by Ken MacVey
The Supreme Court’s power does not rest on brute force but on the power of authority. This power of authority heavily rests upon public perception of the Supreme Court’s legitimacy as a fair and impartial arbiter of the law. That perception has seriously eroded. With its current case docket that will address the breadth and limits of presidential power, the Supreme Court is at a crossroads on how it will be perceived by the American people. The country in turn is at a crossroads as a constitutional republic and democracy depending on how the Supreme Court rules and is perceived.
The Supreme Court’s Public Approval Rating is at a Historic Low
Polling by a variety of pollsters shows approval of the Supreme Court is at an all-time low. For example, the court’s Gallup poll approval rating was 39% in 2025–the lowest in Gallup’s years of polling on the question. The Economist in 2025 had the court’s approval rating even lower at 35%.
This cannot be attributed simply to political party divisions. The Supreme Court has for decades been dominated by justices appointed by Republican presidents. Since 1910 there have been 11 chief justices. Nine of those were appointed by Republican presidents. Appointed for life, Republican appointed chief justices since 1910 have served for a total of a little over 100 years—Democratic appointed chief justices in turn have served for about 12. Since 1970, that is for more than half a century, the Supreme Court has continuously consisted of a majority of Republican appointed justices. Yet, despite this one-sided dominance, the Supreme Court received for several years favorable poll ratings and was afforded respect, sometimes even reverence, by the public. This has drastically changed.
The Supreme Court’s Declining Public Image is Due to Itself but also to Political Changes in the Supreme Court Justice Nomination Process
This erosion of public confidence in the Supreme Court was a long time in coming. A starting point is the Supreme Court’s 5 to 4 decision in Bush v. Gore –with the majority consisting solely of Republican appointed justices—that guaranteed Republican candidate Bush would become president. Republican appointed Justice Stevens in his dissent said the decision “can only lend credence to the most cynical appraisal of judges throughout the land.” Justice Sandra Day O’Connor, who was in the majority, years later publicly declared the court’s decision was in retrospect probably a regrettable mistake that “stirred up the public” and “gave the court less than a perfect reputation.”
Installed as president, George W. Bush appointed Chief Justice Roberts and Justice Alioto to the Supreme Court. Instrumental in their selection as nominees and in steering their nominations and confirmations was Leonard Leo, a leader in the conservative Federalist Society. Leo became the behind-the-scenes strategist to shepherd the Supreme Court justice nomination process under Republican administrations. Leo, who had originally counseled Justice Thomas in his confirmation hearings, took on a key role in the selection, nomination, and confirmation of Chief Justice Roberts and Justices Alito, Kavanaugh, Gorsuch, and Barrett. Leo was reputed to be a zealous proponent of constitutional originalism and overturning the Roe v. Wade abortion decision.
Leo also played a role in blocking Supreme Court justice nominees. Upon Justice Scalia’s death, President Obama nominated District of Columbia Court of Appeals Chief Judge Merrick Garland in March 2016. Leo worked with Senate Majority Leader Mitch McConnell to block this nomination. One of Leo’s organizations reportedly spent $7 million in a campaign to block the nomination. McConnell announced that the nomination was too close in time to the upcoming presidential election in November, which was eight months away. Garland’s nomination never had a hearing or a vote in the Senate as a result. Leo subsequently promoted Gorsuch as a successor to Scalia. After winning the 2016 presidential election, Trump in early 2017 nominated Gorsuch, who was confirmed in April 2017.
Leo also promoted DC Circuit Judge Brett Kavanaugh for nomination and confirmation when Justice Kennedy announced his retirement from the Supreme Court in 2018. Trump ‘s nomination of Kavanaugh was controversial because of allegations of inappropriate personal behavior but Kavanaugh was confirmed by a Republican controlled Senate led by Senator McConnell.
In September 2020 Justice Ginsburg died. The Wall Street Journal reported that Leo was heavily involved in the selection of Amy Coney Barrett to fill the vacancy. Senate Majority Leader McConnell led the way for her confirmation. In September Trump nominated Barrett. She was confirmed in 30 days, just eight days before the presidential election. McConnell and Senate Republicans were widely criticized for cynically securing her confirmation immediately before the November presidential election when previously they blocked Garland’s nomination because the presidential election was “only” eight months off.
In their confirmation hearings, nominees Gorsuch, Kavanaugh, and Barrett, all prepped by Leo, were asked about their stance on Roe v. Wade. Gorsuch testified under oath that it was precedent that had been affirmed “many” times and that “a good judge will consider it as precedent of the U.S. Supreme Court as worthy of treatment as precedent as any other.” Kavanaugh in confirmation hearings also testified that Roe was “settled as precedent,” an “important precedent that had been re-affirmed multiple times” and that it was supported by “precedent upon precedent.” Barrett also testified in her confirmation hearing that she was committed to the doctrine of “stare decisis” and its commitment to follow precedent. When the Supreme Court overturned Roe v. Wade in the 2022 Dobbs v. Jackson Women’s Health Organization decision with Justices Gorsuch, Kavanaugh and Barrett joining the majority opinion, Republican Senator Collins and Democratic Senator Manchin publicly stated that they had been misled by Gorsuch and Kavanaugh in recruiting their pivotal votes for their confirmation.
Leo and McConnell were strategically successful in securing a staunchly conservative Republican appointed supra-majority of six justices and confining the Democratic appointed minority to three justices. But their success was at the expense of public perception of the Supreme Court as an institution above politics and rigid ideology.
How the Supreme Court’s Dobbs Decision Overturning Roe v. Wade Harmed the Court’s Credibility
The Supreme Court’s in-house handling of the Dobbs decision that ultimately overturned the 1973 Roe v. Wade decision did nothing to enhance public perception of the court either. Justice Alito’s draft of the decision was surreptitiously leaked and circulated in the media in 2022. This triggered a cycle of public speculation and recrimination by members of the public, and even by Justice Alito, where some said the leak was motivated to derail the overturning of Roe while others said it was motivated to make sure the draft opinion was not set aside by an alternative compromise opinion. Chief Justice Roberts launched an internal investigation that came up empty as to the who and why of the leak.
The Dobbs decision proved to be unpopular. Polling showed over 60% of the public disapproved of the decision. The Supreme Court’s sweeping retraction of a constitutional right that had been woven into the legal and cultural fabric of the nation for nearly half a century did not play well.
At the same time, the Dobbs’ decision inadvertently undercut the Supreme Court’s appearance of being an impartial and neutral arbiter of the law. Justice Alito’s majority opinion acknowledged Roe v. Wade was a precedent but nonetheless said it should be overturned as “egregiously wrong.”
Many found this hard to swallow. Roe was a 7 to 2 decision written by Justice Blackmun, who was appointed by President Nixon and a member of the conservative wing of the court. Five of the seven justices joining the majority opinion in Roe were appointed by Republican presidents. Dissenting were Justice Rehnquist (later to become chief Justice) appointed by a Republican president, and Justice White, appointed by a Democratic one. Interestingly, Justice Rehnquist began his dissent by complementing the majority opinion for being based on “extensive historical fact and a wealth of legal scholarship” that commanded his respect. Justice Rehnquist went on to explain his dissenting position but in doing so stated he had “little doubt” that a ban on abortion could not be constitutionally sustained when “the mother’s life is in jeopardy.” In other words, eight of the nine justices, including a dissenting justice, recognized some version of a woman’s constitutional right to abortion.
The Dobbs decision presented the curious question how the conservative and Republican appointed majority of the Roe court could be so out of touch as to render an “egregiously wrong” decision and how the contemporary conservative and Republican appointed majority of the Dobbs court instead could be so much wiser and circumspect in overturning it. Not lost on some, the simple answer might be Roe was overturned because several justices were handpicked to overturn it.
Justices Thomas and Alito Face Public Scrutiny for Alleged Conflicts of Interest and Disclosure Issues
Also not helpful to the Supreme Court’s image were conflict of interest and financial disclosure issues concerning Justices Thomas and Alito. One watchdog, Fix the Court, in 2023 estimated that Justice Thomas in his tenure received gifts, including gifts from a billionaire GOP donor, with a total value of over $4,000,000. Justice Thomas’ lawyer wife, Ginni Thomas, received hundreds of thousands of dollars in income that Justice Thomas had not originally reported in federal disclosures reports required by statute. This included an $80,000 payment from a Leonard Leo organization in which it was reported Leo had instructed the organization not to disclose it was being paid to Ms. Thomas. This organization was reported to have subsequently participated in briefing in a case before the Supreme Court. Nearly $700,000 in income Ms. Thomas received from the Heritage Foundation (which later would issue the Project 2025 report) had not been disclosed either until Justice Thomas amended his disclosure statements years later.
Ms. Thomas also sent texts after the November 2020 election to the Trump White House chief of staff urging the administration to stop what she called the “heist” of the election from President Trump. Despite calls that Justice Thomas should recuse himself from two cases before the Supreme Court regarding Trump’s role in the January 6 uprising, Justice Thomas did not do so. Justice Alito was also the subject of adverse publicity about failing to disclose an expensive trip funded by a wealthy GOP mega donor and also about reports of a flag being displayed upside down at his house apparently in protest of Biden’s election as president being certified by Congress. Justice Alito attributed the flag incident to his wife.
Federal judges are bound by formal judicial canons of ethics, which are administered by the chief judges and established judicial councils for the various federal judicial circuits. These canons do not apply to Supreme Court justices. In 2023 the Supreme Court for the first time adopted a code of ethics that was signed by each of the justices. However, the code has no enforcement mechanism. Historically, it has always been up to the discretion of individual Supreme Court justices to recuse themselves from a case based on ethics or conflict of interest concerns. This remains true today. Justice Alito has publicly expressed his view that the imposition of enforceable ethics rules on Supreme Court justices would be unconstitutional.
Polling shows two thirds of Americans support binding codes of ethics and term limits for Supreme Court justices. University of Massachusetts Amherst pollster Jesse Rhodes further observed in 2023: “Americans are angry with a Supreme Court that seems out of touch and ideologically extreme.” An Associated Press poll in 2024 showed 70% of US adults thought that Supreme Court justices were more likely to shape the law to fit their own ideologies than to be a fair, impartial and independent check on other branches of government. This poll was taken before two Supreme Court rulings on Trump.
Supreme Court Decisions in Favor of Trump as Ex-President
In 2024 the Supreme Court ruled in two cases on Trump in his capacity as a former president.
In one case the Supreme Court addressed the clause in the 14th Amendment that bars from federal office those who had engaged in an insurrection against the Constitution when they had previously sworn to uphold it. The Supreme Court ruled that Trump’s role on January 6 in the attack on the nation’s capitol and in trying to overturn the presidential election did not trigger the insurrection clause. Preeminent constitutional law scholar Laurence Tribe and highly regarded conservative Judge Luttig jointly denounced the decision as “a stunning disfigurement” of the 14th Amendment.
Later in 2024 in Trump v. United States the Supreme Court in the second case issued a sweeping immunity decision regarding Trump’s criminal prosecution for his role in attempting to overthrow the 2020 election. The immunity decision was the subject of a blistering dissent. Commentators criticized the decision for allegedly elevating Trump and future presidents above the law.
Again, not necessarily a good look for the Supreme Court.
Shadow Docket and Other Supreme Court Decisions Favoring Trump Have Also Damaged the Court’s Image
In the last three years the Supreme Court has relied on the emergency docket, sometimes called the shadow docket, to make substantive rulings that Justices Gorsuch and Kavanaugh have emphasized must be taken as precedent. The problem is that these docket cases are not subject to full briefing or oral argument. The decisions are truncated, sometimes containing no reasoning at all. During the second Trump administration there have been literally hundreds of lawsuits challenging the administration for its actions regarding everything from dismantling statutorily established federal agencies such as US AID to firing Congressionally approved commissioners appointed to independent federal agencies. In multiple instances the lower federal courts ruled against the Trump administration. But the Supreme Court overturned or stayed a number of these decisions. The New York Times last fall found that the Supreme Court ruled 84% of the time in favor of the second Trump administration in its shadow docket rulings compared to 53% of the time for the Biden administration. This too does not enhance the Supreme Court’s image as a fair and impartial arbiter of the law.
The Cumulative Impact of Negative Events
Of course, the public has not kept track of the history recited above. Most people, for example, probably do not remember much about Bush v. Gore or may not remember McConnell’s cynical ploys or the details of Supreme Court justice nomination controversies. But over time impressions accumulate and hang on even if the specifics fade from memory. And in any event most certainly the overturning of Roe v. Wade has not faded from American memory, which may be the only Supreme Court decision most Americans can recite by name.
It is true that opinion poll disapproval ratings of Congress and presidents during the last decade have been just as bad or worse than Supreme Court ratings. But Congress and presidents have powers that don’t rest on public perception. No matter what the public perception is, Congress can pass laws and budgets, raise or reduce taxes, and appropriate funds for government to function. Presidents can veto bills, issue executive orders, and act as commander in chief of the military and command a vast government apparatus. On the other hand, the Supreme Court’s power critically rests on public respect for the court acting as the last and final arbiter of what federal law and the Constitution mean and stand for.
The Supreme Court and the Country are at a Crossroads
The Supreme Court is at a crossroads in how it will be respected. Will it stand up for the rule of law or will it bend to the will of a president who expresses disdain for anything and anyone that gets in his way, including the law and judges?
Retired federal Judge Luttig, who himself was under consideration for the Supreme Court, who has been a friend of Chief Justice Roberts for decades, and who has been revered as a guiding light in conservative judicial and legal circles, has been one of the most eloquent and vocal voices in condemning President Trump for aspiring to be an above-the-law king-like ruler. He has also been blunt in criticizing the Supreme Court for being what he calls Trump “enthralled.”
Each day Trump’s words and actions reinforce how justified Judge Luttig and others are in their fears about Trump’s obsessive and unhinged pursuit of attention, power and unquestioned obedience. Trump might publicly demand and get criminal indictments of perceived political enemies. He might threaten to shut down television networks for hosting comedians who make fun of him. He might shake down disfavored law firms and universities. He might unilaterally dismantle federal agencies established by Congress. He might suggest former presidents should be arrested. He might invade nations and engage in warfare without Congressional authorization. He might cut off federal funds to states whose leaders do not bend a knee. He might “joke” about cancelling elections.
All this and more in just one year of the second Trump administration.
The Supreme Court has pending on its docket cases about Trump’s power to unilaterally impose massive tariffs on nations around the world, to fire appointed commissioners of independent federal agencies contrary to statute, to arbitrarily use military forces to police cities, and to declare based on their heritage certain people born in the United States not to be US citizens. The Supreme Court has the power to say no to any and all of these efforts. Trump’s power comes only from law and only the Supreme Court, not Trump, has the authority to declare what the law is. By taking firm stands and drawing clear lines against arbitrary presidential power, the Supreme Court may be able to redeem its image as a fair and impartial arbiter of the law. It will then stand true to its title as “supreme,” and maybe in the process help save our democracy and republic.
We await to see which road it decides to take.