Congratulations to the following 2025 Jenkins Honors Moot Court Competition participants:
Isabella Barnard George Certalic Mikayla Collins Ananda Deacon Suzanne DeGuire Mallory Gault Reese Gee Isabella Gonzalez Elizabeth Hansen Mario Hernandez Dylan Hunn Michael Klein Sydney Kojis Jacob Leonard Ava Mares Hunter Phillips Andrew Pietroske Anna Pyle Connor Reed Anthony Sikorski Aaron Steines Rachel Sweet Peter Tabili William Welder
The stability of Donald Trump’s approval rating was practically a meme during his first administration. No matter the headlines, scarcely any voters appeared to change their minds about the president, at least not when asked the simple question, Do you approve or disapprove of how Donald Trump is handling his job as president?
It remains to be seen whether Trump in his second term will enjoy (or suffer) from the same apparently locked-in public attitudes. But to shed more light into what Americans really think about him, the Marquette Law School Poll has begun asking two open-ended questions. What do you [like/dislike] about Donald Trump? We randomize the order of the two questions, and respondents can write whatever they want.
Each survey, we ask about 1,000 adults these questions. All but two or three percent share a response.
In December, 35% expressed entirely negative views of Trump, 12% were entirely positive, and 51% were mixed, sharing both likes and dislikes (the remaining 2% refused to answer). This changed only slightly in early 2025. The group with mixed opinions shrank by 4 percentage points, and the other categories grew by 1 or 2 points each.
Summary of open-ended survey responses
in the Marquette Law School Poll, national adult sample
Attitude toward Donald Trump
survey dates
12/2-11/24
1/27-2/6/25
Can name likes and dislikes
51%
47%
Doesn’t dislike anything
12%
14%
Doesn’t like anything
35%
36%
no answer
2%
3%
Donald Trump won in 2024 because he beat Harris by about 38 points among voters holding mixed views of him. He enjoyed especially high support among those who hadn’t voted at all in 2020.
Most of these people still approve of how Trump has begun his second term. However, Trump’s approval rating has slipped with this group, relative to December 2024.
In December 2024, 53% of adults approved (and 47% disapproved) of how Trump had handled his job during his first term. About a month into Trump’s second term, 48% approve and 52% disapprove of how Trump is currently handling his job.
The drop in approval is entirely due to lower views of Trump’s current job performance among those with more ambivalent views of him.
Among those who only listed things they like about Trump, 96% approved of his past job performance in the December poll and 96% likewise approve of his current job performance in the February poll.
Conversely, 97% of those with only negative things to say about Trump disapproved of his past job performance in December and disapprove of his current job performance in February.
But among those with mixed views of Trump, 77% gave him retrospective approval in December, falling to 67% approval in February.
Themes in the open-ended responses
Some voters express idiosyncratic combinations of views when given the opportunity. You’ll find the occasional conservative whose only complaint about Trump is his support for Israel or the odd Harris voter who dislikes Trump’s “racist attitude” but appreciates that he “doesn’t drink or smoke dope.”
But most responses fall into familiar categories. Here are a few themes that stood out to me.
Outside of the 36% of adults who despise Trump, Trump’s hyper-aggressive first month in office is usually perceived favorably. Many people said things like, “he’s fulfilling campaign promises,” or “He has already done more in a few days than Biden did.”
A common complaint among those who generally like Trump is his communication style. Some representative comments: “he talks too much”; “the way he talks, very crude”; and “mean tweets, rehearsing [sic] his wins in election too often.”
On the other hand, even some people who disapprove of him like aspects of his communication. “Confidence, has charisma, is funny on occasion”; “He’s funny. He says what he thinks.”
Quite a few people complained about Trump’s pardoning of the January 6th rioters, and few or none mentioned it favorably.
Finally, these data also undermine a point I have occasionally heard from conservative commentators. Referencing the more “muted” response to Trump’s second term from Democratic politicians and left-leaning organizations, some have argued that opposition toward Trump’s first term was largely an elite, media creation.
On the contrary, in reading these open-ended responses I see no diminution of opposition to Trump. If anything, the vitriolic tone may have intensified among those who like nothing about him. This group is not a majority of the country. It includes under 40% of adults in our sample, but is is more than twice as large as the group of people with only positive things to say about Trump.
During Trump’s first term, his opponents turned out at unusually high levels–flipping seats during special elections and midterms at a startling clip. Democrats will look to repeat that playbook in 2025 and 2026. The surprise victory of a Democratic candidate in a Trump +21 Iowa state senate district is a small, early indication that this strategy may work.
Explore the data
The above is just my interpretation of these responses. I strongly encouraged you to read them for yourself. Click here to access our web app for viewing responses. The tool allows you to see 5 randomly* selected responses with each click of the button. Some of these responses contain profane language and many contain typos. We present them in unedited form.
By the mid-1970s judges in both the Second and Ninth Circuits realized that the “recognizability” standard for copyright infringement determinations was unworkable. As Roth Greeting Cards and International Luggage Registry had demonstrated, mere recognizability swept uncopyrightable as well as copyrightable material into the comparison, and hinged the infringement determination on the faintest suggestion of either. Some test was needed that would allow courts to do all three parts of the difficult balancing act described in Part I-A, in particular the assessment of how much protectable material was taken and whether that amount surpassed some threshold that made it unreasonable. Pre-Legal-Process courts had tackled these questions, but without saying much more than that the defendant had “wrongfully appropriated” the plaintiff’s protected expression, or taken its “aesthetic appeal,” or “justified” an infringement claim. Such openly normative assessments, relying on the judge’s subjective evaluation of the material taken, plainly would not do in a more formalist age. An alternative framework was needed.
Two decisions in rapid succession, one from the Second Circuit and one from the Ninth, latched onto the “total concept and feel” phrase as a way to express an overall level of similarity or dissimilarity in protected expression without openly making a normative or aesthetic judgement. In Reyher v. Children’s Television Workshop (2d Cir. 1976), the Second Circuit considered a claim by the authors of a children’s book based on a simple story: a lost child describes her mother only as “the most beautiful woman in the world,” which delays finding her because the mother does not meet conventional expectations of beauty. Sesame Street Magazine published a 2-page story that followed the same basic plot, but had different dialog, different illustrations, and was set in a different location. Was it infringing? Certainly the story was recognizable, but in almost every other detail the works were completely different. Reaching for a way to assess the protected expression in the stories holistically, the panel fell upon the empty verbiage from Roth: Given the simplicity of the stories, the court suggested, “we might [also] properly consider the ‘total concept and feel’ of the works in question.” Aside from a similar sequence of events, which the court found to be unprotectable scènes à faire, the remainder of the stories had an entirely different “total feel,” and thus there was no infringement.
The following year, the Ninth Circuit found its way back to the Roth formulation as well. In Sid & Marty Krofft Television Productions, Inc. v. McDonald’s Corp., the plaintiffs claimed that their children’s television show, “H.R. Pufnstuff,” had been ripped off to make the McDonaldland characters — Grimace, the Hamburgler, Mayor McCheese, etc. The issues were whether the jury verdict of infringement was correct and whether damages had been properly determined. But the opinion started with a long discussion of the proper test for infringement, casting shade — without mentioning any names — on how it had been done up to that point. Merely asking about the similarity between two works — in other words, whether anything from the plaintiff’s work is recognizable in the defendant’s — produces “some untenable results,” the court noted. “Clearly the scope of copyright protection does not go this far. A limiting principle is needed,” namely one that separates out idea from expression and determines only the extent to which there has been copying of the latter.
The court then grandiosely declared, “The test for infringement therefore has been given a new dimension.” Unfortunately, as is well known, that new dimension was a thorough garbling of the Arnstein v. Porter decision from the Second Circuit, a misstep that has thrown Ninth Circuit caselaw for a loop it is still trying to recover from. But after mangling the concept of substantial similarity, the Ninth Circuit had to apply its new framework to the jury verdict below, which had held the McDonald’s characters to infringe the somewhat similar-looking H.R. Pufnstuf characters. Were they? The Ninth Circuit panel agreed with the jury. “It is clear to us that defendants’ works are substantially similar to plaintiffs’.” Why? “They have captured the ‘total concept and feel’ of the Pufnstuf show.”
In both Reyher and Sid & Marty Krofft, the reference to “total concept and feel” allowed the court to express a conclusion as to whether the defendants had taken too much copyrightable expression without specifically identifying what in the plaintiff’s work was expression, what in the defendant’s work was similar or dissimilar, and where the threshold level of similarity lay. “Total concept and feel” was thus a way of summing up all three of the difficult judgments an infringement determination required, and it did so in a way that met modern judicial norms while avoiding the ham-handedness of “recognizability.”
