Jan. 27, 2022

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Marquette Law School Poll national surveys of public opinion about the nation’s high court offer insight as a long-time but low-profile justice leaves the Court and high-profile nomination processes take the spotlight

Presented by Dr. Charles Franklin, director of the Marquette Law School Poll

MILWAUKEE —Even to the day it was reported that Justice Stephen Breyer is retiring from the U.S. Supreme Court, he consistently ranked as the justice whom the fewest Americans know.

In results released on Wednesday, Jan. 26, before word of Breyer’s plans circulated, the Marquette Law School Poll's Supreme Court Survey found that only 21% of people nationwide said they knew enough about Breyer to have an opinion about him.

But, Breyer’s impending departure from the Court puts on the front burner the nomination and confirmation process for members of the Court, and the Marquette Law Poll surveys provide insight into public opinion about how those steps have been handled in recent years.

The Marquette Law Poll has examined nationwide opinion about the Supreme Court six times, beginning in 2019. This news release describes what has been found about opinions of Breyer and of the way court selections have been handled.

Justice Breyer Favorability

Justice Breyer has consistently been the least well-known justice among the general public, with fewer than 25% able to offer an opinion of him.

Table 1 shows the public’s ability to rate, and the favorability ratings, of all nine justices in the Jan. 10-21, 2022, survey. All numbers in tables are percentages.

Table 1: Recognition and favorability ratings of justices, January 2022

Justice	Able to rate	Net favorability	Favorable	Unfavorable
Samuel Alito	26	6	16	10
Amy Barrett	46	-2	22	24
Stephen Breyer	21	7	14	7
Neil Gorsuch	29	1	15	14
Elena Kagan	28	8	18	10
Brett Kavanaugh	53	-11	21	32
John Roberts	38	12	25	13
Sonia Sotomayor	50	20	35	15
Clarence Thomas	55	5	30	25

The trend in favorability of Justice Breyer is shown in Table 2.

Table 2: Percent of people nationwide who rated Justice Breyer, and their ratings, September 2019-January 2022

Poll date	Able to rate	Net favorability	Favorable	Unfavorable
Sept. 3-13, 2019	16	6	11	5
Sept. 8-15, 2020	18	6	12	6
July 16-26, 2021	24	12	18	6
Jan, 10-21, 2022	21	7	14	7

“Should Justice Breyer retire?” from July 16-26, 2021

In the Marquette Law Poll’s Supreme Court survey of July 2021, a national sample of 1,010 adults were asked about the role of partisan control of the presidency and Senate in the timing of Supreme Court retirements.

A majority of the public thought that justices should not consider partisan control of the presidency and Senate when deciding the timing of their retirements. However, when given information that some Democrats were urging Justice Stephen Breyer to retire while there was a Democratic president and Democratic control of the Senate, more people supported a justice’s retiring with politics in mind, although it remained a minority overall.

When asked, “Do you think justices should consider the party in control of the White House and Senate as they decide when to retire?” 28% said justices should consider party control, while 72% said they should not consider this. This item was asked of a random half of all those surveyed at the time. The other random half of respondents was provided more information and context in the form of an alternative question: “Justice Stephen Breyer is 82 years old and the oldest member of the Court. He was nominated to the court in 1994 by President Clinton. Some Democrats are urging Breyer to retire now while there are a Democratic president and Senate. Do you think Justices should consider the party in control of the White House and Senate as they decide when to retire?” With this wording, 39% said justices should consider party control, while 60 percent said they should not.

The partisan information in the question boosted support for political timing of retirements across partisan identification among respondents, especially Democrats, as shown in Tables 3 and 4.

Table 3: “Do you think Justices should consider the party in control of the White House and senate as they decide when to retire?,” July 2021

Party ID	Consider party control	Not consider party control
Republican	16	84
Independent	26	74
Democrat	41	59

Table 4: “Justice Stephen Breyer is 82 years old and the oldest member of the Court. He was nominated to the court in 1994 by President Clinton. Some Democrats are urging Breyer to retire now while there are a Democratic president and senate. Do you think Justices should consider the party in control of the White House and senate as they decide when to retire?,” July 2021

Party ID	Consider party control	Not consider party control
Republican	23	77
Independent	37	61
Democrat	58	42

Importance of the next nomination to the Supreme Court

Since 2019, the Marquette Law Poll’s national Supreme Court survey has asked how important the next Supreme Court appointment is to the respondent. There has been only a little change in public opinion during this time, although Democrats became somewhat more concerned, until that percentage dropped in November 2021.

Table 5: “How important is the choice of the next Supreme Court justice to you personally?,” September 2019-Nov. 2021

Poll dates	Very important	Somewhat important	Not too important	Not at all important
Sept. 3-13, 2019	47	31	15	7
Sept. 8-15, 2020	48	34	13	4
July 16-26, 2021	51	30	14	4
Sept. 7-16, 2021	52	31	14	3
Nov. 1-10, 2021	45	33	17	5

Importance of the next nomination to the Supreme Court, by party identification

Democrats saw Court nominations as more important to them than did Republicans in 2020 and 2021, although the percentage of Democrats saying “very important” fell in November 2021.

Table 6: “How important is the choice of the next Supreme Court Justice to you personally?” by party identification, September 2019-Nov. 2021

Party ID	Poll dates	Very important	Somewhat important	Not too important	Not at all important
Republican	Sept. 3-13, 2019	53	29	15	3
Republican	Sept. 8-15, 2020	48	33	14	4
Republican	July 16-26, 2021	48	29	15	8
Republican	Sept. 7-16, 2021	51	35	11	2
Republican	Nov. 1-10, 2021	43	42	13	3
Independent	Sept. 3-13, 2019	38	34	16	11
Independent	Sept. 8-15, 2020	39	37	16	8
Independent	July 16-26, 2021	46	33	15	5
Independent	Sept. 7-16, 2021	44	33	18	5
Independent	Nov. 1-10, 2021	45	27	20	8
Democrat	Sept. 3-13, 2019	54	29	12	4
Democrat	Sept. 8-15, 2020	56	32	10	1
Democrat	July 16-26, 2021	60	28	11	1
Democrat	Sept. 7-16, 2021	64	24	11	1
Democrat	Nov. 1-10, 2021	47	34	17	2

Perception of the ideological orientation of the Court

Since 2019, the Marquette Law School Poll’s Supreme Court Survey has asked respondents to describe their perception of the Court’s ideological location. The percentage of the public characterizing the Court as conservative increased between September 2020 and July 2021, after Justice Ruth Bader Ginsburg was replaced by Justice Amy Coney Barrett. (The September 2020 survey was completed before Ginsburg’s death.)

In 2019 and 2020, the wording was “very conservative, conservative, moderate, liberal or very liberal.” This was changed in 2021-22 to “very conservative, somewhat conservative, moderate, somewhat liberal or very liberal.” Table 7 below collapses responses to three categories to reduce any effect due to the use of “somewhat” or not and to simplify exposition. Table 8 shows the uncollapsed results.

Table 7: “In general, would you describe each of the following as … ?… The US Supreme Court?,” September 2019-January 2022

Poll dates	Conservative	Moderate	Liberal
Sept. 3-13, 2019	38	50	11
Sept. 8-15, 2020	35	54	11
July 16-26, 2021	50	42	7
Sept. 7-16, 2021	51	40	9
Nov. 1-10, 2021	51	39	9
Jan, 10-21, 2022	54	35	10

Table 8: “In general, would you describe each of the following as … ?… The US Supreme Court?,” September 2019-January 2022

Poll dates	Very conservative	Somewhat conservative	Moderate	Somewhat liberal	Very liberal
Sept. 3-13, 2019	5	33	50	9	3
Sept. 8-15, 2020	5	30	54	9	2
July 16-26, 2021	13	37	42	6	1
Sept. 7-16, 2021	16	35	40	7	2
Nov. 1-10, 2021	15	35	39	8	1
Jan. 10-21, 2022	17	38	35	8	2

Perception of the ideological orientation of the Court, by party identification

Perceptions of the ideological tilt of the Court are strongly related to partisanship, and partisan views have shifted over time. (As with the immediately previous pair of tables, Table 9 collapses responses to three categories to reduce any effect due to the use of “somewhat” or not and to simply exposition, while Table 10 shows the uncollapsed results. See the paragraph before Table 7 for a brief elaboration on the precise words given respondents as options in answering.)

Table 9: “In general, would you describe each of the following as … ?… The US Supreme Court?,” September 2019-January 2022

Party ID	Poll dates	Conservative	Moderate	Liberal
Republican	Sept. 3-13, 2019	27	58	14
Republican	Sept. 8-15, 2020	29	57	15
Republican	July 16-26, 2021	32	59	9
Republican	Sept. 7-16, 2021	35	46	19
Republican	Nov. 1-10, 2021	34	54	12
Republican	Jan. 10-21, 2022	33	51	16
Independent	Sept. 3-13, 2019	35	55	9
Independent	Sept. 8-15, 2020	32	57	11
Independent	July 16-26, 2021	49	41	9
Independent	Sept. 7-16, 2021	44	49	7
Independent	Nov. 1-10, 2021	47	40	12
Independent	Jan. 10-21, 2022	52	37	11
Democrat	Sept. 3-13, 2019	50	38	11
Democrat	Sept. 8-15, 2020	45	48	7
Democrat	July 16-26, 2021	68	29	3
Democrat	Sept. 7-16, 2021	74	21	5
Democrat	Nov. 1-10, 2021	70	27	3
Democrat	Jan. 10-21, 2022	76	20	5

Table 10: “In general, would you describe each of the following as … ?… The US Supreme Court?,” September 2019-January 2022

Party ID	Poll dates	Very conservative	Somewhat conservative	Moderate	Somewhat liberal	Very liberal
Republican	Sept. 3-13, 2019	4	23	58	11	3
Republican	Sept. 8-15, 2020	5	24	57	13	2
Republican	July 16-26, 2021	7	25	59	8	1
Republican	Sept. 7-16, 2021	2	33	46	15	3
Republican	Nov. 1-10, 2021	7	28	54	10	2
Republican	Jan. 10-21, 2022	4	30	51	11	5
Independent	Sept. 3-13, 2019	4	31	55	7	3
Independent	Sept. 8-15, 2020	4	28	57	9	2
Independent	July 16-26, 2021	9	40	41	7	2
Independent	Sept. 7-16, 2021	12	32	49	5	2
Independent	Nov. 1-10, 2021	12	35	40	11	2
Independent	Jan. 10-21, 2022	11	40	37	9	2
Democrat	Sept. 3-13, 2019	8	42	38	9	2
Democrat	Sept. 8-15, 2020	7	37	48	5	2
Democrat	July 16-26, 2021	25	43	29	3	0
Democrat	Sept. 7-16, 2021	34	40	21	4	1
Democrat	Nov. 1-10, 2021	27	43	27	2	1
Democrat	Jan. 10-21, 2022	35	41	20	5	0

Knowledge of the composition of the Supreme Court

A majority of the Court has been appointed by Republican presidents during all the Marquette Law School Poll surveys since 2019, but public awareness of this is far from universal. In six national surveys, no more than a third of respondents have said there is “definitely a majority appointed by Republican presidents,” while between 44 and 53% have said the majority was “probably” appointed by Republican presidents. Between 20 and 30% of respondents have said that Democratic presidents probably or definitely appointed the majority of the justices.

Table 11: “What is your guess as to whether a majority of the current US Supreme Court Justices were appointed by Democratic or Republican presidents?,” September 2019-January 2022

Poll dates	Definitely a majority appointed by Democratic presidents	Probably a majority appointed by Democratic presidents	Probably a majority appointed by Republican presidents	Definitely a majority appointed by Republican presidents
Sept. 3-13, 2019	4	23	53	19
Sept. 8-15, 2020	4	24	51	21
July 16-26, 2021	4	20	45	30
Sept. 7-16, 2021	4	22	46	29
Nov. 1-10, 2021	5	23	44	28
Jan. 10-21, 2022	2	21	44	33

Knowledge of the composition of the Court by party identification

Republicans are less likely to say the majority of justices were definitely appointed by Republican presidents than are Democrats.

Table 12: “What is your guess as to whether a majority of the current US Supreme Court Justices were appointed by Democratic or Republican presidents?,” by party identification, September 2019-January 2022

Party ID	Poll dates	Definitely a majority appointed by Democratic presidents	Probably a majority appointed by Democratic presidents	Probably a majority appointed by Republican presidents	Definitely a majority appointed by Republican presidents
Republican	Sept. 3-13, 2019	4	31	50	14
Republican	Sept. 8-15, 2020	4	31	49	16
Republican	July 16-26, 2021	6	24	53	16
Republican	Sept. 7-16, 2021	8	24	51	18
Republican	Nov. 1-10, 2021	6	27	46	21
Republican	Jan. 10-21, 2022	3	28	40	29
Independent	Sept. 3-13, 2019	4	23	55	16
Independent	Sept. 8-15, 2020	3	24	50	21
Independent	July 16-26, 2021	2	23	45	28
Independent	Sept. 7-16, 2021	2	24	51	24
Independent	Nov. 1-10, 2021	3	21	52	23
Independent	Jan. 10-21, 2022	2	21	48	28
Democrat	Sept. 3-13, 2019	5	16	53	26
Democrat	Sept. 8-15, 2020	5	17	53	24
Democrat	July 16-26, 2021	5	13	38	44
Democrat	Sept. 7-16, 2021	3	18	34	46
Democrat	Nov. 1-10, 2021	7	22	31	40
Democrat	Jan. 10-21, 2022	3	15	41	42

Justifications for voting against qualified nominee

The following items were asked in the Marquette Law School Poll’s Supreme Court survey conducted Sept. 8-15, 2020, before Justice Ruth Bader Ginsburg’s death on Sept. 18. The items were also asked in September 2019.

Table 13: “If a nominee for the U.S. Supreme Court is qualified and has no ethical problems, would U.S. Senators be justified or not justified in voting against that nominee simply because of how they believe the Justice would decide cases on issues such as abortion, gun control, or affirmative action?,” September 2019 and September 2020

Poll dates	Justified in voting against the nominee	Not justified in voting against the nominee	NA/Refused
Sept. 3-13, 2019	37	61	2
Sept. 8-15, 2020	41	58	1

Table 14: “If a nominee for the U.S. Supreme Court is qualified and has no ethical problems, would U.S. Senators be justified or not justified in voting against that nominee simply because the Senator is from a different political party from the President who made the nomination?,” September 2019 and September 2020

Poll dates	Justified in voting against the nominee	Not justified in voting against the nominee	NA/Refused
Sept. 3-13, 2019	19	79	2
Sept. 8-15, 2020	21	78	1

Justifications for voting to reject a nominee, by party identification

Neither Republicans nor Democrats were eager overall to support rejecting nominees solely on partisan grounds, with Democrats slightly more willing to reject a nominee on policy differences.

Table 15: “If a nominee for the U.S. Supreme Court is qualified and has no ethical problems, would U.S. Senators be justified or not justified in voting against that nominee simply because of how they believe the Justice would decide cases on issues such as abortion, gun control, or affirmative action?,” by party identification, September 2019 and September 2020

Party ID	Poll dates	Justified in voting against the nominee	Not justified in voting against the nominee	NA/Refused
Republican	Sept. 3-13, 2019	36	63	1
Republican	Sept. 8-15, 2020	39	60	1
Independent	Sept. 3-13, 2019	33	66	1
Independent	Sept. 8-15, 2020	36	62	2
Democrat	Sept. 3-13, 2019	43	55	2
Democrat	Sept. 8-15, 2020	47	52	2

Table 16: “If a nominee for the U.S. Supreme Court is qualified and has no ethical problems, would U.S. Senators be justified or not justified in voting against that nominee simply because the Senator is from a different political party from the president who made the nomination?,” by party identification, September 2019 and September 2020

Party ID	Poll dates	Justified in voting against the nominee	Not justified in voting against the nominee	NA/Refused
Republican	Sept. 3-13, 2019	20	79	1
Republican	Sept. 8-15, 2020	21	79	1
Independent	Sept. 3-13, 2019	17	81	2
Independent	Sept. 8-15, 2020	17	81	2
Democrat	Sept. 3-13, 2019	21	76	3
Democrat	Sept. 8-15, 2020	24	74	1

Should nominees declare their views on specific cases

There is a longstanding practice of nominees not discussing during the confirmation process specific cases that may come before the Court, or even past decisions. The public is evenly split on whether nominees should declare their positions, and there are modest partisan differences on this.

Table 17: “Should nominees to the Supreme Court be required to publicly declare how they would vote on controversial cases such as gun rights or abortion rights before they are confirmed to the Court?,” September 2020

Poll dates	Should declare positions	Should not be required to declare positions	NA/Refused
Sept. 8-15, 2020	51	48	1

Table 18: “Should nominees to the Supreme Court be required to publicly declare how they would vote on controversial cases such as gun rights or abortion rights before they are confirmed to the Court?,” by party identification, September 2020

Party identification	Should declare positions	Should not be required to declare positions	NA/Refused
Republican	52	47	1
Independent	42	56	2
Democrat	58	41	0

What justices should consider in reaching decisions

The following items were asked in the Marquette Law School Poll’s Supreme Court survey conducted Sept. 8-15, 2020, with a national sample of 1,523 adults.

Despite growing partisan division over appointments to the Court, four-in-five respondents (82%) said justices should ignore the positions of political parties when making decisions, while 18% said they should support one of the parties as part of their decisions.

Relative to that small group pointing to political parties, more respondents, 44%, said the justices should consider public opinion about a case in reaching their decisions, while 55% said they should not consider public opinion.

The practice of following previous opinions of the Court, or stare decisis, has played a significant role in recent confirmation hearings, often focusing on the 1973 decision of Roe v. Wade, but 81% said the justices should overturn previous decisions if a majority believes the case was wrongly decided, while 18% said the Court should follow the previous decision whenever possible.

On holding hearings on Court nominees

In polls in September 2019 and September 2020, respondents were asked about President Barack Obama’s nomination of Merrick Garland to the Court being blocked in 2016 and whether hearings should be held in 2020 if there was a vacancy. The 2020 survey was completed days before the death of Justice Ruth Bader Ginsburg on Sept. 18, 2020.

Table 19: “In February 2016, following the death of Justice Antonin Scalia, Republican Senate Majority Leader Mitch McConnell announced that the Senate would not consider or hold hearings on any nominee President Obama might name during an election year. In March, Obama nominated Judge Merrick Garland to the Supreme Court. The Senate did not hold a hearing and the nomination expired in January 2017. Was not holding a hearing on the nomination the right thing or the wrong thing to do?,” September 2019 and September 2020

Poll dates	Right thing to do	Wrong thing to do	NA/Refused
Sept. 3-13, 2019	26	73	1
Sept. 8-15, 2020	25	73	1

Table 20: “If there is a vacancy on the Supreme Court during the 2020 presidential election year and President Trump nominates someone, what should the Senate do?,” September 2019 and September 2020

Poll dates	Hold hearings	Not hold hearings	NA/Refused
Sept. 3-13, 2019	69	30	1
Sept. 8-15, 2020	67	32	1

Nomination hearings by party identification

In 2019 and 2020, there were sharp partisan differences over the lack of hearings for Garland in 2016. There was not as much of a partisan divide over potential hearings in 2020 (this was asked before Ginsburg’s death).

Table 21: “In February 2016, following the death of Justice Antonin Scalia, Republican Senate Majority Leader Mitch McConnell announced that the Senate would not consider or hold hearings on any nominee President Obama might name during an election year. In March, Obama nominated Judge Merrick Garland to the Supreme Court. The Senate did not hold a hearing and the nomination expired in January 2017. Was not holding a hearing on the nomination the right thing or the wrong thing to do?,” by party identification, September 2019 and September 2020

Party ID	Poll dates	Right thing to do	Wrong thing to do	NA/Refused
Republican	Sept. 3-13, 2019	45	54	1
Republican	Sept. 8-15, 2020	45	54	1
Independent	Sept. 3-13, 2019	26	73	1
Independent	Sept. 8-15, 2020	20	78	2
Democrat	Sept. 3-13, 2019	13	87	0
Democrat	Sept. 8-15, 2020	15	84	1

Table 22: “If there is a vacancy on the Supreme Court during the 2020 presidential election year and President Trump nominates someone, what should the Senate do?,” by party identification, September 2019 and September 2020

Party ID	Poll dates	Hold hearings	Not hold hearings	NA/Refused
Republican	Sept. 3-13, 2019	72	27	0
Republican	Sept. 8-15, 2020	68	31	1
Independent	Sept. 3-13, 2019	73	26	1
Independent	Sept. 8-15, 2020	71	28	1
Democrat	Sept. 3-13, 2019	62	37	0
Democrat	Sept. 8-15, 2020	63	37	0

Perceptions of trends in Court rulings

While few citizens outside the legal profession read Supreme Court decisions, the public does develop an impression of the direction the Court takes over time. Across several topics, Table 19 shows how the public thinks the Court has expanded or reduced the rights of various groups over the past “15 years or so.”

Table 23: Perception of the expansion or reduction of rights for various groups, September 2021

Rights of…	Expanded rights	Reduced rights	Net expanded	Has not changed much either way
LGTB people	77	8	69	15
Campaign donors	39	15	24	46
Minority voters	38	23	15	39
Religious people and groups	33	21	12	45
Gun owners	27	27	0	45
Abortion seekers	23	45	-22	32

About the Marquette Law School Poll

The surveys were conducted with adults nationwide, with samples of 1,000 to 1,500 adults. Interviews were conducted in 2019 and 2020 by the National Opinion Research Center (NORC), using its AmeriSpeak Panel, a national probability sample, with interviews conducted online. In 2021 and 2022, the survey was conducted using the SSRS Opinion Panel, a national probability sample with interviews conducted online. The detailed methodology statement, survey instrument, topline results, and crosstabs for each release are available at https://law.marquette.edu/poll/category/results-and-data/.

The polling dates, sample size, and margin of error for each survey are as follows:

Table 24: Poll dates, sample size, and margin of error for all Marquette Law School Poll nationwide Supreme Court Surveys, 2019-2022

Poll dates	Sample size	Margin of error
Sept. 3-13, 2019	1423	3.5
Sept. 8-15, 2020	1523	3.3
July 16-26, 2021	1010	3.9
Sept. 7-16, 2021	1411	3.4
Nov. 1-10, 2021	1004	3.9
Jan. 10-21, 2022	1000	4.0

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About Kevin Conway

Kevin is the associate director for university communication in the Office of University Relations. Contact Kevin at (414) 288-4745 or kevin.m.conway@marquette.edu.