The Supreme Court's Balance as a Poltiical Issue

Ann Althouse highlights an ABC poll that find that three in 10 Americans believe the Supreme Court is too conservative.

Three in 10 Americans say the Supreme Court is "too conservative," up sharply from two years ago and now substantially more than call it "too liberal." Just under half say the court is about balanced ideologically in its decisions.

Thirty-one-percent call the court too conservative, compared with 19 percent in July 2005 -- a period in which Chief Justice John Roberts and Justice Samuel Alito have joined the court, replacing William Rehnquist and Sandra Day O'Connor.

Considerably fewer, 18 percent, call the court too liberal. Forty-seven percent say it's balanced, down from 55 percent in 2005.

Naturally there are sharp ideological differences in these views. Fifty-one percent of liberals see the court as "too conservative," compared with 36 percent of moderates and 10 percent of conservatives. Indeed a third of conservatives call it too liberal.

Althouse has some advice for Democrats seeking to make a political issue of the Court's philosophical leanings:

Actually, I think it's surprising, after all the press coverage of the Roberts and Alito nominations, that many more Americans haven't absorbed the view that the Supreme Court is too conservative. It suggests that the issue of Supreme Court appointments isn't going to work very well for the Democratic presidential candidates, who must be hoping to alarm people about the Court. By 55-43%, Americans approved of the Court's decision upholding the federal ban on "partial birth" abortion. And abortion is -- by far -- the main issue Democrats use to fire up voters.

But how are you supposed to vote if you think the Court is currently well-balanced? It depends on who we predict will leave the Court in the next 4 years. The Democrats ought to stress that it is far more likely that 2 or 3 liberal Justices will be going and that we need a Democratic President to preserve the balance. That is, you don't need to convince people that the Court has become too conservative and needs to be changed, only that the current balance is good. Don't demonize Alito and Roberts. Just appeal to our love of stability.

Such a political appeal is probably going to be far more productive for Democrats than a "the Court's too Conservative" line of attack. When almost half of America think the Court is well balanced, it would seem that with Justices Stevens and Ginsburg the most likely retirements in the next four years, then appealing for a Democrat in the White House to preseve the balance is the best idea.

For me, as far as the Court is concerned, the bigger problem is the "swing block" is much too small--only one Justice. On too many questions of Constitutional rights and sharply divided political turned legal questions, Justice Kennedy is the most important person in America and that is simply too much power and responsibliity ensconced in one person. I would feel less concerned if I could understand Kennedy's guiding principles that he uses to arrive at decisions, but they appear to be unfathomable which gives a sort of credence to the opinion that important Supreme Court decisions could turn on how Justice Anthony Kennedy is feeling that day.