The relationship between the Supreme Court and public opinion remains ambiguous, despite efforts over many years by scholars both of the Court and of mass behavior to decipher it. Certainly Supreme Court Justices live in the world, and are propelled by the political system to their life-tenured positions. And certainly the Court, over time, appears to align itself with the broadly defined public mood. But the mechanism by which this occurs–the process by which the Court and the public engage one another in a highly attenuated dialogue–remains obscure. The Court’s 1973 abortion decision, Roe v. Wade, offers a case in point. As the country began to reconsider the wisdom of the nineteenth-century criminalization of abortion, which voices did the Justices hear and to which did they respond? Probing beneath the surface of the public response to Roe serves to highlight rather than solve the puzzle.
Students of judicial behavior strive to understand how public opinion reaches and influences the Supreme Court, while scholars of mass behavior study how Supreme Court decisions shape public perceptions of the Court and the issues it addresses. These overlapping inquiries reflect the constant dialogue between the Court and the public. It is an imperfect and sometimes inaudible dialogue, to be sure: one side seemingly remote and theoretically insulated from external influence, the other only episodically attentive and often woefully uninformed. It is a highly attenuated dialogue, filtered through, and at times distorted by, the intervening structures of the media, electoral politics, and the legal system itself.1 It is dynamic, not static, fluctuating over time and across substantive areas of the Court’s and the public’s concern.
Clearly, “public opinion and the Supreme Court” is a big subject, the topic of a steady flow of books and articles, most of which acknowledge the ambiguity at the heart of the relationship. In this essay, I offer as a case study the Court’s decision in 1973 to constitutionalize a woman’s right to abortion. My focus is not the doctrinal basis of that decision, Roe v. Wade,2 but rather the puzzle of what preceded it and what followed from it. How did the majority in Roe– seven middle-aged to elderly men, including three of President Richard M. Nixon’s four appointees to the Court–understand the abortion issue in 1973? How did a ruling that did not at first appear particularly polarizing come to symbolize conflict not only over abortion but over the role of the Supreme Court itself? And what does the Court’s encounter with abortion, and the public’s response to Roe v. Wade, tell us about the broader subject of the Supreme Court and public opinion?
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- 1See, for example, Dan M. Kahan, “Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law,” Harvard Law Review 125 (2011): 29. Kahan notes “the role that mediating institutions play in bridging the work of the Court and public consciousness of it.”
- 2Roe v. Wade, 410 U.S. 113 (1973).