On Polls and Supreme Court Legitimacy
Did the Supreme Court Lose or Gain Legitimacy in 2025?
Ryan Doerfler and Sam Moyn have ratcheted up their now-longstanding critique of the Supreme Court, impugning it as an illegitimate institution. (See here and here.) Their arguments are serious and fall within a venerable tradition including many conservatives from past generations, such as Judge Robert Bork.
I am on record as having various disagreements with the authors’ position, but here I want to focus on a specific claim that I think is both new and incorrect.
The authors frame their argument around an arresting claim. To quote their Guardian piece: “In Donald Trump’s second term, the supreme court’s conservative supermajority has seized the opportunity to empower the nation’s chief executive. In response, public approval of the court has collapsed.” In support of that point, the authors’ scholarly and popular articles respectively cite and link to a September 2025 Pew Research post recounting poll data on “favorable views of the Supreme Court.”
The authors’ poll-based claim is important because it creates a sense of urgency and timeliness around their project. The claim also underwrites the authors’ premise that the Court has lost something more permanent, namely, its “legitimacy.”
Yet the linked post does not support the authors’ claim and, if anything, contradicts it. Based on the cited Pew research, the Court’s legitimacy has not declined during the past year and may well have increased.
First, the Pew post does not show a steep drop in Court favorability during the current Trump administration. On the contrary, the post shows overall favorability remaining roughly constant over the last couple years and slightly increasing as compared with 2024. That is close to the opposite of what the authors claim.
Second, the Pew post also provides more granular data that undermines the authors’ claim. For instance, a heading over one table reports: “Share of Democrats saying the Supreme Court has too much power is down but remains higher than in 2020.” The table shows a large *decrease* in the percentage of Democrats who think the Court has too much power during the past year (from 62% to 43%). This result, too, contradicts the authors’ claim.
Third, and perhaps most fundamentally, the poll results do not purport to measure the Supreme Court’s “legitimacy.” The overall figures reflect favorability ratings. It is entirely possible—indeed, very likely—that many respondents believe the Court is legitimate even as they view its work unfavorably. (The reverse is also possible: believing the Court is illegitimate but favorably looking upon its decisions.)
And there is good reason to think that the Court still commands substantial bipartisan legitimacy. To wit, though the Court’s overall favorability numbers have been down, large supermajorities have reported this year that the President must follow Supreme Court decisions. That separate polling result comes closer to measuring “legitimacy” than the poll that the authors cite (while of course still being imperfect).
To draw out this point, note that the cited Pew post indicates the same level of overall favorability toward the Court (48%) in 2025 as around 2015, the year that Obergefell v. Hodges was decided. At that time, conservative support for the Court dropped (albeit not to the depths that liberal support has now descended). But then the Court turned to the right, and conservative favorability greatly increased. Here too, favorability seems to measure something much more plastic and transient than institutional legitimacy.
I do not want to pick on the authors, who raise many good points. There is indeed ample cause for concern—about the courts, the government, and the country. What is happening now is not just a retread of 2015. Even so, the poll data is, at a minimum, much more complex than many headlines and commentaries would suggest.