The results of a new Gallup poll offer alarming evidence of a serious erosion of confidence in the American judicial system. And if that was not enough of a signal, a survey done by Monmouth University delivered more bad news for people concerned about the rule of law in this country.
It found that almost a quarter of the American public would not be “bothered at all” if the president suspended some “laws and constitutional provisions.” Another quarter would only be bothered “a little.”
Reading these results, I was reminded of the quote from the Pogo comic: “We have met the enemy, and it is us.”
As commentators from Alexander Hamilton to the present have said, the rule of law can only survive if the people have faith that it is applied impartially and equally and that everyone will follow the rules, even when it is inconvenient for them to do so. Faith — that is the right word.
Hamilton understood this.
In Federalist 78, he predicted that the judiciary “will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them.” The judiciary, he argued, would “have neither FORCE nor WILL, but merely judgment.”
The quality of that judgment, he continued, “may therefore be justly regarded as an indispensable ingredient in its constitution, and, in a great measure, as the citadel of public justice and public security.”
In Federalist 22, Hamilton noted that unless people have faith in judges and respect their judgments, “laws are a dead letter.”
Four years ago, the National Judicial Council, echoing Hamilton, offered advice for people new to the bench. “As a judge,” it said, “you have no ability to enforce the decisions you make. … If you sentence someone to jail, you have no power to make certain that sentence is carried out.”
That is why the council described the power of courts as “fragile” and concluded that the rule of law depends on the willingness of “good people” to “follow the law because that is what good people do.”
The new surveys highlight that fragility and document a dramatic loss of faith in the courts and the rule of law among “good people” in the United States. Let’s start with Gallup.
It summarizes its major findings: “Americans’ confidence in their nation’s judicial system and courts dropped to a record-low 35% in 2024. The result further sets the U.S. apart from other wealthy nations, where a majority, on average, still expresses trust in an institution that relies largely on the public’s confidence to protect its authority and independence.”
“Since 2020,” Gallup continues, “confidence in the courts … has seen a sharp decline -- 24 percentage points.” In fact, the only nations that have seen anything close to such a precipitous decline are “Myanmar (from 2018 to 2022) overlapping the return to military rule in 2021, Venezuela (2012-2016) amid deep economic and political turmoil, and Syria (2009-2013) in the runup to and early years of civil war, and others that have experienced their own kinds of disorder in the past two decades.”
That’s some company for a nation supposedly steeped in the traditions Hamilton initiated.
The bad news does not end there. Gallup reports: "The judiciary stands out for losing more U.S. public confidence than many other U.S. institutions experienced between 2020 and 2024.”
Things don’t look much better in the Monmouth survey. It found stark partisan divides in what respondents would think if the president disregarded the “laws and constitutional provisions to go after political enemies.” Just over one-third of Republicans said, “It wouldn’t bother them at all if Trump suspended some laws and constitutional provisions to go after political enemies, while an additional 34% said it would only bother them ‘a little’ if the incoming president took such a step.”
But, as The Washington Post’s Aaron Blake notes, it isn’t only Republicans who have these views. Trump-leaning independents have also shifted significantly. “Overall, the percentage of independents who say they would be bothered a lot if Trump targeted his enemies has dropped from 68 percent in June, to 60 percent in October, to 55 percent today.”
These results are partially attributable to the fact that the question Monmouth asked named Donald Trump as the person who might suspend the law.
An Ipsos poll done last spring did not refer to Trump when it asked whether “a strong president … should be allowed to rule without too much interference from courts and Congress.” Even so, 52 percent of Republicans said yes.
The Gallup results help explain why many Americans would be okay with presidential departures from the rule of law. If people aren’t confident in courts or have lost faith in the judgments they make, it is hardly surprising that they might be open to such defiance.
Why does the United States find itself in this grim situation?
Many factors could be cited, including questionable ethical judgments by Supreme Court Justices, unpopular judicial decisions, and partisan attacks on courts and judges.
But here, I’d like to suggest that the judiciary has not helped itself in the way it goes about its business. Take the nation’s highest court.
As the journalist Kevin Drumm puts it, “The Supreme Court has always been political, but … it [has never] been so nakedly political.” Drumm is right to say, “They barely even bother trying to hide it.”
In the lower courts, similar things are happening. For example, Alma Cohen of Harvard Law School has shown that “the judges’ political affiliations, inferred from the party of the appointing president, can be used as a predictive tool for decision outcomes in 92% of the circuit court decisions studied.”
And do you think it is an accident that Republican litigants have beat a path to Amarillo, Texas, to get their cases heard by federal District Judge Matthew Kacsmaryk, who New York Democratic Sen. Chuck Schumer calls the MAGA movement’s “favorite judge”? Judge shopping is hardly one-sided. For years, liberals tried to get cases heard in the 9th U.S. Circuit Court of Appeals, which was notorious for the leftward tilt of its decisions.
The American public has gotten the message. More than six in 10 now say that “politics, not law” explains Supreme Court decisions.
Finally, why should anyone respect the court or its justices when they don’t display respect for each other in their written opinions? Just read what Justice Samuel Alito said about the justices who had decided Roe v Wade, which he called “egregiously wrong from the start.”
He accused them of “usurp[ing] the power to address a question of profound moral and social importance that the Constitution unequivocally leaves for the people.” Or recall Justice Sonia Sotomayor’s suggestion that the court is putting its survival in peril by making decisions that “are just political acts."
Ultimately, we cannot snap our fingers and restore public confidence in courts and faith in the rule of law. But we can call on judges at every level of the court system to stop digging the hole any deeper.
The new polling results should be a wake-up call and a reminder that unless they behave in ways that inspire, rather than undermine, belief in the fairness of their rulings, “good people” may conclude that the rule of law is a hoax. And that is a stepping-stone to authoritarianism.
Sarat is the William Nelson Cromwell professor of jurisprudence and political science at Amherst College.
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