WASHINGTON — The Supreme Court, it has long been said, is rarely far removed from public opinion.
The court is about to test this conventional wisdom. In the coming weeks, it looks set to overturn Roe v. Wade, the 1973 decision that established a constitutional right to abortion. Such a move would contradict the views of most Americans, according to recent public opinion polls.
A single decision, even if it is a judicial earthquake that would eliminate a constitutional right in force for 50 years, would not be enough on its own to refute a general trend.
But is there really any evidence that public opinion influences the court?
The judges themselves have suggested that there is at least a correlation between popular will and judicial outcomes.
“Rare indeed is the legal victory – in court or legislature – that is not a careful by-product of an emerging social consensus,” Judge Sandra Day O’Connor wrote in “The Majesty of the Law “, published three years before his retirement in 2006. .
Justice Ruth Bader Ginsburg, who died in 2020, wrote in a 1997 law review article that “judges read the newspapers and are affected, not by the weather, as the distinguished constitutional law professor Paul Freund, but by the climate. of the time. »
Judge Sonia Sotomayor, in a speech at a law school in 2011, said the court failed to consider public opinion in its decisions. At the same time, she says, the court manages to reflect the views of the public.
“On the vast majority of cases,” she said, “I bet we’re right with them.”
Books have been devoted to the subject. An important one, published in 2009 by New York University law professor Barry Friedman, states his thesis in its subtitle. It was titled “The Will of the People: How Public Opinion Influenced the Supreme Court and Shaped the Meaning of the Constitution”.
To begin with, writes Professor Pildes, it is difficult to know exactly what is meant by public opinion. Do people tell pollsters? The point of view of political elites? The actions of elected legislators?
“Public opinion can be very nebulous,” he said in an interview. “It can depend a lot on how the questions are framed.”
And what is the mechanism by which public opinion, however defined, influences judges?
“How is the court supposed to be constrained and by what? Professor Pildes asked.
A legislative response to limit the court’s power if it strays too far from public opinion is theoretically possible. But even President Franklin D. Roosevelt, at the height of his popularity and dominating substantial majorities in Congress, failed to increase the size of the Supreme Court in response to a sustained legal attack on his New Deal agendas.
Professor Pildes, who sat on the commission President Biden appointed to explore proposals to overhaul the Supreme Court, said any new effort to expand the size of the court faced a surge in light. the polarized political environment and the filibuster rule of the Senate.
His article explored another way the court could relate to public opinion.
“The only powerful mechanism for ensuring that the court conforms to majority views is the nomination process, which in the United States is more politically structured than in some countries,” he wrote, adding, “If the appointment of judges followed cycles of electoral politics, there would be good reason to expect that the court would continually reflect the prevailing views of the President and the Senate.
But at least two phenomena undermine this expectation. First, appointments do not follow election cycles. President Donald J. Trump, aided by tough tactics from Senate Republicans, appointed three justices in a single term. His most recent predecessors – Barack Obama and George W. Bush – each appointed two judges during their eight years as presidents.
A second reason why the appointment process turns out to be a poor indicator of public opinion is the length of time judges stay on the court. “Until the late 1960s, the average length of service was about 15 years,” the Biden commission report found. “In contrast, the average tenure of judges who have left the Court since 1970 is around 26 years.”
If it seemed over the past few decades that judges were more or less in tune with the public, perhaps that’s simply because the justice swing, coincidentally, mostly reflected public sentiment.
For much of his 30-year tenure, Justice Anthony M. Kennedy held the majority vote in many closely-divided cases. And Justice Kennedy “may actually be the closest to the median national voter,” Sanford Levinson, a law professor at the University of Texas, once said.
The terrain is now very different. Justice Kennedy retired in 2018 and was replaced by Justice Brett M. Kavanaugh, a conservative who became the court’s new midline member. Whether there is a chance of Roe surviving, if only in name, would seem to depend on him.