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Why The Supreme Court Probably Doesn’t Care What Most Americans Think About Abortion Or Gun Rights

The Supreme Court is more conservative than it’s been in almost a century. ​​Its new term begins today, and by next June, when the term ends, Americans might finally understand what that means. Public opinion of the court is already at a record low after the court allowed a strict abortion law to go into effect in Texas in early September. Now, the justices are preparing to hear the court’s first major gun rights case since 2010 as well as a case on the future of abortion in the U.S. Both cases could result in decisions that are far more extreme than most Americans want. 

In the past, a desire to preserve the court’s apolitical reputation kept the justices from straying too far from public opinion. That could happen again — in fact, Chief Justice John Roberts has so far proven remarkably adept at producing decisions that protect the court’s reputation and that are often portrayed as more moderate and mainstream than they really are. 

This term, though, the other conservative justices might be fine with taking a very public right turn. Neither expanding gun rights nor overturning Roe v. Wade would be popular, yet the court is considering both — a sign of how conservative it has already become. The question now is whether the risk of a backlash is enough to keep the conservative majority from, say, overturning Roe in an election year. 

“The justices are plainly conscious of public attitudes toward the court,” said Lawrence Baum, a political science professor at Ohio State University. “But that’s only one consideration for the justices and not necessarily the most important one — particularly on issues like abortion or gun rights where they may have intense personal preferences about the right outcome.”


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The justices are already entering the term with mixed reviews from the general public. A Marquette University Law School poll conducted in September found that only 49 percent of Americans approved of the court, down from 60 percent just a year earlier. A Gallup poll conducted in September found a similar drop: Only 40 percent of U.S. adults approved of the court, down from 53 percent a year earlier. According to Gallup, a majority (53 percent) of U.S. adults now disapprove of the way the court is handling its job.

In theory, the justices should have no reason to watch their polling numbers. Our system is actually designed that way: Federal judges have life tenure in part to insulate them from the vagaries of politics. But research suggests that the justices are influenced by what Americans think, at least to a certain extent. For example, several studies have found that the Supreme Court’s ideological tilt tracks with public opinion over time, which is unlikely to be coincidental. And Tom Clark, a political scientist at Emory University, found in a separate review of congressional bills that when Congress introduced more bills designed to curb the court, the justices struck down fewer laws. According to Clark, that suggests that the court saw the bills as a signal from Congress that they were going too far, even though the bills were unlikely to pass.

Earlier this year, President Biden arguably introduced his own version of a court-curbing bill, in the form of a commission to study expanding the Supreme Court. But the conservatives don’t have a lot to fear there, at least for now, because the commission seems unlikely to recommend big changes. And even if it did, GOP senators won’t support court reform, which means Democrats would have to abolish the filibuster to make that happen — currently a no-go in the Senate. All in all, the conservative justices don't have a lot of reason to see Biden's move as a threat.

Blue grid background with a person cut off by the frame at the torso holding a sign that says “Abortion is healthcare”, filtered with a blue filter.

related: How The Fight Over Abortion Access Might Affect The 2022 Midterms Read more. »

It's also possible that Supreme Court justices mostly care about their reputation among a select group of Americans. Baum and Neal Devins, a professor of law and government at the College of William & Mary, have argued that Supreme Court justices are more interested in how they’re regarded by elites. 

This is significant for understanding why the conservative justices’ behavior has become more predictably right-wing. Baum and Devins argue that as elites have grown more politically polarized, the justices’ partisan tendencies have hardened as well. In other words, the people influencing the conservative justices' thoughts are probably much more right-wing than the public at large. On top of that, some of the justices may be willing to risk backlash for the outcome they believe is correct. “Is legitimacy something that’s enough to get a justice to move away from something [he or she] strongly feels?” Baum told me. With the possible exception of Roberts, who is particularly focused on the court’s image, Baum doesn’t think the public’s views will be enough to sway a justice who cares deeply about the issue they’re deciding.

And this might be right. On one hand, it’s not obvious that a single unpopular ruling -- even if it’s high-profile -- would be enough to sow widespread doubt in the Supreme Court’s legitimacy. Take the outcome in Bush v. Gore, where a divided Supreme Court, split along partisan lines, effectively handed the presidency to George W. Bush. The ruling was intensely controversial at the time, but it appears to have had little lasting impact on the court’s image. And although it might be hard to imagine, the same could be true of a decision that overturns or reshapes Roe — particularly if the justices  merely limit the constitutional right to abortion, rather than eliminate it. 

But the question of how a highly conservative Supreme Court majority will navigate public opinion isn’t going away. And it becomes even more relevant if the conservatives maintain control of the court for years or even decades.

“In the past, even if the court was trending conservative overall, it wasn’t like the conservatives always won and the liberals always lost,” said Michael Salamone, a political science professor at Washington State University who studies the Supreme Court and public opinion. “Now it’s looking like conservative victories are going to be a lot more consistent and a lot more far-reaching.”

In that sense, this new term might be a turning point — and not just because of the importance of the cases or the risk of a backlash to an individual decision. The next few months might be the beginning of a new era in which the conservative justices move sharply away from where most Americans stand on major issues, and dare politicians to do something about it.


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Amelia Thomson-DeVeaux is a senior writer for FiveThirtyEight.

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