The Court of Public Opinion

By Karlyn Bowman

Years before George W. Bush nominated John Roberts Jr. for the job, pollsters began asking questions about a prospective nominee to the Supreme Court. In the 2000 campaign, several pollsters explored views about Bush's (and Gore's) possible choices should a vacancy occur. In an open-ended question, Harris found that 1 percent named the Supreme Court as one of the two most important issues to them in the campaign. Barely a month into Bush's first term, one pollster asked a series of question about the likely ideological leanings of a Bush nominee, and whether or not the president would use abortion as a litmus test for the selection.

This level of activity represents a significant change from polling's past, one that is hardly surprising. There are more pollsters in the field than there were a few decades ago, and there is more competition. The makeup of the Court is consequential, and it is natural for pollsters to probe people's opinions about it. But many of the kinds of questions being asked also represent a change from the past, one that is more consequential and more troubling.

Polls about the Supreme Court are almost as old as the survey business itself. In June 1937, Fortune magazine reported that

During the end of May [1937] the U.S. daily press devoted a good deal of space to an interesting and significant discovery. The discovery was made by Fortune's editors from survey returns which had just come in as the June issue was about to go into the mails. It was of such importance that they published a preview of it in a supplement of that issue.

What had the surveys revealed?

The discovery was that the controversy aroused by the President's proposal to enlarge and rejuvenate the Supreme Court was a popular issue on which the majority of the nation lined up against the president. It was interesting because here was the first time since Mr. Roosevelt took office that an issue had proved to weigh more in the public mind that the President's personal popularity. On this one fact, Roosevelt had lost the support of a hitherto faithful majority.

In Gallup's May 1937 poll, opinion was also against the president. Forty-three percent said Congress should pass Roosevelt's Supreme Court plan, but 53 percent were opposed.

For the next thirty years, scattered questions appeared in the polls about Court decisions or nominations. Among them was Gallup's polling on the 1954 decision, Brown v. Board of Education, which showed deep divisions between the South and the rest of the nation. A search of the Roper Center 's archive produces only a dozen questions about the elevation of Abe Fortas to the position of Chief Justice in 1968 and the unsuccessful nominations of Haynsworth and Carswell in 1971.

In 1966, Harris began asking questions about the public's confidence in the people running various institutions, and the National Opinion Research Center and Gallup followed suit a few years later. Those data series, and one begun on the Court's favorability by the Pew Research Center in 1987, are an invaluable resource for scholars and others who are interested in changing opinions of the Court and in how it compares to other key institutions in society.