Amy Coney Barrett has been confirmed to the Supreme Court.
The arguments over how Democrats should or could respond began before Justice Barrett was even confirmed, and should Joe Biden become the 46th President and his party gain the majority in the Senate, the debate will only intensify.
According to recent polling, roughly half the country is affirmatively against increasing the size of the Court, with about one-third for it, and the rest undecided or without an opinion.
This suggests that Democrats may be in a bind going forward, stuck with a court that’s decidedly conservative, without support to act to bring it back into ideological balance.
But the story of whether or not Americans will support a change in the Court’s composition is not yet written. Depending on how a 6-3 conservative Court rules on upcoming cases, we may see a dramatic shift in opinion.
The Supreme Court and its role in society is a story about competing narratives. A majority of Americans believe that the selection and a confirmation of a new justice should have waited until after the election and inauguration, and yet Republicans have installed Justice Barrett without paying a political price.
At the same time, Republicans have been successful, thus far, at framing the expansion of the Court as breaking some kind of sacrosanct, longstanding rule. This suggests that Democrats are boxed in. Losing the confirmation battle, and the current unpopularity of “court packing,” leaves them little room to maneuver.
To see how things might change, however, we need to look at how opinions of the Supreme Court shift over time, and what causes those shifts. It also means taking a closer look at the attitudes of younger Americans, Gen Z and Millennials, to better understand how the narrative around SCOTUS may change with events.
Gallup’s annual opinion poll of attitudes towards the Supreme Court is a good place to start.
Even though the balance of the Court during the Obama administration remained largely unchanged, historical Gallup data shows great fluctuations in public confidence in the Court and views of the Court’s ideological makeup. During the eight years of the Obama administration, public approval ranged from a high of 61 percent (Aug-Sep 2009) to a low of 42 percent (July 2016).
In polling completed just prior to Justice Ginsburg’s passing, when asked if the current Court is “too liberal, too conservative, or just right,” a plurality of adults (42 percent) answered “just right.” Nearly one-third (32 percent) said it’s “too conservative, while less than one-quarter (23 percent) said “too liberal.”
Those too liberal / too conservative numbers are almost the inverse of the last two years of the Obama administration, when 37 percent said the Court was too liberal and only 20 percent said the court was too conservative. This was in the aftermath of the Obergefell decision legalizing same sex marriage, a seismic shift in public policy triggered by the courts, and likely one that impacted public opinions about the Court.
Data from our 2018 Willow Poll on public confidence in the U.S. court system fills in some additional blanks.
Taken in the aftermath of the contentious confirmation of Justice Brett Kavanaugh, 66 percent of adults said that “the courts have become too political.”
At the same time, a slight majority of Gen Zs (58%) and Millennials (53%) believe that “court decisions should reflect the majority of public opinion.”
Is this contradictory or consistent? Both? Courts are too political when they’re ruling in ways we ourselves don’t approve of, and for younger Americans, they are perhaps not political enough when they are ruling in ways inconsistent with majority opinion.
Though public sentiment is currently against expansion of the Supreme Court, we’ve seen that attitudes towards the Court are remarkably fluid. If the Court upends laws around healthcare, abortion, gay marriage, voting rights, and climate change, an expansion of the Court may become more agreeable to more Americans.
Right now, Republicans are arguing successfully that any act to expand the number of justices is “stacking the Court.” But over time, if it appears that SCOTUS is thwarting the will of the people, there may be greater sentiment for “balancing the Court.”
Same action, different story. The new Court’s rulings will determine which narrative ultimately prevails.