Breaking the Trend: The Roberts Court's Relationship with Public Opinion

The Supreme Court has long followed societal change, often codifying evolving public sentiment only after it has taken root across the country. However, in Dobbs v. Jackson Women’s Health Organization (2022), the Roberts Court broke from this tradition, overturning Roe v. Wade (1973) despite increasing public support for abortion rights. This shift reveals a new judicial approach that resists social progress rather than responding to it.

Historically, the Court’s decisions have responded to social change

On the issue of abortion, the Supreme Court has decided only after the pro-choice social movements established the practice as commonplace. In advance of Roe v. Wade (1973), the number of legal abortions in the United States increased over 6400% between 1967 and 1972, showing that the practice was clearly established long before Roe was decided. This increase likewise correlated with the founding of pro-choice social organizations like the Association for the Study of Abortion (ASA) and National Association for the Repeal of Abortion Laws (NARAL) in the mid-1960s. 

Roe was decided in the wake of these changes and thus had a chance to consider their arguments. In his majority opinion, Justice Harry Blackmun recognized “a trend toward liberalization of abortion statutes,” including the “adoption, by about one-third of the States, of less stringent laws” than had previously been in effect. Likewise, Justice Blackmun considered the opinions of the American Medical Association, American Public Health Association, and American Bar Association, which the Court acknowledged had undergone a “remarkable shift…influenced by the rapid changes” happening in the country at the time. 

While the Court did not directly consider social organizations in its opinion, the effect of social movements on state legislatures and professional organizations was abundantly clear in the Court’s view. This form of analysis has created similar effects in a wide variety of constitutional issues. For example, the Court has recognized trends away from the death penalty for minors prior to Roper v. Simmons (2005), towards legalizing same-sex marriage prior to Obergefell v. Hodges (2015), and towards formal recognition of transgender people prior to Bostock v. Clayton County (2020). Bolstered by social changes similar to the pro-choice movement, these decisions turned societal progress into law, advancing the country forward.

The causes of the Court’s responsiveness have disappeared

One consistent reason the Supreme Court’s decisions occur after social movements is because of the lengthy process for a case to reach the Court. A typical case will be decided twice before reaching the Supreme Court, first at the District Court level and second at the Court of Appeals level. Each level can take over a year to process, hear oral arguments, and issue an opinion, meaning the Supreme Court often decides cases several years after the issue arises. Roe, for example, was decided 2 years and 10 months after the case was first filed. Likewise, Dobbs was decided more than 4 years after filing, and other cases have taken up to 10 years to decide. This delay typically means that the Supreme Court has time to observe changes in public sentiment and the progress of social movements throughout the case’s lifetime, acknowledging and even incorporating those changes into their opinions. 

While the Court’s decision delay has not changed, several other factors have. For example, justices have long abided by the principle of judicial restraint, meaning they limit their rulings to the most specific, narrow decision possible while avoiding sweeping changes. This principle is in line with the Court’s reactionary nature because a decision following societal trends does not conflict with other governmental branches, whereas a decision bucking such trends would overhaul precedent and state or federal laws. However, judicial restraint is barely present in the modern-day Roberts Court. In the 2021-22 term–the same term Dobbs was decided–the court overhauled major 1st and 2nd Amendment precedents in Kennedy v. Bremerton School District (2022) and New York State Rifle & Pistol Association v. Bruen (2022) respectively. Neither case necessitated such a change, as precedents on each issue were applicable to the cases in question; however, the judges opted to replace existing standards with new “history and tradition” ones to suit their personal methods of interpretation.

These “history and tradition” standards–used in Bremerton, Bruen, and Dobbs alike–are the final reason why the Court is no longer reactionary to social movements. These standards are a form of public meaning originalism, a judicial philosophy where judges use laws from the late 1700s and early 1800s to inform their decisions. While originalism is often upheld as a neutral, objective measure of constitutionality, it also leaves no room for change, as history or social changes beyond 1860 may be dismissed. As such, social movements like the pro-choice movement would be out-of-scope of an originalist decision. Today, more than half of the Roberts Court describes themselves as originalists, making social change practically irrelevant for opinions authored by this conservative majority.

Dobbs has no relation to public sentiment

The acceptance of originalism and rejection of judicial restraint has allowed the Roberts Court to act arbitrarily. Justice Alito’s decision in Dobbs v. Jackson Women’s Health Organization (2022) illustrates this exact phenomenon, as its revocation of abortion rights contradicts trends in both public support and public behavior.

If the Court was reactionary–like it was in Roe–one would expect a drop in public support for abortion to precede Dobbs. However, public polling shows the exact opposite, with public support for abortion steadily increasing since the early 2000s. Likewise, rates of legal abortions have steadily increased both before and after Dobbs. Instead of matching this social progress, Dobbs’ retraction of abortion rights mirrors early-1800s abortion restrictions designed to restrict women’s rights.

The Roberts Court will resist social progress

The justices in the majority in Dobbs support the decision for two reasons. First, the justices argue that using an objective standard for reproductive rights decisions is necessary to prevent judicial activism, where justices can impose their superficial will upon an area of law. Second, the justices argue that the Court must remain independent of societal whims, as such changes can be harmful.

The justices’ claims are not without some merit, particularly the second. Independence has long been a core principle of the judiciary; Alexander Hamilton, for example, wrote in 1788 that “the complete independence of the courts of justice is peculiarly essential” for a constitutional government to function. Hamilton’s claims have proven true–there are certainly examples where judicial reliance on external factors like social movements have led to grave mistakes, such as the court’s endorsement of eugenics in Buck v. Bell (1942). However, these instances are minimal and are outweighed by a need for social progress. As Thomas Jefferson wrote in 1816:

“But I know also, that laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances, institutions must advance also, and keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy, as civilized society to remain ever under the regimen of their barbarous ancestors.”

The “progress of the human mind” that Jefferson speaks of cannot be achieved in a vacuum. Indeed, the greatest progress of the 20th and 21st centuries have come from social movements, not the Supreme Court. Progress in women’s suffrage, civil rights, interracial marriage, abortion rights, and same-sex marriage came as a result of such movements; a Supreme Court that ignores such changes would be ignoring the very fabric of our modern democracy. Thus, it is imperative that the Court continue to recognize social movements for the change they create, remaining reactionary to maintain the progress of American society.

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