All posts by Charles Franklin

New national Marquette Law School Poll finds that, even amid partisan differences on judicial philosophy, most voters say U.S. Supreme Court decisions are based on law and not politics

Editor’s Note: This is the third of three releases to announce findings in this poll, with previous releases distributed on Sept. 23 and Sept. 24

Please note: Complete Poll results and methodology information can be found online at law.marquette.edu/poll

MILWAUKEE — A Marquette Law School Poll of adults nationwide, completed shortly before the death of Justice Ruth Bader Ginsburg, finds that 62 percent of respondents say Supreme Court justices’ decisions are motivated mainly by the law, while 37 percent say they are motivated mainly by politics.

While views of the Court often correspond to political identifications, the view of judicial motivations is quite uniform across partisanship and ideology. Table 1 shows perceived motivation of decisions, by party identification. The range is narrow: Across the parties, between 35 and 39 percent say politics is a primary motivation and 60 to 65 percent say the law is mainly the motivation.

Table 1: Perceived basis of decisions, by party identification

Party IDMainly politicsMainly the law
Republican3960
Independent3565
Democrat3961

Table 2 shows the perceived motivation, by political ideology, and again all groups share very similar views, with 35-40 percent of each group pointing to politics, while 60-65 percent say the law is the main motivation for decisions.

Table 2: Perceived basis of decisions, by self-described ideology

IdeologyMainly politicsMainly the law
Very conservative4060
Conservative3565
Moderate3961
Liberal3565
Very liberal4060

Those who disapprove of the job the Court is doing are much more likely to say decisions are politically motivated, with 56 percent saying decisions are primarily political and 44 percent saying they are primarily based in the law. By contrast, among those who approve of the way the Court is handling its job, 28 percent say decisions are primarily political and 72 percent say they are motivated by the law.

Similarly, 79 percent of those with a great deal or quite a lot of confidence in the Court cite the law as the motivation for decisions, while 21 percent say decisions are mostly political. For those who say they have “some” confidence in the Court, 55 percent cite the law and 44 percent point to politics as the motivation for decisions. And among those with very little or no confidence in the Court, 40 percent cite the law while 60 percent say politics is the motivation for decisions.

Asked how justices should interpret the law, 31 percent say they should read the text as written, 23 percent say they should use the commonly understood meaning at the time the law was written, and 45 percent say justices should interpret the law as it applies to current circumstances.

On this question, preferences vary by both party and ideology. Table 3 shows how views vary by partisanship. Republicans are more likely to prefer to base decisions on the text of the law, while Democrats are more likely to say the application to current circumstances should be more important. More independents prefer interpretation by application to current circumstances rather than by the text. Across all party groups, about one in five people say the original meaning of the law should be the basis of decisions.

Table 3: Preferred basis of decisions, by party identification

Party IDRead the text of the law as writtenUse the commonly understood meaning at the time the law was writtenInterpret the law as it applies to current circumstances
Republican462331
Independent292347
Democrat212156

Conservatives give greater weight to the text than to current circumstances, while liberals prefer decisions based on current applications of the law, as shown in Table 4.

Table 4: Preferred basis of decisions, by ideology

IdeologyRead the text of the law as writtenUse the commonly understood meaning at the time the law was writtenInterpret the law as it applies to current circumstances
Very conservative562419
Conservative432433
Moderate282447
Liberal191863
Very liberal131670

Debates among those involved in the law and politics over constitutional interpretation based on “original intent” versus “evolving meaning” have also aligned with party and ideology in the public at large. When asked how the justices should decide constitutional questions, two-thirds of Republicans say they should follow the original meaning of the Constitution, while two-thirds of Democrats say the Constitution should be read as a document whose meaning may have evolved over time. Table 5 shows responses by partisanship.

Table 5: Constitutional interpretation, by party identification

Party IDWhat the U.S. Constitution was understood to mean when it was originally writtenThe Constitution as a document whose meaning may have evolved over time
Republican6931
Independent4058
Democrat3167

As with party identification, there is a strong alignment of constitutional interpretation preference with ideology, as shown in Table 6.

Table 6: Constitutional interpretation, by ideology

IdeologyWhat the U.S. Constitution was understood to mean when it was originally writtenThe Constitution as a document whose meaning may have evolved over time
Very conservative8416
Conservative6436
Moderate4059
Liberal2375
Very liberal1682

It is striking that respondents tend to agree across party and ideological lines on how justices make decisions—that the justices do so mainly on the basis of the law rather than politics—but differ sharply on what judicial philosophy justices should use to decide.

Recent decisions

Agreement with recent Court decisions varies across subject matter, with some cases less visible to the public than others. In the survey instrument, cases were not referred to by name. See the survey instrument for the question wording, which focuses on an important element of each case but does not attempt to convey the full complexity of cases or of the issues they present.

One of the major cases of the last term, Bostock v. Clayton County, Georgia, decided that the federal law barring employment discrimination on the basis of sex also applies to discrimination based on sexual orientation and against transgender individuals. Sixty-two percent favor this decision, while 26 percent oppose it and 11 percent say they don’t have an opinion.

The Court held in Espinoza v. Montana Department of Revenue that a state program financially supporting students who attend private schools may include religious schools without violating the federal Constitution. This decision is favored by 51 percent and opposed by 32 percent of respondents, while 15 percent do not have an opinion.

The Court rejected the attempt of President Donald Trump’s administration to end the Deferred Action for Childhood Arrivals (DACA) program, in Department of Homeland Security v. Regents of the University of California. Fifty percent favor this ruling, 35 percent oppose it and 14 percent say they don’t know.

In Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania, the Court approved the Trump administration’s plan to permit private employers with religious or moral objections to choose not to provide contraceptive coverage as part of their employee health insurance plans. For this decision, 34 percent favor it, 51 percent oppose it and 13 percent have no opinion.

In the term’s major case concerning abortion regulation, June Medical Services LLC v. Russo, the Court struck down a particular Louisiana law regulating abortion providers in the state. Forty-five percent favor this decision, with 35 percent opposing it and 18 percent not expressing an opinion.

In McGirt v Oklahoma, the Court ruled that land granted in the 1830s to the Creek Indian Nation retains that status, with the result that the state of Oklahoma could not itself prosecute tribal members for major crimes in the eastern portion of the state, including places such as Tulsa, because Congress has not acted to change those treaties. Fully 27 percent say they don’t have an opinion about this decision, while 46 percent favor the ruling and 25 percent oppose it.

While the Court did not rule on an affirmative action case during the 2019 term, we asked whether the respondent favors or opposes past decisions that permit the use of race as one factor in making college admissions decisions. Seventeen percent favor these decisions, while 73 percent oppose them and 10 percent say they don’t know.

Possible future decisions

Drawing on a range of cases or controversies that either are already accepted for the coming Court term or present issues likely to come to the Court in the future, we asked opinions about possible decisions.

Roe v. Wade has remained at the center of political debate over abortion for more than four decades. In this survey, 32 percent would favor overturning Roe, while 55 percent oppose overturning it and 12 percent say they don’t have an opinion.

Two cases accepted for argument this fall, Texas v. California and California v. Texas, challenge the constitutionality of the Affordable Care Act (ACA). Among respondents, 36 percent favor striking down the ACA, while 52 percent oppose striking down the law and 11 percent say they don’t know.

Cases currently in the lower courts, but not yet before the Supreme Court, concern whether limits on the sale of high-capacity gun magazines violate the Second Amendment. Thirty-seven percent would favor a ruling striking down such restrictions, while 50 percent would favor allowing legislative limits on such gun magazines to stay in effect and 11 percent say they don’t know.

Recent rulings have expanded interpretations of exemptions from employment discrimination laws for religious organizations and schools in the case of certain types of employees. Among respondents in this poll, 42 percent favor a possible ruling that, under the First Amendment, religiously affiliated schools are generally exempt from these laws with respect to employees whose jobs involve conveying religious beliefs, while 43 percent oppose this and 14 percent say that don’t know.

A case set for argument this fall, Fulton v. City of Philadelphia, Pennsylvania, poses, among other issues, a question whether a religious social service organization that refuses to certify same-sex couples as foster parents may be excluded from a public foster placement program. Forty percent would favor a ruling that such an organization may be legally excluded, 44 percent would oppose such a ruling and 15 percent do not have an opinion.

There are developing issues as to how explicit Congress must be in giving regulatory agencies authority to develop and impose regulations. Fifty-three percent would favor a ruling that federal agencies may not write regulations unless their substance is explicitly set forth in legislation, 19 percent would oppose this limitation on regulatory agencies and 27 percent don’t have an opinion.

Forty-eight percent would favor a ruling that laws making it harder, as a practical matter, for supporters of one party, but not the other, to vote are unconstitutional. Meanwhile, 29 percent would oppose such a decision and 21 percent say they don’t know.

About the Marquette Law School Poll

The survey was conducted Sept. 8-15, 2020, interviewing 1,523 adults nationwide, with a margin of error of +/-3.3 percentage points. There are 1357 likely voters, with a margin of error of +/- 3.6 percentage points. Interviews were conducted by the National Opinion Research Center (NORC) using its AmeriSpeak Panel, a national probability sample, with interviews conducted online. The detailed methodology statement, survey instrument, topline results, and crosstabs for this release are available at https://law.marquette.edu/poll/category/results-and-data/.

New Marquette Law School Poll finds two-thirds of American public approve of U.S. Supreme Court job performance

Editor’s Note: This is the second of three releases to announce findings in this poll, with a previous release distributed on Sept. 23 and a final release to follow on Sept. 25

Please note: Complete Poll results and methodology information can be found online at law.marquette.edu/poll

MILWAUKEE — A Marquette Law School poll of adults nationwide completed shortly before the death of Justice Ruth Bader Ginsburg finds 66 percent say they approve of the way the U.S. Supreme Court is handling its job, while 33 percent disapprove.

A similarly large 59 percent say they trust the Court the most among the three branches of government, with 24 percent saying they trust the presidency most and 16 percent saying they trust Congress the most.

The level of confidence in any specific branch of government is somewhat limited, with 40 percent saying they have a great deal or quite a lot of confidence in the Court and 45 percent saying they have some confidence. Sixteen percent say they have very little or no confidence in the Court. Table 1 shows the level of confidence that respondents place in each branch of the federal government and in their state supreme court (or highest court) for comparison.

Table 1: Confidence in federal branches of government and state supreme (or highest) court

InstitutionA great dealQuite a lotSomeVery littleNone at all
U.S. Supreme Court122845133
The presidency1516232025
Congress310423510
State supreme court82747144

While nominations to the Court have become highly partisan in recent years, a majority of each partisan group approves of how the Court is handling its job. Approval is highest among Republicans, with 80 percent saying they approve. Among independents, 64 percent approve, while 57 percent of Democrats approve. Those disapproving are 19 percent of Republicans, 34 percent of independents, and 43 percent of Democrats.

With the exception of those who consider themselves very liberal, a majority of each ideological category also approves of how the Court is handling its job, as shown in Table 2.

Table 2: Approval of the Court, by self-described ideology

IdeologyApproveDisapprove
Very conservative6731
Conservative7920
Moderate6335
Liberal6436
Very liberal4555

Turning to likely voters: First, as reported yesterday, 50 percent support former Vice President Joe Biden and 40 percent support President Donald Trump. Libertarian candidate Jo Jorgensen is supported by 3 percent and Green Party candidate Howie Hawkins by 2 percent.

Among likely voters who approve of the job the Court is doing, 46 percent say they will vote for former Vice President Joe Biden in the presidential election, while 46 percent will vote for President Donald Trump. Of those who disapprove of the Court’s handling of its job, 62 percent support Biden and 24 percent support Trump. Table 3 shows the vote by approval of the Court for all candidates.

Table 3: Presidential vote, by approval of the Court

Court job approvalBidenTrumpJorgensenHawkinsVote for someone elseWould not vote
Approve46462222
Disapprove62244234

Among all likely voters, 69 percent approve of the way the Court is handling its job and 30 percent disapprove.

Institutional change

While substantial percentages of the public express approval or confidence in the Supreme Court, there is also considerable support for making changes to the powers and structure of the Court, and some people lack awareness of powers of the Court. While social scientists have usually measured the “legitimacy” of the Court through confidence or approval measures, the possible changes to the institution raise some doubts as to the robustness of support for the institution as currently structured.

One of the hallmarks of the Court’s powers, established in the 1803 Supreme Court decision in Marbury v. Madison, is the power of judicial review of laws or government actions to determine, in an appropriate case, if they violate the Constitution. In the poll, 87 percent say the Court has the power to reviews laws passed by Congress, while 13 percent say the Court does not have this power.

Similarly, 82 percent think that that the president must obey rulings of the Court, but 16 percent say the president can ignore a ruling of the Court.

A substantial minority, 41 percent, favor limiting the ability of the Court to review and set aside acts of Congress as unconstitutional, while 58 percent oppose such a change to the Court’s powers.

One popular change would set a fixed term of service on the Court rather than the current lifetime appointments as indicated in the Constitution. Seventy-five percent of respondents favor a limited term, while 25 percent oppose such a change.

Expansion of the Court has become a frequent topic of debate surrounding recent confirmation battles in Congress. Forty-six percent favor increasing the number of justices on the Court, while 53 percent oppose such a structural change.

There are only modest differences between partisans in support for limiting judicial review or for limiting the terms of justices. Support for limiting judicial review is 43 percent among Republicans, 38 percent among independents, and 41 percent among Democrats.

Support for limiting the term of service for justices is higher and also similar across partisan groups. Seventy-four percent of Republicans favor limiting terms, 73 percent of independents and 77 percent of Democrats.

Only on the issue of expanding the number of justices do we see partisan differences, as shown in Table 4, with more Republicans opposed to an expansion, more Democrats in favor and independents somewhat opposed on balance.

Table 4: Support for expanding the number of justices by party identification

Party IDFavorOppose
Republican3465
Independent4158
Democrat6139

One in four respondents would also support a change to the balance of powers between Congress and the president, with 28 percent saying the president should have the power to make laws on his or her own if Congress fails to act, while 72 percent would reserve this power to the legislative branch.

On this potential change to the structure of the government, 50 percent of Republicans favor this expansion of executive authority while 50 percent oppose the change. Among Democrats, 18 percent favor giving a president this power and 82 percent are opposed. Independents are similar to Democrats on this issue, with 20 percent in favor and 80 percent opposed.

About the Marquette Law School Poll

The survey was conducted Sept. 8-15, 2020, interviewing 1,523 adults nationwide, with a margin of error of +/-3.3 percentage points. There are 1357 likely voters, with a margin of error of +/- 3.6 percentage points. Interviews were conducted by the National Opinion Research Center using its AmeriSpeak Panel, a national probability sample, with interviews conducted online. The detailed methodology statement, survey instrument, topline results, and crosstabs for this release are available at https://law.marquette.edu/poll/category/results-and-data/