Talking Points

Is SCOTUS ready to cross public opinion on Roe?

Americans don't want to overturn Roe v. Wade. 

A new Washington Post/ABC News poll indicates that 60 percent of U.S. adults want to see the abortion-rights precedent upheld, and a slightly higher number — 65 percent — believe that Texas' new anti-abortion law should be overturned. The results of the new poll aren't an outlier: Pew Research has been tracking the question for nearly 30 years and has consistently found that roughly two-thirds of Americans oppose completely undoing Roe

Two-thirds of Supreme Court justices might have other ideas. While the Texas law appears to be in trouble — mostly because it was written to evade judicial scrutiny — justices next month will hear a Mississippi case in which the state explicitly seeks to overturn Roe's precedent. Given how much abortion has loomed over Supreme Court nomination battles in recent decades, it's easy to conclude the court's 6-3 conservative supermajority was manufactured specifically for this purpose. 

Conservatives will and do argue that Roe is a bad precedent and should be overturned. But if that ends up being the case, justices will be going against another longstanding, albeit informal precedent: that the court doesn't usually get too far away from public opinion on big cases that upend society's status quo.

For example, the court's unanimous desegregation ruling in 1954's Brown v. Board of Education sparked "massive resistance" in the South, but it had broad support from the public. A Gallup poll taken at the time showed 55 percent of Americans approved the ruling while just 40 percent disapproved. Historian Michael Klarman has noted that Justice Felix Frankfurter speculated the ruling wouldn't have been possible just a decade earlier, before public opinion had begun to crystallize against segregation. Similarly, the court's decision to uphold gay marriage in 2015 came after a generation-long rise to majority support among the public. 

"There's this idea that the court will stand in opposition to public opinion," Michael J. Nelson, a Penn State political science professor, said last year. "But in reality, the court's decisions tend to be pretty congruent with public opinion."

The court's job isn't to look at the polls. Traditionally, though, the Supreme Court has often reflected public sentiment. (Indeed, Chief Justice John Roberts has spent much of his career constructing limited rulings with an eye on the court's public legitimacy.) Overturning Roe would mark a major departure from that approach. If that happens, we'll see what it means for the court's already fragile standing.