We’re all acquainted with the idea of the loaded question: One so full of presuppositions that the unlucky responder doesn’t stand a chance. A reporter sits down with a local politician, gets him comfortable and sets him up: “When did you stop…?”
The rest, as they say, is history.
Released Oct. 21, a survey from the Marquette University Law School fits that description. The survey asked more than 1,400 adults a battery of questions about public sentiment regarding the U.S. Supreme Court. But it provided little insight into anything about the court itself. Instead, it provided far more insight into how loaded questions can shape public opinion polls.
The poll betrays its underlying bias on at least three major questions before the court in recent years, including the current term. Just a brief look at the framing of the poll’s questions tells you why some progressives, including former Think Progress columnist Ian Millhiser, are not only cheering it on, but making bold predictions about how it might push the Supreme Court to the left.
Ruling out the possibility of any nuance, the poll asks participants to give a gut reaction to hypothetical Supreme Court rulings.
For example, Marquette asks respondents about Roe v. Wade, a decision so poorly reasoned that even pro-abortion rights jurists like Justice Ruth Bader Ginsburg have openly criticized it.
The poll asks whether participants would support a court decision to “Overturn Roe versus Wade, [and] thus strike down the 1973 decision that made abortion legal in all 50 states.” That question is inaccurate and misleading on its face. By the time the Supreme Court ruled in Roe, some 20 states had legalized abortion in some capacity — including New York, Hawaii, Alaska and Washington, which by then allowed abortion on demand.
A more concrete question would have asked about June Medical Services v. Gee, which the Supreme Court is set to hear later this term. In that case, Louisiana abortionists are suing to overturn a state law that requires them to have the ability to admit and care for women at a nearby hospital — which is exactly what the state requires of all doctors working in ambulatory surgical centers, not just abortion clinics.
How about asking respondents this question: “Does a woman seeking an abortion have the same right to competent and quality care involved in other surgical procedures?” We know what most respondents would say to that.
Switching subjects, here’s another question the Marquette poll bungled: Would you support a Supreme Court decision to decide “that a business owner’s religious beliefs or free speech rights can justify refusing some services to gay people?”
This question is an obvious reference to creative professionals like the ones Alliance Defending Freedom represents – such as Masterpiece Cakeshop owner Jack Phillips and Arlene’s Flowers owner Barronelle Stutzman – and it’s miles off the mark. Both Jack and Barronelle gladly serve everybody; there are just some messages they don’t express through their custom artwork. The Supreme Court ruled overwhelmingly in Jack’s favor last year, and Barronelle has asked a second time for the court to grant her relief from a state ruling that threatens to force her into bankruptcy for declining a longtime customer’s request to help celebrate his same-sex wedding.
What if the question were re-worked to the following: “Should the government force a business owner to create custom artwork that violates his or her faith?” Even a slightly more fair-minded rendering of the original question finds that public opinion favors creative professionals like Jack and Barronelle eight percentage points higher than does Marquette’s tilted report.
And finally, while Millhiser may find solace by coupling the Marquette poll with his speculation on Justice Neil Gorsuch’s frame of mind when it comes to the meaning of federal law, his confidence is misplaced.
As my colleague has written previously at The Hill, redefining “sex” to include “gender identity” would not only mean that Americans can no longer rely on what the law says, but open wide the door for biological males to take opportunities from women and girls in athletics and business. It would also force women and girls to forfeit their own privacy in showers, restrooms and maybe even in overnight shelters that serve victims of abuse.
With civil discourse at a low point in our culture, it’s more important than ever that we bring clarity to public debates. And for pollsters, that means eschewing Marquette’s example and steering clear of loaded questions.
Kate Anderson is senior counsel for Alliance Defending Freedom (@AllianceDefends). Jay Hobbs, also with ADF, contributed to this piece.