Writing in the New York Times, Jeffrey Rosen makes a strange argument:

Yet even as interest groups were bemoaning the fact that a handful of centrists had narrowly prevented the Senate from blowing itself up [with the deal averting the nuclear option], the country as a whole was applauding the compromise. An independent poll conducted by Quinnipiac University found that 55 percent of respondents thought the filibuster should be used to keep unfit judges off the bench, as opposed to 36 percent who thought it should not. Moreover, the country seemed less worried about partisan judges than about partisan senators and representatives. In the days before the deal, a CBS News poll found that 68 percent of respondents said that Congress ”does not have the same priorities for the country” as they do. By contrast, the Quinnipiac poll found that a 44 percent plurality approved of the way the Supreme Court is handling its job.

Put another way, it would seem that, on balance, the views of a majority of Americans are more accurately represented by the moderate majority on the Supreme Court, led in recent years by Justice Sandra Day O’Connor, than by the polarized party leadership in the Senate, led by Bill Frist and Harry Reid.

As Sam Rosenfeld noted in Tapped (see also Eric Alterman), these data just do not support Rosen’s claim. Methodologically, Rosen is comparing apples and oranges: a question about the priorities of Congress from one poll versus a question about approval of the Supreme Court from another. Second, the military and the judiciary almost always have higher approval ratings than Congress because they are generally backed by elites on both sides of the partisan divide. And it’s not clear that the comparison is meaningful. Approval of the Court — an explicitly non-representative body considering esoteric legal questions — does not seem directly comparable to approval ratings for Congress, which is a representative assembly with the job of addressing pressing public issues.

And even if Rosen is right that we should compare the public’s views of Congress and the Supreme Court, he’s wrong about what the numbers say. If you actually read the Quinnipiac polling results, you find that voter approval of the Court is quite low:

Voters nationwide approve 44 – 39 percent of the job the U.S. Supreme Court is doing, the lowest score for the court and down from a 56 – 27 percent approval in a March 5, 2003, poll by the independent Quinnipiac University.

Those approval numbers aren’t much better than the ones that other polls have found for Congress as a whole in the last month, which range from 29
percent to 41 percent, with approval ratings of the Democrats and Republicans in Congress in the 35 percent to 42 percent range.

Finally, a Gallup poll that ran as a sidebar to Rosen’s article, but which isn’t cited in the text, shows that 41 percent of Americans trust the Supreme Court “a great deal” or “a lot” – more than Congress (22 percent), but less than the presidency (44 percent). These numbers also seem to contradict Rosen’s thesis given that President Bush is the most partisan president in recent memory.

In short, the argument is a mess.

Update 6/16: Rosenfeld notes a new Pew poll showing a similiarly dramatic drop in favorability ratings of the Supreme Court among the public — the Court is viewed favorably by only 57 percent of Americans (down from 68 percent in January 2001), compared with 49 percent for Congress.