faughnder here.