If Supreme Court justices were accountable to the people they rule, much of the Court would be going nuts right now.
A Gallup poll taken shortly before the Court overturned Roe v. Wade found that only a quarter of American adults had either a “great deal” or “quite a great deal” of trust in the Court—the lowest ever measured by Gallup. A Marquette poll, which last looked at the Court’s public approval in the weeks after Roe was overturned, found that the Court’s public approval has fallen an astonishing 28 points since Justice Amy Coney Barrett’s confirmation gave Republicans a 6-3 supermajority.
Shortly before Justice Ruth Bader Ginsburg’s death in September 2020 allowed former President Donald Trump to elevate Barrett, the Court’s approval rating was 66 percent in a Marquette poll. As of mid-July, it was 38 percent.
While a new Gallup poll released last week shows the Court has a slightly healthier approval rating of 43 percent, it also shows that public perception of the justices is almost completely polarized along party lines. Republican approval of the Court jumped to 74 percent after the court struck down the constitutional right to abortion, and Democrats’ approval plunged to 13 percent.
Gallup
Research confirms that the court is out of step with the average American. Political researchers Stephen Jesse, Neil Malhotra, and Maya Sen conducted surveys in 2010, 2020, and 2021 on how members of the public believed the most important political cases heard by the Court in those years should have been examined. They found that the Court’s views largely matched those of the public in the two polls conducted before President Donald Trump appointed Barrett.
However, after Barrett’s confirmation gave the Republicans a supermajority, the picture changed dramatically. The three scholars found that “the court is now close to the typical Republican and to the ideological right of roughly three-quarters of all Americans.” Notably, they reached this conclusion even before the Court’s 2022 decision in Dobbs v. Jackson Women’s Health overruled Roe.
Most of this data predates the Court’s ruling in Dobbs, but there is also early evidence that the Court’s anti-abortion ruling has sparked a significant political backlash — one that could potentially change the outcome of the upcoming midterm elections. In Kansas, where Trump won by nearly 15 points in 2020, a ballot initiative that would have repealed abortion rights in the state constitution failed by nearly 18 percentage points, according to the latest vote counts.
For most of 2022, polls predicted a crushing defeat for Democrats in the upcoming midterm elections. After Dobbs, however, Democrats now have a slight lead over the Republican Party in the popular vote. Election prediction site FiveThirtyEight now finds Democrats slightly favored to hold the Senate, despite the fact that the Senate is lopsided in favor of Republicans. And this shift toward the Democratic Party supporting abortion rights appears to have begun immediately after the Dobbs surrender.
It’s clearly too early for Democrats to declare victory and start listing the bills they’ll pass in the second half of President Joe Biden’s first term — a lot can happen between now and November to swing the electorate back to Dobbs’ party . But if the Court’s polls remain in the toilet, and if Democrats do indeed make a strong showing in the upcoming midterm elections, much depends on whether the Court continues to act as if it has a mandate to govern.
Three questions raised by the Court’s grim investigations
All these data raise three important questions. One is whether the Court’s unpopular ruling in Dobbs will affect the outcome of the midterm elections and potentially give Democrats a large enough majority in Congress to re-legalize abortion nationwide. At least some members of the Democratic caucus predict they could pass similar legislation if they win two more seats in the Senate.
If we extend our Democratic majority in the Senate by two votes, and if we hold the House, we can protect abortion rights nationwide through federal law as early as January.
— Elizabeth Warren (@ewarren) August 3, 2022
Currently, Sen. Joe Manchin (D-WV) is the only Democrat to publicly oppose the Women’s Health Protection Act (WHPA), the main bill Democrats are pushing to codify a national abortion right. But Manchin and Sen. Kirsten Sinema (D-AZ) oppose changing the Senate’s filibuster rule, which allows a minority of just 41 senators to block most legislation.
The Senate can change its rules to eliminate the filibuster with a simple majority, but that means Democrats need at least two more votes to achieve that goal, assuming all 48 Democrats who supported filibuster reform in past, vote to prevent the WHPA from filibustering.
Taking at least two spots is far from guaranteed — FiveThirtyEight currently gives less than a 30 percent chance of that happening. But if they do, that raises a second question: whether the Court will react to its dismal polling data and quickly relent. Democrats could pass the WHPA, but the Supreme Court still has an anti-abortion majority that could overturn the law. So, absent Supreme Court reforms that strip the court of much of its authority or change its membership, there is a high risk that this court will sabotage any congressional effort to protect abortion rights — unless it chooses to restrain itself.
In his Dobbs opinion, Justice Samuel Alito said his court will defiantly ignore whether it is hated by the people it governs — “we cannot allow our decisions to be swayed by outside influences, such as concern for the public’s reaction to our work” — but there is at least one very famous example of a key justice withdrawing from an unpopular policy program after it was rejected by voters.
In the early to late 19th century, the Supreme Court began reading the Constitution to allow it to veto economic legislation it disapproved of for ideological reasons. And the Court used this self-given power quite aggressively to reject the New Deal policies favored by President Franklin D. Roosevelt.
Roosevelt then won the 1936 presidential election in one of the most crushing landslides in American history, a result that appears to have scared conservative Justice Owen Roberts into reversing his vote and giving liberals the majority they needed to overturn many of the decisions of Courts that obstructed the New Deal.
Many observers attributed Roberts’ reversal to Roosevelt’s proposal to add additional seats to the Court to dilute the votes of his majority against the New Deal. But the court-packing proposal is unlikely to sway Roberts’ vote. Roosevelt announced this plan in February 1937, weeks after Roberts would vote in a private conference of justices to overturn a seminal conservative decision in West Coast Hotel v. Parrish (1937).
In any case, I wouldn’t bet that one of the five justices who have formed much of their political identity around opposition to Roe will recuse themselves simply because their political party is losing an election. It’s possible that a surprise victory for Democratic abortion rights supporters could scare off some of the justices in the same way that Roberts was scared off in 1937 — especially if Democrats celebrate such a victory with a credible threat to add seats to the Court. But those five judges have already signed an opinion saying they are not affected by “the public’s reaction to our work.”
And that brings us to the third question posed by the Court’s unpopularity: whether continued opposition to the Court and its policy positions can bring the Court back to the middle—not by changing the justices’ opinions, but by Americans changing the justices.
The current majority on the Court is fortified by an anti-democratic constitution
In a seminal 1957 article, political scientist Robert Dahl argued that the Supreme Court would tend to align itself with the nation’s dominant political coalition.
Dahl’s argument is pretty straightforward. From the creation of the court in 1789 until the publication of his article in the 1950s, Dahl found that “on average, one new judge was appointed every twenty-two months.” This meant that a president would typically have to replace two justices for each term they served, and so a president who was determined to overhaul the Court’s ideology “would almost certainly succeed in two terms.”
Thus, even if sitting justices insist on pushing an agenda that is wildly out of step with the public, Dahl argues, they won’t be able to sustain that resistance for long if their political coalition falls out of favor. “Except for short periods of transition when the old union breaks up and the new struggles to take control of the political institutions,” he wrote, “the Supreme Court is inevitably part of the dominant national union.”
However, there are two reasons to doubt whether Dahl’s analysis means the Supreme Court will soon have a pro-abortion majority, even if a majority of the electorate consistently votes Democratic over Republican.
The first reason is very basic: Majorities of the electorate already vote consistently for Democrats over Republicans in national elections, and have done so for about three decades. Democratic presidential candidates have won the popular vote in seven of the last eight presidential elections. The only reason Republicans have held the White House so often in recent decades is that the Electoral College effectively gives them additional, undeserved power.
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