1 in 3 Americans might consider abolishing or limiting Supreme Court, Annenberg survey finds
IMAGE: SURVEY SHOWING THE RESPONSE (AGREE/DISAGREE) TO THE STATEMENT: "IF THE SUPREME COURT STARTED MAKING A LOT OF RULINGS THAT MOST AMERICANS DISAGREED WITH, IT MIGHT BE BETTER TO DO AWAY WITH THE COURT ALTOGETHER." SOURCE: ANNENBERG CIVICS KNOWLEDGE SURVEY, SEPT. 7-12, 2021, AND PRIOR YEARS. view more
CREDIT: SOURCE: ANNENBERG PUBLIC POLICY CENTER
As the Supreme Court’s fall term begins, a new survey from the Annenberg Public Policy Center of the University of Pennsylvania finds that more than a third of Americans say they might be willing to abolish the Supreme Court or have Congress limit its jurisdiction if the court were to make decisions they or Congress disagreed with.
The nationally representative survey conducted in September found sharp increases in the proportion of Americans willing to consider getting rid of or reining in the nation’s highest court.
The survey found that 34% of Americans said “it might be better to do away with the court altogether” if it “started making a lot of rulings that most Americans disagreed with.” And 38% said that when Congress disagrees with the court’s decisions, “Congress should pass legislation saying the Supreme Court can no longer rule on that issue or topic.”
“Respect for judicial independence appears to be eroding,” said Kathleen Hall Jamieson, director of the Annenberg Public Policy Center (APPC). “The willingness of more than 1 in 3 Americans to entertain the idea of abolishing the court or stripping jurisdiction from it is alarming.”
The findings are consistent with trends in other recent surveys that posed related questions. Gallup reported in September that the Supreme Court’s approval rating plunged to 40%, a new low, from 49% in July. A Marquette Law School Poll in September found the court’s approval rating falling to 49% from 60% in July.
The Annenberg Civics Knowledge Survey was conducted September 7-12, 2021, among 1,008 U.S. adults. The survey was conducted for APPC by SSRS, an independent research company, and has a margin of error of ± 4.0 percentage points at the 95% confidence level.
Additional details and the questions are in the Appendix.
A turbulent year
The findings follow a contentious year with increased media coverage of the powers, functions, and prerogatives of the three branches of government. Among the past year’s events were a pandemic in which legislatures and courts grappled with health and safety restrictions; a disputed election and unsuccessful efforts to overturn the results in the courts, including the Supreme Court; and Supreme Court rulings on controversial issues, including a ruling that rejected efforts to dismantle the Affordable Care Act and the court’s refusal to review the Covid-19 vaccine mandate for students and employees at Indiana University. Just before the September survey was fielded, the Supreme Court refused, 5-4, to block a Texas law restricting abortion access.
In recent months, four justices have made public statements defending the independence of the court. One justice, Stephen Breyer, was nominated by a Democrat, President Bill Clinton, and three by Republicans: Samuel A. Alito Jr. and Clarence Thomas, who were nominated by President George H.W. Bush, and Amy Coney Barrett, nominated by President Donald Trump.
In September, following the Supreme Court’s decision on the Texas abortion law, Barrett appeared before an audience in Kentucky at the 30th anniversary of the McConnell Center at the University of Louisville. “My goal today is to convince you that this court is not comprised of a bunch of partisan hacks,” she said, according to the Louisville Courier Journal. “Judicial philosophies are not the same as political parties,” she added.
‘Do away with’ the Supreme Court
Abolish the court: One-third of respondents (34%) strongly or somewhat agreed with the statement “If the Supreme Court started making a lot of rulings that most Americans disagreed with, it might be better to do away with the Court altogether.” That is a significant increase from the last time we asked this question, in 2019, when 20% agreed. From 2005 to 2018, those who agreed ranged from 17% to 23%.
Jurisdiction stripping: 38% strongly or somewhat agreed with the statement “When Congress disagrees with the Supreme Court’s decisions, Congress should pass legislation saying the Supreme Court can no longer rule on that issue or topic.” That is significantly higher than the 28% who agreed when the question was asked in 2018. The response was 22% to 23% from 2007 to 2013.
What motivates Supreme Court justices
Personal and political views: Asked to think about individual Supreme Court justices, 59% of Americans said the justices set aside their personal and political views and make rulings based on the Constitution, the law, and the facts of the case. That is about the same as in 2020 (56%), and significantly higher than in 2019 (49%).
Party leanings: Over a third of Americans (37%) say that justices are more likely to make rulings that reflect the political leanings of the presidents who nominate them – that justices nominated by Democratic presidents are more likely to make liberal rulings and justices nominated by Republicans are more likely to make conservative rulings, regardless of the Constitution, the law, and the facts of the case. The response is about the same as in the prior two years.
Civics knowledge and the high court
The Annenberg Public Policy Center’s Constitution Day Civics Survey, part 1 of this Civics Knowledge Survey, which was conducted in August and released in advance of Constitution Day (September 17), found that a growing number of Americans correctly named the three branches of government and the freedoms protected by the First Amendment. This year, 56% of Americans named all three branches, which is a new high in the survey and significantly higher than the 51% in 2020 and 39% in 2019.
But the survey also found that a sizable number of Americans misunderstood other basic facts about government. While 61% knew that when the Supreme Court rules 5-4 in a case “the decision is the law and needs to be followed,” a third of respondents (34%) said the decision is either sent back to the federal court of appeals to be decided or to Congress for reconsideration.
An analysis of the Supreme Court survey data by Ken Winneg, Ph.D., APPC’s managing director of survey research, finds that taking a high school civics course has a significant indirect effect on protecting the Supreme Court. Using path modeling, we found that people who said they took a high school civics course are more likely to have higher levels of civics knowledge. Those who have higher levels of civics knowledge are more likely to disagree with statements calling for abolishing the court or having Congress strip the court of some of its jurisdiction.
This analysis is compatible with findings reported in a 2008 article by Jamieson and Bruce Hardy in the journal Daedalus, which found that high school civics predicts increased knowledge; increased knowledge predicts increased trust in the judiciary; and with increased trust comes “a heightened disposition to protect judges from impeachment for popular rulings and the judiciary from stripped jurisdiction. Trust also increased the belief that the Supreme Court should be retained in the face of unpopular rulings.”
Full data for the survey is in the Appendix.
The Annenberg Public Policy Center was established in 1993 to educate the public and policy makers about communication’s role in advancing public understanding of political, science, and health issues at the local, state, and federal levels.
METHOD OF RESEARCH
Survey
Century-old racist US Supreme Court cases still rule over millions of Americans
Without equal voting rights and congressional representation, the Americans living in these territories cannot remedy their status at the ballot box.
The 4 million inhabitants of five U.S. territories—Puerto Rico, American Samoa, Northern Marianas Islands, Guam and the U.S. Virgin Islands—do not have the full protection of the Constitution, because of a series of Supreme Court cases dating back to 1901 that are based on archaic, often racist language and reasoning.
No U.S. citizen living in any of those places can vote for president. They don’t have a voting representative in Congress, either.
But this inferiority is inconsistent. Puerto Ricans are American citizens and can vote in federal elections if they reside in a U.S. state—but not if they live in Puerto Rico or one of the other territories.
However, American Samoans are not U.S. citizens, so they can’t vote for president even if they live in the 50 states. That is being challenged in federal courts.
It’s all a result of a political and legal mindset that is more than 100 years old, but is still in force.
Superiority complex
Up until the end of the 19th century, everyone assumed that all U.S. territories would, eventually, become full-fledged states, whose residents would become U.S. citizens with rights fully protected by the Constitution. The Northwest Ordinance of 1787 outlined the process: As new lands opened to Americans, Congress would initially appoint a governor and judges for the territory and establish a rule of law. When the territorial population exceeded 5,000 adult men, voters would elect a legislature and send a nonvoting delegate to Congress. When the territory reached a population of 60,000, the territory would petition for statehood and be admitted to the union.
That process assumed the territories would be in North America, and that most of the territorial population would be people of European descent. Those assumptions changed when the United States claimed Puerto Rico, the Philippines and Guam in 1898, as spoils of war at the end of the Spanish-American War. Puerto Rico and Guam are still U.S. territories.
That expansion gave Americans a clear sense of the nation’s purpose and power in the world, summarized effectively by U.S. Sen. Albert Beveridge of Indiana in a congressional speech on Jan. 9, 1900: “[God] has made us the master organizers of the world to establish system where chaos reigns. He has made us adept in government that we may administer government among the savage and servile peoples.”
A new type of territory
Starting in 1901, a set of court cases, collectively called the “Insular Cases,” created new constitutional law regarding the United States’ relation with its territories. They began when import companies challenged tariffs imposed on goods transported from the newly acquired territories into the U.S. The companies claimed there should not be tariffs, because the goods were moving from one part of the U.S. to another.
The Supreme Court ultimately ruled that the companies were correct that transport within the U.S. was not subject to tariffs, but created an exception, in which the new lands were neither foreign countries nor part of the U.S.
Those territories, the Supreme Court would rule in the first of the Insular Cases, Downes v. Bidwell in 1901, were “foreign in a domestic sense,” “inhabited by alien races,” and therefore governing them “according to Anglo-Saxon principles may for a time be impossible.”
The ruling included other prejudice-revealing statements, too, such as, “It is obvious that in the annexation of outlying and distant possessions grave questions will arise from differences of race, habits, laws, and customs of the people, and from differences of soil, climate, and production, which may require action on the part of Congress that would be quite unnecessary in the annexation of contiguous territory inhabited only by people of the same race, or by scattered bodies of native Indians.”
As a result, the court created a new distinction: “Incorporated” territories of the U.S. were expected to one day become states. “Unincorporated” territories, by contrast, were not—and, therefore, their inhabitants were, and still are, denied some of their constitutional rights.
A 2020 referendum vote in Puerto Rico favored statehood; Guam officials have called for statehood; and Stacey Plaskett, who represents the people of the U.S. Virgin Islands in Congress, says her constituents deserve the full rights of citizenship, including the right to vote.
The cases and context
Both at the time and since, the Downes decision has been described as meaning “the Constitution does not follow the flag.” The territories might be ruled by Congress, but not necessarily by the Constitution.
What that meant for the people of those territories was unclear. And despite five other cases in 1901, and others in the subsequent 20 years, the Supreme Court has never truly clarified which constitutional protections were available to whom and which weren’t. It left open questions about whether key elements of the Constitution, like trial by jury, or even the Bill of Rights, were available in the unincorporated territories.
Hawaii was also acquired in 1898, but was treated differently and ultimately became a state. The differences were probably for reasons to do with partisan politics and a Republican-Democratic balance in Congress.
Supreme Court interpretation over the years
Since the mid-20th century, the court has made small incremental changes to the Insular Cases’ effects, tweaking technical definitions concerning taxes, trade and governmental benefits such as Social Security, Medicaid and the Supplemental Nutrition Assistance Program. But the court has not addressed the overall inferior constitutional status of the territories and the people who live there.
It wasn’t until 1957, for instance, in Reid v. Covert, that the Supreme Court ruled that defendants in the territories had a right to trial by jury—a right citizens have because of Article III of the Constitution. Several justices made clear that “neither the cases nor their reasoning should be given any further expansion.” That statement was widely viewed as a signal that the influence of the Insular Cases was declining.
In Torres v. Puerto Rico (1979), the court further weakened the Insular Cases. Although narrowly applied to the territory at hand, the Supreme Court made clear that the Bill of Rights actually did apply in a U.S. territory.
In its 2008 ruling in Boumediene v. Bush, the court held that detainees at the U.S. naval base in Guantánamo Bay, Cuba, had the constitutional right of habeas corpus to challenge the validity of their detention. Justice Anthony Kennedy’s opinion said, “It may well be that over time the ties between the United States and any of its territories strengthen in ways that are of constitutional significance,” and said the federal government did not “have the power to switch the Constitution on or off at will.”
But in its 2020 ruling in Financial Oversight and Management Board for Puerto Rico v. Aurelius Investment, the court pulled back from its trend of extending constitutional protections to the unincorporated territories. It ruled that President Barack Obama’s appointments to the board, a government body focused on helping Puerto Rico return to financial stability, were local officials, not “officers of the United States,” and therefore did not require Senate confirmation.
Into the future
Many legal scholars view the court’s mention of U.S. territorial connections strengthening “over time” as a possible key to overturning the Insular Cases. The original distinctions assumed that the U.S. would “govern temporarily territories with wholly dissimilar traditions and institutions.” Most acknowledge those perceived distinctions clearly no longer exist.
These territories have established institutions and principles grounded in American traditions. The internal governments of these territories have established laws, governmental institutions and legal traditions that are indistinguishable from any state in the union. They hold elections, have residents serving in the U.S. military, and play a role in building the nation.
But without equal voting rights and congressional representation, the Americans living in these territories cannot remedy their status at the ballot box.
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This article is republished from The Conversation under a Creative Commons license. Read the original article.
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