The Supreme Court, Trust, and Political Partisanship

This mini-lesson is designed to be adaptable. You can use the activities in sequence or choose a selection best suited to your classroom. It includes:

• 4 activities
• Student-facing slides
• Recommended articles for exploring this topic

A Pew Research Center survey from September 2022 found that 48% of US adults had an unfavorable view of the Supreme Court, more than at any other time in the last 35 years. This decline has been driven by a widening partisan gap in approval ratings—just 28% of Democrats or Democrat-leaning independents said they had a favorable view of the Supreme Court, while 73% of Republicans or Republican-leaning independents had a favorable view. 

A Gallup poll from September 2022 found a similarly steep decline in trust in the Supreme Court among Democrats, and a more moderate decline in trust among Independents. The survey found that Republican trust in the institution has increased slightly in recent months.

One of the reasons for declining trust in the Supreme Court among Democrats and those who lean Democrat is that it is increasingly seen as a partisan political institution. The drop in approval ratings among Democrats followed a series of controversial Supreme Court decisions that marked a rightward shift in the Court, including the over-turning of the right to an abortion, the strengthening of gun ownership rights, and the scaling back of the Environmental Protection Agency’s ability to combat climate change.

The activities in this mini-lesson are designed with the assumption that students have some knowledge about the Supreme Court and how it functions. Students may need additional background information in order to engage with these activities if they have not previously learned about the Supreme Court. 

Teaching times for each activity are given as a range since they will vary based on students’ prior knowledge about the Supreme Court.

Use the Slides for this mini-lesson to project two charts from a Pew Research Center article that show different aspects of public opinion and partisan views of the Supreme Court. 

After students view the first chart, ask them to discuss the following questions in pairs:

• What are three pieces of information you can learn from this chart?
• What explanations—if any—can you think of for the trends shown in this chart?

Then, have students view the second chart and discuss the following questions in pairs:

• What are three pieces of information you can learn from this chart?
• What explanations—if any—can you think of for the trends shown in this chart?
• Do you think judges should bring their own political views into their decision-making? Why or why not?

After students have viewed and discussed each chart, ask for a few volunteers to share what they talked about in their pairs. Then, read the following excerpt from the Pew Research Center article Positive Views of Supreme Court Decline Sharply Following Abortion Ruling as a class:

Americans’ ratings of the Supreme Court are now as negative as – and more politically polarized than – at any point in more than three decades of polling on the nation’s highest court.

Following a term which saw the Dobbs v. Jackson ruling ending the federal guarantee of the right to abortion along with several other high profile cases that often split the justices along largely ideological lines, this shift in views of the court has been driven by a transformation in Democrats’ views.

Just 28% of Democrats and Democratic-leaning independents now view the court favorably, down 18 percentage points since January and nearly 40 points since 2020. Positive views of the court among Republicans and Republican leaners have increased modestly since the start of the year (73% now, 65% then).

As a result, the partisan gap in favorable views of the Supreme Court – 45 percentage points – is wider by far than at any point in 35 years of polling on the court.

The new national survey by Pew Research Center, conducted among 7,647 adults from Aug. 1 to 14, finds the public overall is split in its views of the Supreme Court: 48% of the public holds a favorable view of the court, while a similar share (49%) holds an unfavorable view.

Positive opinions of the Supreme Court have steadily declined among the U.S. public since August 2020, when 70% of Americans held favorable views of the court. ¹

Discuss with your students:

• How does the information from this excerpt connect to what you learned from looking at the charts?
• What new information did you learn from this excerpt?

Finally, ask students to read the following quote from the US News article Historically Low Public Trust, Legitimacy Questions Mar Supreme Court’s Return:

The court doesn't have an army that it sends in to enforce its decisions,” Jessica Levinson, a professor at Loyola Law School, says. “They rely on us thinking they're legitimate. And so a crisis of confidence or a feeling that the court is illegitimate, and that they're just packed with political actors, not judges, it can truly become a crisis... They rely on us adhering to what they say even when we vehemently disagree with it. ²

Create a Graffiti Board with the following questions and ask students to write their responses under one or both of them:

• What could make people willing to accept Supreme Court decisions even when they disagree with them?
• Why does it matter if people trust the Supreme Court?

(Note: If you teach additional activities from this mini-lesson, you can ask students to revisit the Graffiti Board and add additional responses.)

• 1Pew Research Center, “Positive Views of Supreme Court Decline Sharply Following Abortion Ruling,”September 1, 2022.
• 2Kaia Hubbard, “Historically Low Public Trust, Legitimacy Questions Mar Supreme Court’s Return,” US News, September 30, 2022.

Before engaging with the reading in this activity, it may be helpful to provide the following definitions to your students, if they are not already familiar with the following terms:

Apolitical: “not interested in or connected with politics, or not connected to any political party” ¹

Partisan: “strongly supporting a person, principle, or political party, often without considering or judging the matter very carefully” ²

Read the following excerpt from the Politico article The Supreme Court Has Never Been Apolitical:

Popular dissatisfaction with the Supreme Court today is rooted in a fundamental belief that justices should be apolitical actors — neutral umpires who just call “balls and strikes.” If the Supreme Court were to devolve into just one more political institution, in an age of extreme partisanship and polarization, the fear goes, the guardrails supporting our Constitutional system would fall away.

It’s not an unreasonable concern. But the idea of an apolitical court is a fairly recent development. For the better part of American history, the U.S. Supreme Court was a much more partisan and political institution than we remember. The justices who sat on its bench were once and future elected officials, advisers to presidents and even presidential aspirants themselves.

. . . 

From the nation’s founding through the mid-20th century, there was no expectation that justices remain aloof from partisan politics. Men (no women served on the court until Sandra Day O’Connor in 1981. . . ) moved fluidly between Congress, statehouses and the Supreme Court.

. . . 

Today, the Supreme Court is populated by career law professors and jurists. But until very recently, politicians moved fluidly between elected office and the court, and back again. Jimmy Byrnes of South Carolina served as a congressman and senator from 1911 to 1941, then as a Supreme Court justice for a year and a half, then as secretary of State and subsequently as governor of his home state.

When the Supreme Court issued its landmark decision in the case of Brown v. Board of Education, four of its nine members were politicians, several of whom had never served on the federal bench: Chief Justice Earl Warren (a former governor of California); Hugo Black (a former senator from Alabama); Harold Burton (a former senator from Ohio); and Sherman Minton (a former senator from Indiana who subsequently served as federal appellate court judge).

As late as 1970, when former Supreme Court Justice Arthur Goldberg ran for governor of New York — or 1981, when Sandra Day O’Connor, a former state senator from Arizona, took her seat on the court — it was standard for people to move fluidly between judicial service and elective office. The notion that justices should be political saints, innocent of partisanship, would have been considered odd. . . 

Then, use the Barometer teaching strategy to ask students to “take a stand” along a continuum showing how much they agree or disagree with each of the following statements:

1. Presidents should never nominate politicians to the Supreme Court.
2. The Supreme Court should be apolitical (outside of politics).
3. It is possible for Supreme Court justices to keep their personal opinions out of their decisions.

For each statement, ask a select number of students to explain their reasons for choosing their stance.

• 1“Apolitical,” Cambridge Dictionary.
• 2“Partisan,” Cambridge Dictionary.

Ask your students to read the following excerpt from the NPR article The Supreme Court will begin a new term with more contentious cases on its docket:

. . . Chief Justice John Roberts sought to defend the court's legitimacy while speaking to a conference of judges and lawyers in Colorado.

"Decisions have always been subject to intense criticism, and that is entirely appropriate," he said, "but lately, the criticism is phrased in terms of . . . the legitimacy of the court." That, he said is "a mistake."

It is the job of the court to say what the law is, he said, "and that role doesn't change simply because people disagree with this opinion or that opinion." After all, he said, "You don't want the political branches telling you what the law is, and you don't want public opinion to be the guide of what the appropriate decision is." ¹

Then, discuss the following questions as a class:

• Do you think that Supreme Court decisions should be influenced by public opinion? Why or why not?
• What do you think might happen if the majority of people in the United States strongly disagreed with a Supreme Court decision?
• When do you think people can disagree with a Supreme Court decision and still consider it legitimate?

When you have finished discussing the questions, read the next section of the NPR article as a class:

But Justice Elena Kagan pointedly disagreed with some of what Roberts said, noting in three separate appearances, that in her view a court's legitimacy has to be earned.Precedent should only be reversed in the rarest of cases, she said at Northwestern's Pritzker law school. Precedent, she said, is a "foundation stone of law," a doctrine of stability that "tells people they can rely on the law." But if, "all of a sudden everything is up for grabs, all of a sudden very fundamental principles of law are being overthrown . . . then people have a right to say, 'You know, what's going on there? That doesn't seem very law-like.'"

Or as she put it at Salve Regina University in Rhode Island: "The court shouldn't be wandering around just inserting itself into every hot-button issue in America, and it especially shouldn't be doing that in a way that reflects one set of political views over another." ²

Ask your students:

• What does Justice Kagan mean by the term “precedent”? Do you think she’s right that the Supreme Court should follow precedent except in extremely rare cases? Why or why not?
• Do you think the Supreme Court should try to stay away from “hot-button issues”? Why or why not?

Finally, ask your students to reflect on their following prompt in their journals:

Is it better to let let the Supreme Court decide issues related to rights (such as the right of same sex couple to marry or the right for people to own certain types of guns) or to let Congress decide these issues? What are the advantages or disadvantages of having unelected officials (on the Supreme Court) or elected politicians (in Congress) decide these issues?

• 1Nina Totemberg, “The Supreme Court will begin a new term with more contentious cases on its docket,” NPR’s Morning Edition, October 3, 2022.
• 2Nina Totemberg, “The Supreme Court will begin a new term with more contentious cases on its docket,” NPR’s Morning Edition, October 3, 2022.

This year, Ketanji Brown Jackson became the first Black woman in US history to serve on the Supreme Court. Her nomination brought long-standing questions about the importance of representation on the Supreme Court to the fore again.

Ask your students to read the following excerpt from Brennan Center article What Research Shows About the Importance of Supreme Court Diversity:

[A] diverse judiciary helps instill trust in the justice system among underrepresented communities. As federal district court Judge Edward Chen observed, “It is the business of the courts, after all, to dispense justice fairly and administer the laws equally. . . . How can the public have confidence and trust in such an institution if it is segregated — if the communities it is supposed to protect are excluded from its ranks?” . . . 

. . . Judge Harry T. Edwards of the DC Circuit Court of Appeals has observed that diversity on the bench “provides for constant input from judges who have seen different kinds of problems in their pre-judicial careers, and have sometimes seen the same problems from different angles.” Federal district court Judge Carlton W. Reeves has noted, “Where people come from, what they have lived through, what they do with the time they have, and who they spent that time with — it all matters.” ¹

Then, discuss the following questions:

• How might a judge’s background or life experiences influence what perspectives they bring to the cases they hear?
• What are the impacts of having judges who come from historically underrepresented communities?
• How can diversity among judges influence people’s trust in courts? 

• 1Alicia Bannon and Douglas Keith, “What Research Shows About the Importance of Supreme Court Diversity,” Brennan Center for Justice, February 1, 2022.