Why the Supreme Court tends to release unpopular decisions late in its term
The Supreme Court ended its term July 1, partially granting former President Donald Trump's claim to absolute presidential immunity while in office while punting specific questions related to his Jan. 6 prosecution back down to lower courts for further consideration. That decision was par for the course with the court's other rulings this term, which featured a set of high-profile and unpopular opinions that continued to push American law even further to the right.
The high court's refusal to bend to public opinion obviously hasn't done much to improve its standing among Americans: According to 538's polling average, the Supreme Court's net approval rating hit an all-time low of -22.8 percentage points at the end of May. Approval has ticked up slightly since then, but the court still has the lowest approval at the end of a term since we began tracking the question in 2021, at -17.2 points. That surpasses even the aftermath of the decision to overturn Roe v. Wade in 2022.
This dissatisfaction is reflected across other polling, too. In an AP-NORC poll from late June, only 16 percent of respondents said that they had a "great deal" of confidence in the Supreme Court, down from 28 percent in February 2020. A Marquette University Law School poll from May found a similar decline of 15 percentage points in public confidence in the court over the last four years.
And after a consistent trickle of news about the various ethics scandals and personal feuds of the justices over the last few years, the public isn't too confident in their personal neutrality either. In the AP-NORC poll, 70 percent of Americans said that they believe the justices are guided more by their own beliefs and ideologies than by being impartial when it comes to deciding cases.
Amid this environment, public opinion about the court's decisions seems especially critical. After all, we know that the justices are still concerned about attitudes toward the institution — despite their many assertions that the court is nonpolitical. And while less than half (45 percent) of the court's major cases* over the last four years were decided along purely ideological lines, those more divisive rulings have been notably less popular among the public, according to surveys conducted by SCOTUSPoll, a polling collaboration between a group of academics.
The average net support for decisions that relied entirely on a conservative majority was -4.1 points, while the average net approval of rulings that included at least one liberal justice in the majority was the reverse, +4.1 points. (SCOTUSPoll surveys are fielded before the Supreme Court releases decisions in each case, so their numbers don't capture how public opinion may have reacted to each ruling. But the data still gives us a good baseline on how the public feels about these decisions.)
As it turns out, the Supreme Court may be considering these trends in public opinion in determining when to release its decisions, putting out more popular rulings earlier — and more unpopular ones later.
Since 2021, the Supreme Court has handed down most of its unanimous (or close-to-unanimous) decisions first, in May and early-to-mid June. That could be for a few reasons — perhaps the justices want to create a narrative of a congenial and moderate court before the more contentious rulings are released. Or perhaps it's because those cases feature less disagreement among the justices and therefore require less time to prepare opinions.
Regardless of the reason, the decisions released during that period are also the most popular with the general public, with an average of about +9 net support in surveys from SCOTUSPoll:
But the data also shows that since 2021, the court has released a majority of its conservative-only decisions in the final few days of the term. Those unpopular rulings tank average public support by over 10 points.
This pattern seems in line with a strategy to minimize public backlash by having the court announce opinions after the media has already begun to settle on a narrative for the term and right before the July Fourth holiday, when the general public isn't paying as close attention. That approach may pay dividends, at least based on attitudes about potential rulings before they were made: The average net support for the court's rulings at the end of its term is -3 points. While that's not a great number, it's close to even and certainly much higher than support for some of the court's most-publicized recent rulings, like Dobbs v. Jackson Women's Health Organization and the presidential immunity case.
This is a new phenomenon, at least when compared to how the court behaved before Justice Amy Coney Barrett's appointment created a 6-3 conservative majority four years ago. In 2020, the court actually released many of its unanimous or close-to-unanimous decisions at the end of the term, and there was no discernible pattern of when the conservative-only opinions were handed down (there were only two that SCOTUSPoll asked about):
This suggests that the justices are aware of how unpopular their rulings have been in recent years and are trying different strategies to minimize backlash — except, of course, for handing down more popular decisions. As Chief Justice John Roberts said in his opinion in the Trump immunity case, "unlike the political branches and the public at large, the court cannot afford to fixate" primarily on things like public opinion or the politics of the day.
We'll have to wait a few more weeks to be certain of how the public is reacting to the court's latest rulings. But don't expect the justices to change course anytime soon.
Footnotes
*Defined as a case that was asked about in a SCOTUSPoll.
