A claim often made in the pages of the New York Times, Washington Post, and other organs of progressive opinion is that the Supreme Court, through its recent decisions, is out of step with public opinion, and is deeply unpopular as a result. Is this really true, or is the Court merely out of step with the progressive doctrines of those who write for and read these particular publications? The latter assessment is more accurate, judging by public opinion polls that portray a sharply polarized public on the key issues the Court addresses, from abortion to voting rights to affirmative action. Any decision the Court takes on these issues is likely to be rejected by half the voters—but accepted by the other half.
The Supreme Court has found itself out of step with public opinion from time to time over the course of its history, occasionally from a conservative direction, far more often due to liberal decisions that inflamed conservatives and moderates across the country. In the 1930s, a conservative Court struck down several popular New Deal programs and found itself in the crosshairs of attacks from President Franklin Roosevelt. The Warren Court, in place from 1953 to 1969, was controversial for its many liberal decisions, which changed the course of national politics in profound ways. The school desegregation decisions, beginning with Brown v. Board of Education in 1954, caused an uproar across the South, where several states sought to block or disobey federal court orders. It was said at the time that the governors and legislators in those states were “undermining the rule of law” by refusing to implement those decisions. Eventually they relented, but under great pressure.
The Court’s decisions in the 1960s defending the publication of obscene materials and banning prayer in public schools were bitterly opposed by most voters and led some to call for the impeachment of Chief Justice Earl Warren. Once again, those who defended these decisions urged critics to “obey the law” and “uphold the rule of law.” The Court’s reapportionment decisions were nearly as unpopular, especially in southern states. Those rulings called for every state legislature across the country to redraw legislative and congressional districts to conform with the Court’s new “one man, one vote” policy requiring every district to be roughly equal in population. Many said that the Court had gone too far in entering such a highly politicized area.
The opposition called forth by these decisions paled in comparison to the violent confrontations that occurred as a result of the Court’s decisions to require schools to bus students across district lines for purposes of racial integration. Violent demonstrations took place in Boston, school buses were bombed outside Detroit, and heated protests broke out in cities across the country where cross-district and metropolitan-wide “busing” was ordered by the federal courts as fallout from the Brown decision. These were an inept and counterproductive series of decisions by the Court; they provoked not only violence but also “white flight” from urban schools, leaving these schools more segregated than before. There is no telling what might have happened if the Court had persisted in this line of decisions. In 1974, however, in a case involving Detroit, the Court wisely backed off from the metropolitan-wide busing edicts that had caused such tumult across the country.
In more recent decades, the Court has frequently acted in defiance of public opinion. That was certainly true in the Roe decision in 1973, which overturned widely accepted abortion laws in nearly every state. Many voters around the country refused to accept it as a legitimate constitutional decision. This was also true, albeit to a lesser extent, in regard to the Court’s decisions overturning laws against homosexual conduct and homosexual marriages. These were not popular rulings, though they were generally accepted by those who opposed them.
Much of the present controversy has revolved around the abortion issue—a divisive subject from the day the Court handed down Roe in 1973 to the day it overturned it, with the Dobbs ruling, last summer. Since the 1980s, the Republican Party has included a plank in its platform calling for Roe’s reversal, while Democrats have called for upholding and extending it. According to Gallup polls, the public has long been divided on the issue, with most voters rejecting extreme approaches on either side while adopting nuanced views that abortion should be legal under some circumstances but illegal in others. The Court in 1973 declared (in opposition to public opinion) that abortion was a constitutional right but decided last year (in the face of divided opinion) to throw the issue back to the states, where it will be negotiated and resolved through elections. This was controversial, as it was bound to be, but it is not clear why the Dobbs decision should be attacked as “undemocratic” or contrary to public opinion.
The Court is currently reviewing its approach to the use of race as a criterion in college admissions in cases involving Harvard University and the University of North Carolina. In the past, the justices have said that race may be used as a “factor” in admissions but not as a “criterion,” though experience has shown that its use as a mere factor can easily slide into a criterion for those making the decisions. On this subject, public opinion is easy to discern. According to a recent poll conducted by the Pew Research Center, 74 percent of Americans oppose the use of racial factors in admission (82 percent oppose the use of gender). This is the case both among Republicans and Democrats, as well as among conservatives and liberals. Voters have returned the same verdict at various times in the past when the issue has appeared on a state or local ballot. If the Court really is obliged to follow public opinion, then there is no question where it should come down on this issue.
Legislative and congressional districting is another hot-button issue now under review by the Court. Here, again, the public is divided, mostly between the two political parties that have obvious stakes in the issues at play. Alabama’s Republican legislature redrew the state’s congressional districts after the 2020 election with a map that looks much like the ones put in play after the Censuses of 2000 and 2010. The map has six districts with majorities of Republican voters and one with a majority of minority (black) voters. Several plaintiffs, associated with the Democratic Party, sued, claiming that the map violates the rights of minority voters under the Court’s past interpretations of the Voting Rights Act. They argue that a second district can be drawn with a black majority if the excess voters from one district are re-allocated to another one. The state contends that such a district can be drawn only by using race as the guiding criterion, an approach that the Court has rejected in the past. The Court, in effect, must decide whether to keep the map intact or to allocate another seat to Democrats by taking it away from Republicans. No one can say how public opinion would rule on this subject, since the two parties are battling over possession of a seat in Congress.
This is true as well of the Court’s 2019 decision in Rucho v. Common Cause, in which it decided that partisan districting decisions for congressional and legislative seats are beyond the purview of the federal judiciary. Common Cause, in alliance with the Democratic Party, challenged North Carolina’s congressional district maps (drawn by a Republican legislature), which allocated ten seats to Republicans and three to Democrats, even though the state was evenly divided between the two parties. A majority of the Court reasoned, contrary to some precedents, that the map had been determined as a result of elections and partisan clashes in the state, and that no fair standard existed by which to adjudicate the question. The Court therefore concluded that partisan districting controversies were political questions, beyond the reach of the federal judiciary; these decisions would have to be worked out in the political arena, where voters would have the final say. This instinct seems to be a pattern with this Court: taking issues off its plate and giving them to the political branches to decide.
Along these lines, there is the decision handed down last year in the case of West Virginia v. Environmental Protection Agency, where the Court threw another issue back into Congress’s lap. In this case, the EPA proposed to regulate carbon dioxide emissions from power plants as part of its goal of limiting climate change. West Virginia, and other plaintiffs, claimed that Congress had not authorized the EPA to regulate CO2 emissions—so the EPA’s ruling was illegal, in addition to being very costly. Here, the Supreme Court agreed with the plaintiffs: if the EPA wishes to regulate in this area, it must first gain authorization from Congress. This decision may impose an unfortunate limitation on the power of the EPA to enforce its climate change doctrines—but it is not an “undemocratic” limitation, unless that term is defined in Orwellian terms, to the effect that a democratic solution is undemocratic.
By and large, conservatives responded to the liberal decisions of the Warren Court and its successors by viewing the Supreme Court through a political lens. They did not encourage defiance of Court decisions; nor, except in rare cases, did they declare the Court to be illegitimate, as many Democrats and progressives are now doing in response to rulings going against their wishes. Instead, conservatives encouraged voters to elect presidents who promised to appoint judges and justices with different views on a host of subjects, including the role of the Supreme Court in a popular system of government. That conservative campaign took a long time—four or five decades, at least, with numerous disappointments along the way—but it proved eventually successful when Donald Trump won the 2016 election, in considerable part thanks to his promise to appoint conservative justices. Trump followed through on his pledge, appointing Justices Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett, which gave conservatives their present 6–3 majority and an opportunity to reshape Supreme Court jurisprudence in several areas. The Court’s approach can be criticized from many directions, but it is especially wrongheaded to call it “undemocratic,” since its main thrust is to leave as many decisions as possible in the hands of American voters.
Photo by Probal Rashid/LightRocket via Getty Images