When a draft opinion reversing Roe v. Wade leaked this week, there was a clear disconnect between public opinion and where the Supreme Court seems to be headed. True, polls have long shown that Americans are conflicted about the morality of abortion and generally favor some restrictions on the procedure. But when it comes to criminalizing abortion or reversing Roe, a strong majority is clearly opposed. And yet the conservative court seems poised not just to gut abortion rights but to do so rapidly, in an opinion dripping with disdain for abortion rights and setting the stage for the unraveling of other constitutional protections.
Strikingly, the draft proclaims an indifference to public opinion. In it, Justice Samuel Alito explains that the court is ill equipped to predict public reaction to its decisions and should not try. The justices’ job, he suggests, is to interpret the Constitution, consequences be damned.
Many contest Justice Alito’s views on the Constitution and question the interpretive approach used in the draft. And the idea of a Supreme Court completely indifferent to public opinion would be new in modern US politics. For years, scholars could credibly claim that the court rarely strayed far from public opinion and faced a serious backlash when it dared to try. This court, Alito suggested, is different — it does not care — and does not have to care about what anyone else thinks.
Historically, the court has hardly been as blasé as Alito suggests. For decades, it was fair to call the Supreme Court the most democratic branch of the government, as legal scholar Jeffrey Rosen has done. Supreme Court justices based their decisions on interpretations of the Constitution, but on a range of issues — from abortion to same-sex marriage and affirmative action — major rulings tended to reflect rather than contradict popular opinion.
It’s possible that things are different now because the court has changed so much. In 1992, the Supreme Court declined an opportunity to reverse Roe and ultimately affirmed it in a case known as Planned Parenthood v. Casey. That 5-4 decision sent the conservative legal movement and antiabortion leaders back to the drawing board. They wanted more influence over who was selected for the federal bench — and more of a guarantee that those justices would do away with Roe when the occasion arose. At the same time, Republicans began to see a reason to pick divisive nominees of this kind. A surefire conservative could excite the base and get voters to the polls. The same could not be said of a consensus pick like Sandra Day O’Connor, who co-authored the joint opinion in Planned Parenthood v. Casey — or a cipher like Harriet Miers, whose 2005 nomination was ultimately scuttled by the conservative legal movement and religious conservatives.
But Justice Alito may have another reason not to care about public reaction. It is just as likely that he and other conservatives on this court think they can do what they like on abortion without bringing about a truly significant reaction. They may feel confident in this belief because of what happened after the court let stand SB8, the Texas law that bans abortion at six weeks and lets anyone sue for at least $10,000 any time that someone performs, aids, or abets an abortion that takes place after that point in time.
SB8 was a huge story — one that prompted unprecedented action from the Justice Department and sizable donations to abortion clinics and abortion funds, and the court’s reputation has certainly taken a hit — but the law did not have major electoral consequences. Many commentators point to the failed re-election bid of then-incumbent Governor Terry McAuliffe of Virginia, who leaned hard on his support for abortion rights, as proof that support for Roe was not a winning issue. That reading of McAuliffe’s loss may be inaccurate — his opponent, Glenn Youngkin, focused on pledges to ban critical race theory in public schools, not on abortion — but it’s nonetheless clear that McAuliffe’s arguments about abortion were not enough to win over voters. If people are angry about what the Supreme Court does on abortion, that anger has not yet translated into specific election results, much less into court reform. It is easy for the conservative Supreme Court majority to say that it doesn’t care about public reaction when so far there has been less backlash than many expected.
There are any number of theories about who leaked the draft of Alito’s opinion in Dobbs v. Jackson Women’s Health Organization, but regardless of that person’s motives, the draft is serving as another trial balloon — and in more ways than one. A truly major backlash would shake up elections in 2022 and 2024. And Justice Alito’s protestations to the contrary, a public outcry could influence how the court views future cases, such as those involving interstate travel for abortion or arguments that abortion itself is unconstitutional.
Because the conservative justices have been telegraphing since December that Roe will be gone, the court has made public indifference almost a self-fulfilling prophecy. Many people cannot help feeling powerless in the face of what appears to be an inevitable outcome. But inaction would be a mistake. The fate of abortion rights in the short term may be obvious, but the long term is a different story.
Justice Alito may argue that the Court is indifferent to popular opinion, but he may change his tune if today’s protests against overturning Roe translate into votes against Republican candidates. Besides, it is foolish to think that the court can have the last word on abortion. In 1973, the year that he wrote the majority opinion in Roe, Justice Harry Blackmun suggested that the Supreme Court could resolve the abortion issue by focusing on constitutional law rather than politics. We should know better than to believe that anymore.
Mary Ziegler is the Daniel P.S. Paul Visiting Professor of Law at Harvard Law School and author of the forthcoming “Dollars for Life: The Anti-Abortion Movement and the Fall of the Republican Establishment.”