The framers’ decision to ratify a written Constitution was a radical step in democratic self-governance. Unlike the English approach, where an unwritten “constitution” consists of traditional practices, America’s Constitution is explicitly written. This was an intentional development. North Carolina wasted no time creating its own written constitution in 1776 after declaring independence from Britain.
As constitutional scholar Michael Paulsen puts it, “The whole point of a written constitution — the great American advance in political science — was to set forth clearly and absolutely what government could and could not do.”
And when Congress or the president oversteps the Constitution’s written boundaries, the Supreme Court’s job is to call foul.
Each term, the court’s decisions are largely uncontroversial. In the 2022-23 term, for instance, more than half of the court’s decisions were unanimous or decided by an 8-1 majority. But inevitably, the court also makes closer calls. This natural conflict results from a written constitution, a conscious decision to grant the court interpretative power, and two governmental branches constantly searching for the outer limits of their powers.
Despite remaining the one branch working as the framers intended, public opinion of the court has plummeted. A July 2024 Gallup poll found that 52% of Americans disapproved of the court’s handling of its job, with just 43% approving. Likewise, half (up from 35% in 2019) of those polled in a 2022 study by the University of Pennsylvania’s Annenberg Public Policy Center feel that justices are “just like any other politician.”
This collapse of public support is symptomatic of a greater disease plaguing American politics. Bad actors exploit Americans’ civic ignorance to portray the Supreme Court as a corrupt, political body. The same happens to North Carolina’s originalist state Supreme Court majority, who is frequently accused of partisanship for remaining within its delegated limits — which appears unusual to a public acclimated to justices legislating from the bench.
The overall trend of civic ignorance is well-established. In the 2023 Annenberg Civics Study, only 5% of respondents correctly named all five rights protected by the First Amendment. Fifty percent named one or two First Amendment rights, and, strikingly, 20% could not name any. Which begs the question: If Americans cannot even name constitutional rights, how do they decide if the court has correctly decided a complex constitutional question?
Those unhappy with the court’s decisions use this knowledge gap to their advantage to discredit the court’s decisions. By exploiting civic ignorance and oversimplifying legal arguments, they artfully paint the Supreme Court as a political boogeyman.
Take the reaction to Trump v. United States, for example. Just 40 minutes after the release of the majority’s carefully crafted, 43-page opinion, Democrat Congresswoman Pramila Jayapal of Washington State derided the opinion as a “shocking” ruling from an “extreme right-wing” court. Others continued their calls to reform and pack the court. Absent from the fallout, however, were discussions about the opinion’s reasoning, like the relationship between a president’s exercise of enumerated constitutional powers and any immunity for such acts. In fact, as some point out, many who regularly criticize the court’s decisions do so even before enough time has passed to physically read the opinion.
Unsurprisingly, those with higher levels of civic knowledge are more likely to support an independent judiciary. Regarding a 2018 version of the Annenberg Center poll, Temple University Professor Bruce Hardy concluded that there was a “direct relationship between basic knowledge about the three branches of government and wanting to protect the independence of the courts.”
Simple facts about this court dispel its opponents’ most virulent narratives. One such popular narrative is that the justices always render decisions consistent with their political beliefs. Yet the real story is far more complex: the justices are intellectually diverse — even within their respective wing — and apply unique methods to resolve complex legal questions.
Two recent cases demonstrate that ideological diversity is alive and well within this court. In Fischer v. United States, the majority and dissent split 6-3 on federal prosecutors’ use of the Sarbanes-Oxley Act of 2002 (an Enron-era law) to prosecute Jan. 6 rioters. The key question the court considered was the meaning of “otherwise,” a residual clause within the act.
Under the “politicians in judges robes” theory, one expects the decision to break in a 6-3 vote — and it does. Yet Justice Jackson joined the majority, with Justice Barrett — a Trump appointee — authoring the dissent. Similarly, in Bostock v. Clayton County, it was Justice Gorsuch — another Trump appointee — who authored the majority opinion extending Title VII protections to gay and transgender individuals. Over the vigorous dissents of two of his conservative colleagues, Justice Gorsuch explained why, in his view, the word “sex” in the Civil Rights Act extends protection to gay and transgender individuals.
And this phenomenon is not recent. The late Justice Scalia, the modern conservative legal movement’s most celebrated jurist, was among the administrative state’s most ardent defenders.
A statistical breakdown of this term’s split decisions further blasts a hole in the “MAGA-court” myth. Of the 22 6-3 decisions issued in this term, only 11 maintained a “conservative versus liberal” split, slightly up from last term’s five. If the court truly had, as former House Speaker Nancy Pelosi put it, “gone rogue,” wouldn’t we see a consistent, conservative voting block?
The predominant public narrative is that the current Supreme Court is playing politics. The truth is just the opposite. Each term, in resolving a few cases, the court’s conservatives align in deferring to the written Constitution’s text, structure, and original meaning. Put simply, constitutional originalists believe that controversial policy choices are best left to us — the people. That belief is no less legitimate than one that encourages nine unelected judges to morph constitutional text to solve policy disputes, taking them out of voter’s hands. The mainstream debate surrounding court reform is nothing more than a solution searching for a problem.