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The Supreme Court, Public Opinion and the Fate of Roe

WASHINGTON — The Supreme Court, it has long been said, is rarely far out of step with public opinion.

The court is about to test that conventional wisdom. In the coming weeks it seems ready to dominate Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Such a statement would contradict the views of most Americans, he said recently public opinion polls

A single decision, even if it is a judicial earthquake that would eliminate a constitutional right that has existed for 50 years, would not in itself refute a general trend.

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

The judges themselves have suggested that there is at least a connection between the will of the people and the judicial results.

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

Judge Ruth Bader Ginsburg, who died in 2020, wrote in: a law review article from 1997 that “judges read the papers and are influenced not by the weather of the day, as the distinguished professor of constitutional law Paul Freund once said, but by the climate of the time.”

Judge Sonia Sotomayor said in comments to a law study in 2011 that the court did not take public opinion into account in its rulings. At the same time, she said, the court manages to reflect the public’s opinion.

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

There are books devoted to the subject. An important one, published in 2009 by Barry Friedman, a law professor at New York University, outlined his dissertation in the subtitle. It was called “The Will of the People: How Public Opinion Influenced the Supreme Court and Shaped the Meaning of the Constitution.”

To begin with, Professor Pildes wrote, it is difficult to know what exactly is meant by public opinion. Is it what people tell pollsters? The views of political elites? The actions of elected legislators?

“Public opinion can be very vague,” he said in an interview. “It can be very dependent on how questions are framed.”

And through what mechanism does public opinion, however defined, influence the judges?

“How should the court be limited and by what?” Professor Pildes asked.

A legislative response to curb the power of the court when it strays too far from public opinion is theoretically possible. But even President Franklin D. Roosevelt, at the height of his popularity and with significant majorities in Congress, failed to increase the size of the Supreme Court in response to an ongoing judicial attack on his New Deal programs.

Professor Pildes, who served on the committee President Biden appointed to examine proposals to review the Supreme Courtsaid any new attempt to expand the size of the court faced a steep climb in light of the polarized political environment and Senate filibuster rule.

His article explored another way in which the court can be tied to public opinion.

“The only powerful mechanism for ensuring the court is in line with majority views is the nomination process, which is more politically structured in the United States than in some countries,” he wrote, adding: “If the cycle of appointing judges, the cycles of electoral politics, there would be strong reason to expect the court to continually reflect the dominant views of the president and the senate.”

But at least two phenomena undermine that expectation. First, nominations do not follow election cycles. President Donald J. Trump, aided by the brutal tactics of Senate Republicans, appointed three judges in one term. His most recent predecessors – Barack Obama and George W. Bush – each appointed two judges during their eight-year presidency.

A second reason why the nomination process has proven to be a poor measure of public opinion is the length of time judges spend in court. “Until the end of the sixties, the average length of service was about 15 years”, Found the Biden Commission Report† By contrast, the average tenure of the judges who have left the court since 1970 is about 26 years.

If in recent decades it seemed that the judges were more or less in sync with the public, it might just be because the swing justice just happened to mostly reflect public sentiment.

For much of his 30-year tenure, Judge Anthony M. Kennedy had the deciding vote in many closely divided cases. And Judge Kennedy “may in fact be closest to the median national voter,” Sanford Levinsona law professor at the University of Texas once said.

The court looks very different now. Justice Kennedy retired in 2018 and was replaced by Justice Brett M. Kavanaugh, a conservative who has become the new median member of the court. If there’s any chance that Roe will survive, if only in name, it’s up to him.

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