The forthcoming article “Partisan sorting, fatalism, and Supreme Court legitimacy” by Nicholas T. Davis and Matthew P. Hitt is summarized by the author(s) below.
Shortly after taking office in January, 2025, President Donald J. Trump issued an executive order freezing trillions of dollars of federal funding appropriated by Congress. While the order was rescinded after intense public criticism, other provocations like shuttering USAID or closing the Department of Education are almost certain to end up at the U.S. Supreme Court.
In such cases, the Court, lacking the power of either purse or sword, relies on its store of perceived legitimacy in the mass public to exercise its authority over life, liberty, and property. It is this very store of legitimacy – sometimes called “diffuse support” – that the Court relies upon when it defies the wishes of the president or Congressional leaders. Historically, the Court maintained a strong reservoir of this support. But, today, the conditions that sustained such support have rapidly evolved.
In recent years, new appointees to the Court were involved in nomination controversies featuring bruising partisan conflicts and party-line confirmation votes in the Senate. In turn, not only have several justices become embroiled in public ethics scandals, but the conservative majority began issuing salient and deeply polarizing rulings, overturning Roe v. Wade in Dobbs v. Jackson and giving the President of the United States immunity for official actions taken while in office (Trump v. USA).
Have these developments affected the Court’s perceived legitimacy?
We assembled a historical dataset of public opinion surveys regarding the Court dating back to 2012. To this dataset, we added an original, nationally-representative, six-wave panel study, spanning May of 2022, a month prior to Dobbs, through April of 2024. We show first that the Court’s diffuse support was indeed quite robust among all citizens prior to 2016, replicating findings showing few differences among Democrats and Republicans.
However, we then show that diffuse support among Democrats began falling precipitously after 2016, bottoming out after the Court’s ruling in Dobbs, and remained substantially lower than that of Republicans’ for the entirety of our panel study. Further, we find that partisanship structures an ongoing sorting out of other key attitudes about the Court: Democrats disapprove of the Court, hold weaker support for the “rule of law,” and are more cynical about justices’ motivations than Republicans.
We then demonstrate that one key factor associated with this durable decline in diffuse support is fatalistic attitudes about Court. Drawing on literature in clinical and social psychology, we derive a new closed-ended measure, Supreme Court Fatalism, that functions as a summary property of “specific” or contemporaneous support for the Court’s outputs. This battery includes items measuring respondents’ pessimism about the trajectory of the Court, as well as their feelings of helplessness to control its rulings. This combination of pessimism and a sense of an external locus of control is strongly associated with low perceived legitimacy of the Court.
Our findings show that the Supreme Court’s perceived legitimacy now rests on weak and polarized foundations. These fatalistic Democratic attitudes will remain so, especially should the Court affirm constitutionally questionable and polarizing actions by the Trump administration.
About the Author(s): Nicholas T. Davis is an Associate Professor of Political Science at the University of Alabama, where he runs the Democracy and Open Science (DEMOS) lab and Matthew P. Hitt is the Interim Director of the Institute for Research in the Social Sciences and Associate Professor of Political Science at Colorado State University. Their research “Partisan sorting, fatalism, and Supreme Court legitimacy” is now available in Early View and will appear in a forthcoming issue of the American Journal of Political Science.
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