Norm Erosion in Judicial Confirmations and Attitudes Toward the Supreme Court

• In Event: Public Opinion, Court Legitimacy, and Support for the Rule of Law

Abstract

After the death of Justice Antonin Scalia in 2016, the Republican Senate majority held his seat open for over a year, lest President Barack Obama, a Democrat, be given the opportunity to replace the conservative jurist. Four years later, after the death of Justice Ruth Bader Ginsburg, Republicans rushed to replace the liberal Clinton appointee with conservative Amy Coney Barrett before Election Day, when Republican President Donald Trump would lose his reelection bid. While Scalia’s seat was held open for fourteen months, Ginsburg’s was filled in less than six weeks. Both instances represent the degradation of norms that once governed Supreme Court confirmations in the United States Senate.

How has the erosion of these norms shaped popular attitudes toward the high court? Many argue that while ideological satisfaction is not a major predictor of long-term diffuse support for the Supreme Court, support for democratic values and norms is (e.g., Gibson & Nelson 2015; cf. Bartels & Johnston 2013). If this is indeed the case, we might expect to see waning support for the Court due not to its rightward shift, but due to the historically unusual and politicized process that led to this ideological shift. I propose a survey experiment aimed at disentangling the ideology from procedural norms. In this 2x2 factorial design, respondents will be given a brief description of the Supreme Court and its justices; in one set of conditions, the description will either remind respondents of the Court’s ideological leanings or stay silent on the matter; in the other set, the description will either note how some recent justices were appointed by skirting longstanding Senate norms or not discuss the confirmation process at all. In this way, I can evaluate the effect of ideological distance from the Court, procedural norm erosion, and the interaction of the two on attitudes toward the institution.

This research will not only contribute to the literature on the sources of judicial legitimacy, but will also inform the ongoing political debate over judicial reform. In response to Justice Barrett’s confirmation, many Democrats openly supported reforms such as adding justices to the Court or implementing judicial term limits. In response, President Joe Biden has recently staffed a commission on Supreme Court reform. By evaluating the degree to which polarized confirmation politics and the subsequent erosion of norms have affected the Court’s public standing, we may better understand the potential crisis and its possible solutions.

Author

• Michael Salamone, Washington State University