Americans Reveal Aspects of the U.S. Supreme Court They Would Prefer Altered in New Survey from Saint Leo University, Including an Age for Justices to Retire

• Partisan sentiments play a role in some results
• From a practical standpoint, changes are hard to make

ST. LEO, FL – New survey results collected nationally by the Saint Leo University Polling Institute (http://polls.saintleo.edu) indicates that more than six in 10 Americans favor a mandatory retirement age for the justices appointed to the U.S. Supreme Court, rather than allowing them to serve for the duration of their lives, as the current system permits.

That would be a profound shift. At present, justices may retire if they so wish, as did former Associate Justice Anthony M. Kennedy in 2018. But others have served until their death, such as the late Antonin Scalia, who passed in early 2016, the month before he was due to turn 80 years old.

The survey specifically found that 62.7 percent of the 1,000 respondents agreed strongly or somewhat agreed that there should be a mandatory retirement age for justices on the high court. This was the most striking result of 10 test statements posed to online respondents by the Saint Leo University Polling Institute from April 22 through April 29. Findings from the full base of 1,000 respondents are subject to a margin of error of plus or minus 3.0 percentage points.

The polling institute has asked limited questions about Supreme Court matters previously in other national surveys. This time, the institute presented members of the public with 10 test statements or opinions about the court’s practices and its justices to see how willing the public might be to accept changes to current norms, given some of the legal questions America is confronting in this generation. People responded that they either agree strongly, agree somewhat, disagree somewhat, or disagree strongly with each idea presented.

Frank Orlando, director of the Saint Leo University Polling Institute, explained more about why public opinion about the court’s workings matter in politics now. “The court is the branch that is farthest from the public in terms of selection,” he said.

“Republicans have lost many fronts of the culture war in the courts, and this has led them to place a high value on controlling the parts of government that control the court,” Orlando continued. “For instance, some Republicans supported Donald Trump for president in 2016 because they preferred that he, instead of Hillary Clinton, nominate the next Supreme Court justice. With the appointment of Associate Justices Neil Gorsuch and Brett Kavanaugh, liberals are firmly in the minority on the court, and Democrats are concerned about what this could mean on a variety of social issues. This has led to questions about the legitimacy of the court and strength of its institutional arrangement.”

Given the recent illnesses of 86-year-old Associate Justice Ruth Bader Ginsburg, and the nearing 2020 presidential election, the discussion could become more intense, said Orlando, who also teaches political science at the university.

Potential Cases

It is quite possible that two controversial cases could arrive at the U.S. Supreme Court as soon as the 2020 court term, added Joseph Cillo, JD, a faculty member at Saint Leo who teaches classes on substantive criminal law and the Supreme Court. The anticipated arguments concern controversial state laws just passed in Georgia and Alabama that will limit access to legal abortion once the laws become effective.

“The issue being presented in each of these cases,” Cillo said, “is when life begins. Both states make an argument for first-trimester recognition as the beginning of life. Georgia sets forth that fetal heartbeat is the beginning of life, while Alabama argues that the first sign of brain activity is the beginning of life. In both cases the events occur within the first four weeks of pregnancy.” Abortions would be outlawed or restricted after those points of development under the new state laws.

Other important cases and issues are in the offing that concern the death penalty, Cillo added. In one instance, the high court is likely to be asked to consider whether “cruel and unusual punishment” is being inflicted—which is prohibited by the U.S. Constitution. Another potential question will hinge on whether due process and equal protection under the law has been available to defendants, a protection afforded by the U.S. Constitution.

California, Cillo noted, has recently opted out of the death penalty, bringing to 30 the number of states that allow capital punishment.

Whatever side an individual takes on any of these matters, Cillo said, it is wise for citizens to recognize that a shift in the Supreme Court’s pattern of rulings on any of these issues could change certain cultural norms, and that the ramifications could last for decades. “It is social upheaval waiting to happen,” he said.

Consequently, the Saint Leo University Polling Institute decided to ask Americans what they think about the justices who decide these matters: how they are nominated, how many there should be, how long into their lifespans they should work, and related topics, such as the possibility of telecasting from the court. Of the survey’s 10 questions, respondents reacted most positively with ideas about altering the justice’s length of possible service, and checking on their health regularly.

For instance, the mandatory retirement age idea, embraced by 62.7 percent of the overall survey, was similarly popular among Republicans, Democrats, and independents. Of the Republicans in the survey, 67.2 percent agree; of Democrats, 64.6 agree, and of independents, 61.2 percent agree.

Broad majorities liked the idea of mandatory physical and mental health exams for justices, as well.

With other test statements, there was more variation in sentiment along party lines. While 62 percent of the sample overall say they support moving from lifetime appointments to the court to term limits, 70.3 percent of the Democrats said they like that idea. Of Republicans, 57.7 agree.

Orlando noted: “We see some partisan disagreement on issues that have been raised by presidential candidates. Democrats are more likely to want to stop the practice of lifetime appointments and increase the size of the court. This seems like a situation of opinion change being driven from the top down. Still, even among Democrats, the court-packing idea is not popular.”

The full results are shown here.         

Percentages (combined) of those who agrees strongly or somewhat with these ideas about the U.S. Supreme Court (SCOTUS)

 *Not listed as a requirement in the U.S. Constitution.

Orlando also noted that 63 percent of Democrats, compared to just 36.9 percent of Republicans, and 50 percent of the general population, think nominees to the high court should release their tax filings during the nomination and approval process. “We can see presidential politics bleeding over into the court with Democrats much more likely to want nominees to release their own tax returns. This is another sign that increased public attention on the court may lead to the politicization of the court, similar to the polarization that has affected other aspects of American politics.”

Customary Practices vs. Constitutional Requirements

Still, from a practical standpoint, changing major elements of court operation would be difficult.

For instance, the U.S. Constitution gives Congress the power to establish how many justices there should be. It was in 1869 that Congress decided the number should be nine, and it has been that way since then.

Also, the U.S. Constitution does not set as requirements for justices two characteristics that were included in the survey as test ideas—U.S. citizenship or a minimum age. Requirements on these categories are set out in the Constitution only for the president (in the original text), and for Congressional representatives and senators (through amendments).

“Most Americans, Cillo said, “do not know how to amend the United States Constitution. It is at best a complicated process.”

He explained that “there are actually four ways. (1) Both houses propose an amendment with a two-thirds vote, and three-fourths of the state legislatures approve. Twenty-six of the 27 amendments were approved in this manner. (2) Both houses propose an amendment with a two-thirds vote, and three-fourths of the states approve the amendment via ratifying conventions. Only the 21st Amendment, which repealed Prohibition, was passed in this manner. (3) Two-thirds of the state legislatures call on Congress to hold a constitutional convention, and three-fourths of the state legislatures approve the amendment. (4) Two-thirds of the state legislatures call on Congress to hold a constitutional convention, and three-fourths of the states approve the amendment via ratifying conventions.”

About the Poll

METHODOLOGY: This national survey was conducted from April 22 through April 29, 2019, among a base of 1,000 respondents nationally, using an online instrument. The national sample has an associated margin of error of +/- 3.0 percent at a 95 percent confidence level.

During the same time frame, the same online survey was administered to a sample of 500 residents of Florida. The Florida poll has a +/- 4.5 percent margin of error at a 95 percent confidence level (on a composite basis).

The Saint Leo University Polling Institute conducts its surveys using cutting-edge online methodology, which is rapidly transforming the field of survey research. The sample is drawn from large online panels, which allow for random selections that reflect accurate cross sections of all demographic groups. Online methodology has the additional advantage of allowing participants to respond to the survey at a time, place, and speed that is convenient to them, which may result in more thoughtful answers. The Saint Leo University Polling Institute develops the questionnaires, administers the surveys, and conducts analysis of the results. Panel participants typically receive a token incentive—usually $1 deposited into an iTunes or Amazon account—for their participation.

The Saint Leo University Polling Institute survey results about national and Florida politics, public policy issues, Pope Francis’ popularity, and other topics, can also be found here: http://polls.saintleo.edu. You can also follow the institute on Twitter @saintleopolls.

Media contacts: Jo-Ann Johnston, Saint Leo University, University Communications jo-ann.johnston@saintleo.edu or (352) 588-8237 or (352) 467-0843 (cell/text).     

Mary McCoy, Saint Leo University, University Communications mary.mccoy02@saintleo.edu or (352) 588-7118 or (813) 610-8416 (cell/text).

More About Saint Leo University
Saint Leo University (www.saintleo.edu) is a modern Catholic teaching university that is firmly grounded in the liberal arts tradition and the timeless Benedictine wisdom that seeks balanced growth of mind, body, and spirit. The Saint Leo University of today is a private, nonprofit institution that creates hospitable learning communities wherever students want to be or need to be, whether that is a campus classroom, a web-based environment, an employer’s worksite, a military base, or an office park. Saint Leo welcomes people of all faiths and of no religious affiliation, and encourages learners of all generations. The university is committed to providing educational opportunities to the nation’s armed forces, veterans, and their families. Saint Leo is regionally accredited to award degrees ranging from the associate to the doctorate, and the faculty and staff guide all students to develop their capacities for critical thinking, moral reflection, and lifelong learning and leadership.

The university remains the faithful steward of the beautiful lakeside University Campus in the Tampa Bay region of Florida, where its founding monks created the first Catholic college in the state in 1889. Serving nearly 12,000 students, Saint Leo has expanded to downtown Tampa, to other sites in Florida and beyond, and maintains a physical presence in seven states. The university provides highly respected online learning programs to students nationally and internationally. More than 93,000 alumni reside in all 50 states, in Washington, DC, in three U.S. territories, and in 76 countries.