A CBS/New York Times poll on issues related to the Supreme Court dropped today. Among other results, the poll finds that 76 percent of Americans think that the justices’ decisions are sometimes influenced by their personal or political views. The Times story on the poll presents this number as a symptom of Americans’ distrust in government and other formal institutions. I think it’s something else: evidence that Americans respond sensibly to stupid questions.
Consider the wording of the question:
In general, do you think the current U.S. Supreme Court Justices decide their cases based on legal analysis without regard to their own personal or political views, or do
you think they sometimes let their own personal or political views influence their decisions?
As written, it presents respondents with a choice between a an implausible claim and an extremely reasonable one. You’d need a remarkably elevated opinion of the justices capacity for self-effacement to think that their decisions are never influenced by their own views. So it’s no shock that a majority rejected this alternative. Really, the only surprise is that the majority wasn’t even larger.
More seriously, the question poses a false antithesis between legal analysis and politics. Some of the matters that the Supreme Court faces aren’t directly political — for example, patent cases or some questions of administrative law. But the most important issues can’t be resolved without reference to one’s beliefs about the purposes of government, the extent of its legitimate powers, and so on. When it comes to the questions that ordinary citizens care about, the articulation and application of these beliefs isn’t a separate activity to legal analysis.
But the fact that judgement is political doesn’t mean that the members of the Supreme Court are simply politicians. There’s an important distinction between what the University of Texas law professor Sanford Levinson calls high and low politics. High politics refers to the kind of overarching principles that we usually have in mind when we describe a judge as a conservative or a liberal. Low politics refers to partisan or specific policy interests. By this standard, there’s nothing wrong with justices voting against Obamacare because they think that Congress simply lacks the authority to impose an individual mandate to buy health insurance. But it would be inappropriate to do so because they think striking down the law will help (or hurt) the president’s chances for reelection.
The poll offers no way to distinguish between these forms of politics. As such, it doesn’t tell us much of interest about what Americans think is going at the Supreme Court.