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?
Roe v. Wade ended the century-old regime of criminalized abortion, invalidating the laws in all but the handful of states where reform had recently been achieved through legislative action or state-court decision.3 Roe is thus often depicted as having exploded like a bombshell on an unprepared and unaccepting public. Further, given the fact that the abortion issue continues to fester and to influence our domestic politics down to the present day, Roe is also often blamed for having caused a “backlash” that, in this account, should serve as a warning to those who would seek judicial resolution of social problems. Indeed, the case has come to many to symbolize the peril of adjudication itself.4 Consider, for example, a colloquy that took place in a federal courtroom in San Francisco in June 2010, at the end of the federal district court trial in the California same-sex marriage case. Theodore Olson, the lawyer representing same-sex couples seeking the right to marry, had just risen to begin his closing argument when the presiding judge, Vaughn Walker, asked him this question:
[I]sn’t the danger, perhaps not to you and perhaps not to your clients, but the danger to the position that you are taking, is not that you’re going to lose this case, either here or at the Court of Appeals or at the Supreme Court, but that you might win it? And, as in other areas where the Supreme Court has ultimately institutionalized something that touches upon highly-sensitive social issues, and taken that issue out of the political realm, that all that has happened is that the forces, the political forces that otherwise have been frustrated, have been generated and built up this pressure, and have, as in a subject matter that I’m sure you’re familiar with, plagued our politics for 30 years? Isn’t the same danger here with this issue?
Mr. Olson responded: “I think the case that you’re referring to has to do with abortion.” “It does, indeed,” said Judge Walker.5
In what follows, I take issue with the conventional accounts both of the context in which Roe v. Wade entered the world and of the decision’s aftermath. But first, some necessary background on our broader subject: how the Supreme Court and the public observe and understand one another.
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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).
- 3Those states were New York, California, Washington, and Alaska. While other states had liberalized their laws to a lesser degree (not sufficiently to meet the test of Roe v. Wade or its companion case, Doe v. Bolton), thirty states retained their nineteenth-century laws, under which abortion was a crime except when necessary to save a pregnant woman’s life.
- 4Examples of these critiques of Roe in popular as well as academic literature are legion: for example, Jeffrey Rosen’s reference to the Court’s “aggressive unilateralism” in his book The Most Democratic Branch: How the Courts Serve America (New York: Oxford University Press, 2006), 93; Benjamin Wittes’s assertion that “[o]ne effect of Roe was to mobilize a permanent constituency for criminalizing abortion–a constituency that has driven much of the southern realignment toward conservatism,” in “Letting Go of Roe,” The Atlantic, January/February 2005, 48, 51; and Cass Sunstein’s charge that “the decision may well have created the Moral Majority, helped defeat the equal rights amendment, and undermined the women’s movement by spurring opposition and demobilizing potential adherents,” in “Three Civil Rights Fallacies,” California Law Review 79 (1991): 766. See generally Linda Greenhouse and Reva B. Siegel, “Before (and After) Roe v. Wade: New Questions About Backlash,” Yale Law Journal 120 (2011): 2028.
- 5Transcript of Record, Perry v. Schwarzenegger, No. C 09-2292-VRW (N.D. Cal. June 16, 2010), 3095. Of course, Judge Walker went on to rule that Proposition 8, which barred same-sex marriage, was unconstitutional; see Perry v. Schwarzenegger, 701 F. Supp. 2d 921 (N.D. Cal. 2010).