The U.S. Supreme Court’s new majority boldly signaled with twin rulings this week that public opinion would not interfere with conservative plans to shift the nation’s legal landscape.
Rather than ignore the dissonance, Justice Samuel A. Alito Jr., writing for the majority in the abortion decision, attacked the notion that the court should consider the public will. He quoted late chief justice William H. Rehnquist from a previous ruling: “The Judicial Branch derives its legitimacy, not from following public opinion, but from deciding by its best lights.”
“We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey,” Alito continued in the court’s opinion in the case that overturned the constitutional right to abortion. “And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”
The assertion punctuates a shift that has been evident on the high court since the death of Justice Ruth Bader Ginsburg in 2020. The high court during the George W. Bush, Barack Obama and early Donald Trump administrations generally hewed closely to shifting public views on key social issues like same-sex marriage, private sexual conduct, workplace protections for transgender people and popular support for laws and executive orders on immigration and health care.
Maya Sen, a professor of public policy at Harvard University, is one of several academics who have noted the recent shift by studying public polling on issues decided by the high court over the course of more than a decade.
“Up until a couple years ago, it used to be the case that where the court fell was well within the lines of the average Americans’ positions,” Sen said. “Now we are estimating that the court falls more squarely in line with the average Republican, not the average American.”
The shift has created what Democrats view as a political opportunity — to use the court’s recent rulings, particularly around abortion, to mobilize voters in the fall. The entire Democratic establishment, including the White House and Congress, has united around the strategy, making anger at the court’s ruling one of the few clear pitches that the party is deploying for the midterm elections.
“I’m not saying it’s changing the political landscape wholesale but we’re going to see a lot of close races in November, and this is going to keep and put Democrats in office in some of those close races,” said John Anzalone, a pollster for President Biden. “Republicans are going to be on their heels defending this, because they’ve outlawed abortion even in the most extreme cases of rape and incest.”
The Guttmacher Institute estimates that 26 states are likely or certain to ban or restrict abortion now that Roe has been overturned. They include key 2024 presidential battleground states like Arizona, Wisconsin and Michigan, which have pre-Roe bans on abortion in the law that have not been repealed, and Georgia, which has a six-week ban in place. All of those states have competitive Senate contests on the ballot this fall.
The high court’s decision to divert from popular opinion has also fueled calls to change the structure of the court, either by adding more justices or imposing a rotational schedule to regularly change the court’s makeup. Democrats have won the popular vote in seven of the past nine presidential contests — a stretch of more than three decades during which all the present Supreme Court justices were appointed. But Republicans have appointed six of nine current justices.
Former attorney general Eric Holder, an Obama appointee, released a statement Friday calling on reforms to the Supreme Court’s structure “to ensure that the Court serves the interests of the people instead of the interests of an extreme, minority faction.”
“A significant majority of Americans agree that gun safety measures protect the constitutional rights and lives of our people, and that women should have the right to choose,” he wrote. “Yet the Court’s majority — most of whom were nominated by Presidents who lost the popular vote — is forcing through its own particular and peculiar vision of America.”
“The conservatives on the Court are much more conservative than the majority of the American people,” said Erwin Chemerinsky, the dean of the University of California at Berkeley School of Law. “These decisions will have a long-lasting effect on the Court’s legitimacy. It is unclear at this point what that will mean.”
Concern over losing the public trust has repeatedly been voiced by Chief Justice John G. Roberts Jr., a Republican appointee who often shaped the court’s approach before Ginsburg’s death. In a 2007 interview with the Atlantic, he spoke of the “high priority to keep any kind of partisan divide out of the judiciary.” He said it was important to shore up the court’s “legitimacy as an institution.”
Barry Friedman, a New York University law professor who wrote “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution,” has argued that tracking the public mood is a well-worn tradition of the court. Even if individual cases have repeatedly bucked public opinion, he said, “over time in salient cases, the court tends to come into line with public opinion.”
“What has allowed the court to untether itself from public opinion is deep dysfunction in our political system,” he wrote Friday in an email, about the recent shift away from that pattern. “One of the strongest tethers to public opinion is that Congress and the president will discipline the court in some way if it gets too far out of line. There are tools such as jurisdiction stripping, and court packing, and ever since 1937 even the threat of these has had a profound impact on the justices. But these are not credible threats given the electoral makeup of Congress.”
Another result of the shift has been declining public approval of the court, driven largely by a dive in support from Democrats. A January Pew Research Center poll found that 54 percent of Americans had a favorable approval of the court, down from 70 percent in August of 2020, just before the death of Ginsburg. Favorable approval among Democrats was at 46 percent, down from 67 percent in August of 2020.
Fifty-four percent of Americans said the Roe decision should be upheld in a May Washington Post/ABC News poll, while 28 percent believe it should be overturned — a roughly 2-to-1 ratio. The same poll found 36 percent of Americans supported outlawing abortion after the first six or 15 weeks of pregnancy, which is closer to the position Roberts took in Friday’s ruling. He supported allowing states to shorten the window for legal abortion, but objected to fully overturning Roe.
National polling on concealed carry permits is more muddled. In 2004, Gallup found 27 percent of Americans believed “any private citizen” should be able to carry a concealed weapon, while 27 percent believed “only those with a clear need” and 44 percent of Americans believed only safety officials. In 2015, Gallup found that 56 percent of Americans believed America would be safer by allowing more Americans to carry concealed weapons, if they passed a background check and training course. A May poll by Marquette Law School found only 19 percent of Americans support unlicensed concealed carry of handguns.
The high court’s ruling Thursday overturned a New York law that required its citizens to show a specific need to carry a concealed weapon outside of the home. Unlike the abortion ruling, which found that state’s legislatures should determine regulations, the court erected substantial obstacles for states in enforcing gun-control measures.
“The constitutional right to bear arms in public for self-defense is not ‘a second-class right, subject to an entirely different body of rules than the other Bill of Rights guarantees,’” Justice Clarence Thomas wrote in the opinion.
Historically, justices have been wary of using public opinion directly as a rational for their rulings, but that has not stopped them from citing shifting mores. Justice Anthony M. Kennedy’s 2003 decision in Lawrence vs. Texas, which overturned laws against sodomy, noted an “emerging awareness” of protection for the private conduct of consenting adults and a clear trend away from legislatures outlawing the practice and states enforcing those laws.
Similarly, Kennedy noted “a shift in public attitudes toward greater tolerance” of same-sex couples in his 2015 opinion in Obergefell v. Hodges, which recognized a constitutional right for those couples to marry.
Ironically, Rehnquist — the justice whom Alito cited Friday to argue that public opinion should not affect judicial rulings — had a rather contradictory record on the topic. As a law clerk to Justice Robert H. Jackson in the 1950s, he wrote a memo to his boss suggesting that Southern racial segregation should be allowed to continue because it was “not part of the judicial function to thwart public opinion except in extreme cases.”
Once he joined the court, he was asked whether justices should isolate themselves from public opinion. He did not embrace a clean separation, according to a 2005 profile by the Atlantic.
“My answer is that we are not able to do so, and it would probably be unwise to try,” he said.
Ashley Parker contributed to this report.
Roe v. Wade and abortion access in America
What happens next?: The legality of abortion will be left to individual states. That likely will mean 52 percent of women of childbearing age would face new abortion limits. Thirteen states with “trigger bans” will ban abortion within 30 days. Several other states where recent antiabortion legislation has been blocked by the courts are expected to act next.
State legislation: As Republican-led states move to restrict abortion, The Post is tracking legislation across the country on 15-week bans, Texas-style bans, trigger laws and abortion pill bans, as well as Democratic-dominated states that are moving to protect abortion rights enshrined in Roe v. Wade.
How our readers feel: In the hours that followed the ruling in Dobbs v. Jackson Women’s Health Organization, Washington Post readers responded in droves to a callout asking how they felt — and why.