A Gallup poll taken just before the Court overturned Roe v. Wade found that only a quarter of US adults have either a “great deal” or “fairly great” trust in the Court – the lowest ever measured by Gallup. A Marquette poll, which most recently looked at the Court’s public approval in the weeks after Roe was thrown out, found the Court’s public approval has dropped a staggering 28 points since Justice Amy Coney Barrett’s confirmation gave Republican appointees a supermajority 6-3. Just 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% in the Marquette poll. As of mid-July, it is at 38%. While a new Gallup poll released last week shows the Court at a somewhat healthier 43 percent approval rating, it also shows that public perception of the justices has become almost completely polarized along party lines. Republican approval of the Court has risen to 74 percent since the Court struck down the constitutional right to abortion, and Democratic approval has plummeted to 13 percent. Gallup Scholarly research confirms that the Court is wildly out of touch with the average American. Political researchers Stephen Jessee, Neil Malhotra, and Maya Sen conducted surveys in 2010, 2020, and 2021 on how members of the public believed the most politically significant cases the Court pursued during those years should have fallen. They found that the Court’s views largely aligned with public views during the two surveys conducted before President Donald Trump nominated Barrett. After Barrett’s confirmation that gave Republican appointees a supermajority, however, the picture changed dramatically. The three scholars found that “the court now sits close to the typical Republican and to the ideological right of about three-quarters of all Americans.” Notably, they reached this conclusion even before the Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization overturns Roe. Most of this data predates the Court’s decision in Dobbs, but there are also early signs that the Court’s anti-abortion ruling has caused a significant political backlash — something that could potentially change the outcome of the upcoming midterm elections. In Kansas, which Trump won by nearly 15 points in 2020, a ballot initiative that would have overturned the state’s constitutional right to abortion failed by nearly 18 percentage points, according to the latest vote counts. For most of 2022, polls predicted a landslide defeat for Democrats in the upcoming midterms. In the wake of Dobbs, however, Democrats now have a slight lead over the GOP on the general ballot. Election prediction website FiveThirtyEight now finds that Democrats are slightly favored to retain the Senate, despite the fact that the Senate is not disproportionately favoring Republicans. And this shift toward the pro-abortion Democratic Party appears to have begun soon after Dobbs resigned. It’s obviously too early for Democrats to declare victory and begin analyzing the bills they’ll vote on in the second half of President Joe Biden’s first term — a lot could happen between now and November to shift the electorate back to Dobbs party. But if the Court’s polls remain in the toilet and if Democrats outperform in the coming midterms, much depends on whether the Court continues to act as if it has a mandate to govern.
Three questions were raised by the Court’s dismal polls
All these data raise three important questions. One is whether the Court’s unpopular ruling in Dobbs will affect the outcome of the midterms and potentially give Democrats large enough majorities in Congress to re-legalize abortion nationwide. At least some members of the Democratic caucus predict they can pass such legislation if they win two more Senate seats. If we extend our Democratic majority in the Senate by two votes and if we remain in the House, we can protect the right to abortion nationwide through federal law starting in January. — Elizabeth Warren (@ewarren) August 3, 2022 Right now, Sen. Joe Manchin (D-WV) is the only Democrat to publicly oppose the Women’s Health Protection Act (WHPA), the key bill Democrats are pushing to codify a national right to abortion. But Manchin and Sen. Kyrsten Sinema (D-AZ) oppose changing the Senate rule, which allows a minority of just 41 senators to block most legislation. The Senate can change its rules to repeal the filibuster with a simple majority, but that means Democrats need at least two more votes to reach that goal, assuming all 48 Democrats who previously supported filibuster reform vote to prevent WHPA from being a thread. Getting at least two spots is by no means guaranteed—FiveThirtyEight currently gives it less than a 30 percent chance of happening. But if they do, that raises a second question: whether the Court will react to the bleak poll numbers and soften quickly. Democrats could pass the WHPA, but the Supreme Court still has an anti-abortion majority that could strike that law down. So, absent Supreme Court reforms that either strip the Court of much of its power or change its membership, there is a great danger that this Court will sabotage any efforts by Congress to protect abortion rights — unless it chooses to exercise restraint. In the Dobbs opinion, Justice Samuel Alito said his Court would defiantly ignore whether the people it governs hate it — “we cannot allow our decisions to be influenced by any extraneous influences, such as concern about the public’s reaction to the project us”— but there is at least one very famous example of a basic justice being withdrawn from an unpopular political agenda after being repudiated by voters. Beginning in the late 19th century, the Supreme Court began reading the Constitution to allow it to veto economic legislation it rejected on ideological grounds. And the Court used this self-awarded power quite aggressively to strike down the New Deal policies favored by President Franklin Roosevelt. Roosevelt then won the 1936 presidential election in one of the most landslide landslides in American history, a result that appears to have scared conservative Justice Owen Roberts into reversing his vote and giving the liberals the majority they needed to overturn many of the Court decisions that blocked the New Deal. Many observers attribute Roberts’ reversal to Roosevelt’s proposal to add additional seats to the Court in order to dilute his majority’s anti-New Deal votes. But it’s unlikely the court proposal swayed Roberts’ vote. Roosevelt announced this plan in February 1937, weeks after Roberts would have voted during the justices’ private conference 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 built 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 stunning victory for Democratic abortion-rights supporters could spook some of the justices the way Roberts was spooked in 1937 — especially if Democrats celebrate such a victory with a credible threat to add seats to the Court. . But those five justices have already signed an opinion that claims they are unmoved by “the public’s reaction to our work.” And that brings us to the third question raised by the Court’s unpopularity: whether continued opposition to the Court and its policy positions could shift the Court back to the middle—not by the justices changing their minds, but by the Americans to change the judges.
The current majority of the Court has been established by an undemocratic constitution
In an important 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 simple enough. From the creation of the Court in 1789, until the publication of his article in the 1950s, Dahl found that “on average a new judge is appointed every twenty-two months.” This meant that a president would typically have to replace two justices for each term he took office, so a president determined to remake the Court’s ideology “was almost certain to succeed in two terms.” So even if sitting judges insist on pushing an agenda that doesn’t sit well with the public, Dahl argued, they won’t be able to maintain that resistance for long if their political coalition falls out of favor. “Except for short-lived transitional periods where the old alliance breaks up and the new struggles to gain control of political institutions,” he wrote, “the Supreme Court is inevitably part of the dominant national alliance.” There are two reasons, however, to doubt whether Dahl’s analysis means the Supreme Court will have a pro-abortion majority anytime soon, even if the majority of the electorate votes consistently Democratic over Republican. The first reason is very basic: A majority of the electorate already consistently votes Democratic over Republican in national elections, and has done so for nearly 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 essentially gives them extra, unearned power. To be fair, the Democratic Party…