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Flouting public opinion by overturning Roe, the Supreme Court could be risking its legitimacy

A police officer stood guard as protesters marched past Supreme Court Justice Brett Kavanaugh's home in Chevy Chase, Md., on June 8.Nathan Howard/Getty

WASHINGTON — As his conservative colleagues overturned Roe v. Wade last month, Chief Justice John Roberts warned that their dramatic decision would be “a serious jolt to the legal system.”

But he wasn’t talking about the loss of rights for Americans — he meant a threat to the future of the Supreme Court itself.

The court’s final weeks of opinions last month marked a pivotal moment in the institution’s history, as a new conservative majority of justices illustrated their willingness to shake the public with decisions overturning long-established precedent and flouting public opinion. The court’s aggressive new direction will test whether it can maintain its legitimacy in the eyes of Americans at a time when polling shows trust in the court falling precipitously.

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The Dobbs v. Jackson Women’s Health Organization abortion case, as well as decisions dramatically expanding gun rights and curtailing the Environmental Protection Agency’s authority to regulate greenhouse gases, are likely only the beginning for this relatively new and young majority of conservative justices. And their lifetime appointments leave little immediate recourse to a public that may feel increasingly alienated by their agenda.

“Structurally, we’re really screwed,” said Gerald Rosenberg, a professor emeritus from the University of Chicago Law School who wrote a book on how the Supreme Courts decisions have largely tracked public opinion over its history.

At rare times in the court’s history, it has taken controversial and polarizing stands, Rosenberg said, often leading to periods of societal tumult that don’t bode well for this court’s future.

The 1857 Dred Scott decision ruled slaves could not be citizens and argued the federal government could not curtail the spread of slavery in the states, fanning the flames that led to the Civil War. In the 1930s, the court blocked President Franklin D. Roosevelt’s wildly popular New Deal measures, until he won a landslide reelection with sweeping majorities in 1936 and threatened to expand the court. That led a pivotal justice to reverse course and back Roosevelt’s agenda to stave off the push to add more justices in what became known as “the switch in time that saved nine.” And in Brown v. Board of Education, the court in 1954ended the unconstitutional practice of school segregation despite widespread animosity from white Southerners, who largely ignored the ruling’s tenets until the civil rights movement pushed Congress to enshrine it into law 10 years later.

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In each case, Americans met the court’s departure from mainstream trends, for good or for ill, with an eventual course correction. But today, the electoral system and thus the judiciary have become less responsive to public opinion, as blue voters clustered on the coasts have less say in presidential elections as well as in the Senate.

Yet the court’s conservative justices — other than Roberts reveled in their insulation from public opinion in the Dobbs decision.

“It is time to heed the Constitution and return the issue of abortion to the people’s elected representatives,” Justice Samuel Alito wrote for the majority. “That is what the Constitution and the rule of law demand.”

It’s a stance that many in the conservative movement are happy to see them take, despite Roberts’s warning of the decision’s impact in his concurring opinion that would have upheld Mississippi’s abortion ban after 15 weeks without overturning Roe.

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“That’s the new mantra — the court doesn’t care,” said Josh Blackman, a law professor at South Texas College of Law Houston and member of the conservative legal organization the Federalist Society. “The biggest break [from convention] of Dobbs is, ‘We don’t care about public opinion.’ . . . Once you separate from that, it’s a Rubicon you don’t uncross.”

Polls show a clear majority do not support the Supreme Court’s recent actions and many have been expressing their frustration in person, including protesting individual justices at the court building and even outside their homes. Last month, an armed man was arrested near Justice Brett Kavanaugh’s home, prompting Congress to increase justices’ security.

Americans have an even dimmer view of Congress. But public trust has been uniquely vital to the court’s functioning from its inception. Founding Father Alexander Hamilton noted that although the president controlled the “sword” of the military and Congress controlled the federal “purse,” the judiciary had no way to enforce its decisions other than Americans’ faith in them. “It may truly be said to have neither force nor will, but merely judgment,” Hamilton wrote in Federalist Paper 78.

For centuries, that made the court very cautious about alienating the public with rulings that could be interpreted as overtly political or aggressive, with Roberts in particular in recent years attempting to avoid sweeping rulings that could make the justices appear politicized.

But the new majority seemingly subscribes to the Federalist Society mantra that the court’s legitimacy derives from a different place, one entrenched in the group’s philosophy that cases should be decided based only on a strict reading of the text of the Constitution, which usually leads to conservative-celebrated outcomes.

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“The court now, I think, views its integrity through a different lens, that the integrity of the court is not playing to opinion polls but is doing its job by the Constitution,” said Carrie Severino, president of the Judicial Crisis Network, a conservative political group that pushes to put more conservative justices on the bench.

In theory, if voters are unsatisfied with the current court, their recourse is the ballot box. Americans could elect a president who would nominate pro-abortion rights justices, a Senate that would confirm them, and elected officials who would enshrine abortion rights into law.

But Rosenberg and other law professors fear that option is nearly out of reach after decades of population shifts, gerrymandering, and political polarization. Two Republicans who won the presidency despite losing the national popular vote have appointed five of the nine justices now on the court. Similarly in the Senate, Democrats and Republicans each control 50 seats despite Democrats representing 40 million more Americans.

“We have an institutional system that is entirely out of whack with who Americans are, and that is a recipe for disaster,” Rosenberg said.

While the Supreme Court has always been political given that its appointments were determined by politicians, its power has increased in recent decades in part because Congress has become increasingly dysfunctional, said Michael Klarman, a Harvard law school professor.

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“Why in the world would you give . . . five or six unelected, relatively older, relatively affluent, very well-educated people with extremist political views . . . control over national abortion policy, national gun control policy, national affirmative action policy, national campaign finance reform?” Klarman said. “That’s a crazy way to run the system; we would never design it that way.”

Several Democratic lawmakers have proposals to address that imbalance, including a bill from Senator Ed Markey of Massachusetts to add four seats on the bench, which would give Democratic appointees a court majority if enacted while President Biden is in office.

But many Democrats are hesitant to take such a dramatic step, even as they continue to stew over President Barack Obama being denied his chance to put a justice on the court by then-Senate majority leader Mitch McConnell.

“I have an abiding concern about Democrats that we tend to rush to solutions before we’ve explained to the public the need for a change of that magnitude,” said Senator Sheldon Whitehouse of Rhode Island, who prefers his own legislation to improve court ethics and transparency. “You have to bring the public along with you first.”

Markey, however, suggested the court will help that process along.

“There is an inevitability to the continued judicial outrages that are going to be decided by this Supreme Court, and if a bully steals your lunch money and you don’t do anything, they’re coming back for more next time,” Markey said.

In the meantime, multiple Democratic state attorneys general, including Wisconsin’s and Michigan’s, are posing a more immediate challenge to the court’s legitimacy by vowing not to enforce abortion bans in their states.

When people lose faith in the court, they stop listening to its decisions, said Nancy Scherer, a professor at Wellesley College, who has researched perceptions of legitimacy in the court. “Since we rely on people to voluntarily obey the law, that’s a terrible situation to be in.”


Tal Kopan can be reached at tal.kopan@globe.com. Follow her on Twitter @talkopan.