Judicial politics

The latest Gallup poll shows that public approval for the Supreme Court has dropped to 39%, the lowest since the polling organization started asking about the high court 25 years ago. That sounds bad, but it’s not statistically different than the low-40s ratings the court has consistently received since 2021, or several times in the mid-2010s, or indeed in 2005. What is significant, however, is the partisan gap. Only 11% of Democrats approve of the job the Supreme Court is doing, while 75% of Republicans do. That 64-point differential exceeds the 61-point gap after the Dobbs decision that overturned Roe v. Wade in 2022, as well as the 58-point gap (in Democrats’ favor) after the 2015 Obergefell ruling that legalized same-sex marriage nationwide. It’s emblematic of polarized opinions about nearly every institution at a time of overall low societal trust.

And it’s not just the nation’s highest court. A December 2024 poll found Americans’ trust in the judicial system as a whole has hit a record-low 35%, with another large gap between those who supported and opposed the outgoing Biden administration.

The partisan divergence in public attitudes toward the judiciary reflects the perception that judges rule in a partisan or ideological way. After all, nearly all the judges who have ruled against President Donald Trump in the slew of challenges to his executive orders and other administration actions were appointed by Democratic presidents, just as nearly all the judges who ruled against President Joe Biden’s initiatives were appointed by Republican ones. That’s in turn partly a function of forum selection: Trump’s opponents sue in Boston, San Francisco, and Washington, D.C., where federal courts skew left, while Biden’s opponents sued in Texas and Florida. But it also represents the culmination of several trends. We’ve reached a point where divergent interpretive theories of constitutional law and statutory interpretation track partisan preference at a time when the parties haven’t been so ideologically distinct since at least the Civil War.

That’s why, even as most cases are nonideological and the Supreme Court rules unanimously nearly half the time, the politically salient cases tend to break down along partisan judicial lines. That dynamic understandably drives political trends on judicial confirmations, which are becoming only more polarized.

FEW SENATORS VOTE anymore for judicial nominees from the other party. For example, Trump’s 234 first-term judicial appointees received about half of all “no” votes in U.S. history to that point, an average of about 22 per judge—compared with just over 6 per judge under Obama, 2 under George W. Bush, 1.3 under Bill Clinton, and fewer than 1 under earlier presidents. In 2019 alone, when the Senate confirmed 102 judges, the second-highest ever for one year, those judges received 88% more “no” votes than all 2,680 judges confirmed in the 20th century.

Moreover, the average Democrat voted against nearly half of all Trump nominees, while the average Republican voted against fewer than 10% of Obama’s. That sounds stark, until you learn that Biden’s 235 judges received more than 9,000 “no” votes, about 39 per nominee. That means that the average Republican senator voted against most Biden nominees. And there was no real difference between district and circuit judges. All were essentially party-line votes, with fewer than 20% of nominees gaining more than 60 votes.

By traditional standards, that’s crazy: Senators aren’t differentiating between higher- and lower-quality nominees, let alone deferring to presidential prerogative. It’s all about politics. But again, we’ve gotten here because of the culmination of a long trend whereby different legal theories map onto ideologically sorted parties.

And that’s reflected in the confirmation process, not just final vote tallies. More than 90% of Biden’s judicial nominees and nearly 80% of Trump’s faced cloture votes—motions to proceed to a final vote that essentially become filibusters if they fail—including many of those confirmed by comfortable margins. In comparison, about 3% of Obama’s nominees faced cloture votes and fewer than 2% did in the preceding five presidencies.

And indeed, Trump’s second-term judicial nominees have picked up where Trump 1.0 left off. All five confirmed through August were on explicit party-­line votes, with an average of more than 46 “no” votes at a time when Democrats have 47 senators. Whether they come from conventional backgrounds in the offices of state attorneys general and the like, or were considered “controversial” like Emil Bove—a pedigreed Justice Department official who had been on Trump’s criminal-defense team—judicial nominees are now seen as radioactive by members of the opposing party.

Federal judges are a big deal, so it’s understandable that senators try to advance or block as many as possible. For them—and for citizens too!—it’s absolutely appropriate to question judicial philosophy. Judicial nominations are now properly an election issue, so it’s heartening that voters are paying attention.

But the judicial wars we’re seeing now, even less than those we’ve seen the last few decades, are not about the nominees themselves. They’re about broader constitutional “vibes.” The left in particular needs its social and regulatory agendas, as pushed by the executive branch, to get through the judiciary. Then you have an overlay of attitudes toward President Trump himself, and away we go.

THE ONLY LASTING SOLUTION to what ails our body juridic is to return to the Founders’ Constitution by rebalancing and devolving power, so federal courts aren’t making so many big decisions for the whole country. Depoliticizing the judiciary is a laudable goal, but that’ll happen only when judges stay in their lanes rather than either ratifying the constitutional abuses of the other branches or joining the #Resistance.

Ultimately, judicial power helps enforce the strictures of a founding document intended both to curtail the excesses of democracy and empower its exercise. In a country ruled by law, and not men, the proper response to an unpopular legal decision is to win power and change the law. Any other method leads to judicial abdication and the loss of those very rights and liberties that can only be vindicated through the judicial process—or to government by black-robed philosopher-kings. And as the late Justice Antonin Scalia liked to say, why would we choose lawyers for that job?

The reason we have these heated court battles is that the federal government is simply making too many decisions at a national level for such a large, diverse, and pluralistic country. Let federal legislators make the hard calls about truly national issues like defense or (actual) interstate commerce—make Congress great again!—but let states and localities make most of the decisions that affect our daily lives.

That’s the only way we’re going to defuse polarization, from the lower courts all the way to the marble palace at One First Street in Washington.

—I­­lya Shapiro is director of constitutional studies at the Manhattan Institute and author of Supreme Disorder: Judicial Nominations and the Politics of America’s Highest Court. He also writes the Shapiro’s Gavel newsletter.