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The Supreme Court, Public Opinion and the Fate of Roe


WASHINGTON — The Supreme Court, it has long been said, seldom gets very far out of step with public opinion.

The court is about to check that conventional wisdom. In the approaching weeks, it seems poised to overrule Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Such a ruling can be at odds with the views of most Americans, in line with recent public opinion polls.

A single decision, even when it’s a judicial earthquake that will eliminate a constitutional right that’s been in place for 50 years, wouldn’t by itself disprove a general trend.

But is there indeed evidence that public opinion influences the court?

The justices themselves have suggested that there may be a minimum of a correlation between the favored will and judicial outcomes.

“Rare indeed is the legal victory — in court or legislature — that isn’t a careful byproduct of an emerging social consensus,” Justice Sandra Day O’Connor wrote in “The Majesty of the Law,” published three years before her retirement in 2006.

Justice Ruth Bader Ginsburg, who died in 2020, wrote in a 1997 law review article that “judges do read the newspapers and are affected, not by the weather of the day, as distinguished constitutional law professor Paul Freund once said, but by the climate of the era.”

Justice Sonia Sotomayor, in remarks at a law school in 2011, said that the court didn’t take public opinion under consideration in its rulings. At the identical time, she said, the court manages to reflect the general public’s views.

“On the overwhelming majority of cases,” she said, “I bet we’re right with them.”

Books have been dedicated to the topic. A crucial one, published in 2009 by Barry Friedman, a law professor at Recent York University, set out its thesis in its subtitle. It was called “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Structure.”

For starters, Professor Pildes wrote, it is tough to know just what is supposed by public opinion. Is it what people tell pollsters? The views of political elites? The actions of elected lawmakers?

“Public opinion will be very nebulous,” he said in an interview. “It might probably be very depending on how questions are framed.”

And what’s the mechanism through which public opinion, nonetheless defined, influences the justices?

“How is the court alleged to be constrained and by what?” Professor Pildes asked.

A legislative response to curb the facility of the court if it veers too removed from public opinion is theoretically possible. But even President Franklin D. Roosevelt, at the peak of his popularity and commanding substantial majorities in Congress, didn’t increase the dimensions of the Supreme Court in response to a sustained judicial assault on his Recent Deal programs.

Professor Pildes, who served on the commission President Biden appointed to explore proposals to overhaul the Supreme Court, said that any recent effort to expand the dimensions of the court faced a steep uphill climb in light of the polarized political environment and the Senate’s filibuster rule.

His article explored one other way through which the court might be tethered to public opinion.

“The one powerful mechanism for ensuring that the court is consistent with majoritarian views is the appointments process, which in america is more politically structured than in some countries,” he wrote, adding, “If the cycle of appointing justices tracked the cycles of electoral politics, there can be strong reason to expect the court continually to reflect the dominant views of the president and Senate.”

But a minimum of two phenomena undermine that expectation. First, appointments don’t track electoral cycles. President Donald J. Trump, aided by the hardball tactics of Senate Republicans, appointed three justices in a single term. His most up-to-date predecessors — Barack Obama and George W. Bush — appointed two justices each over their eight-year presidencies.

A second reason the appointment process seems to be a poor proxy for public opinion is the length of time justices now stay on the court. “Up until the late Sixties, the common term of service was around 15 years,” the Biden commission’s report found. “In contrast, the common tenure of the justices who’ve left the court since 1970 has been roughly 26 years.”

If it seemed in recent many years that the justices were roughly in sync with the general public, that will simply have been since the swing justice, by happenstance, mostly reflected public sentiment.

For much of his 30-year tenure, Justice Anthony M. Kennedy held the controlling vote in lots of closely divided cases. And Justice Kennedy “may actually be closest to the median national voter,” Sanford Levinson, a law professor on the University of Texas, once said.

The court now looks very different. Justice Kennedy retired in 2018 and was replaced by Justice Brett M. Kavanaugh, a conservative who has change into the brand new median member of the court. If there may be a probability that Roe survives, even when in name only, it could appear to be as much as him.

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