In front of the steps of the U.S. Supreme Court — nearly a week after the landmark overturning of Roe v. Wade — the president of the National Organization of Women handed out pro-choice placards and pledged to keep fighting for abortion rights.
Christian Nunes also had some strong words about the top court, calling it “compromised” and out of step with public opinion.
“They’re not ruling in favour of the people. They’re ruling in their own moral viewpoints,” Nunes said.
That the recent decisions by the conservative majority court may not be in tune with average Americans is backed up by recent polling and surveys. But those rulings also signal a newly unapologetic and muscular court, willing to buck the national mood.
“They’re using their conservatism in a powerful way and they’re acting like they’re in a hurry,” said Stephen Wermiel, a constitutional law professor at American University Washington College of Law.
“For a long time, we’ve been looking at a conservative tugboat. And now we’re looking at a conservative runaway freight train.”
That freight train has pushed through some strongly conservative-minded decisions over the past weeks. Along with overturning Roe v. Wade, the 6-3 conservative majority effectively expanded gun rights in New York state and ruled that a high school football coach had a constitutional right to pray on the field.
On Thursday, in a blow to the fight against climate change, the court also ruled 6-3 that the Clean Air Act does not give the Environmental Protection Agency (EPA) broad authority to regulate greenhouse gas emissions from power plants.
“I would say that [the conservative bloc] view their job as interpreting the Constitution and that is divorced from from public opinion,” said Amy Howe, a reporter with SCOTUSblog, which covers the court.
Polls show that some of the those decisions have not been in line with public attitudes. For example, a CBS News/YouGov poll found that 59 per cent of Americans disapproved of overturning Roe v. Wade, compared to 41 per cent who approved. As for gun rights, about half of the voters in the 2020 presidential election said gun laws in the U.S. should be made more strict, according to an AP VoteCast survey.
A research paper published this month found that the court has, since 2020, become much more conservative than the public and is now more similar to Republicans in its ideological position on key issues.
“In 2010 and 2020, the court was actually very close to the average American in its decisions,” said Neil Malhotra, a professor of political economy at Stanford University, and one of the three researchers of the study.
During its 2021 and just-ended 2022 terms, the court was “was much more similar to the average Republican.”
This is a very recent phenomenon, he said.
For years, the Supreme Court had leaned conservative, with a 5-4 majority, but some justices were considered more moderate and didn’t always rule along pure conservative ideological lines.
But that has since changed. Today’s court, led by Chief Justice John Roberts, has six conservative judges who are generally more aligned.
“The previous typical justices were not super conservative. And I think what we’re showing … is that there’s a huge difference between a 5-4 conservative majority and a 6-3 conservative super-majority.”
‘Stay in the guardrails’
There’s a view that the top court shouldn’t skew to the majority of public opinion — that it’s the one branch of government, unlike elected policy makers, that should be counter majoritarian and take into account the will of the minority.
But for people to respect a counter-majoritarian institution, they have to respect its wisdom, Malhotra says.
“You have to maintain legitimacy. And one way to maintain legitimacy is to sort of stay in the guardrails of public opinion,” he said, and not always do what the public wants.
“But if it gets kind of too far out of line, then it may not be able to do its job.“
Timothy Johnson, a University of Minnesota law professor whose books include Oral Arguments and Decision Making on the U.S. Supreme Court, says there was huge public backlash, particularly in the South, when the court overturned Plessy v. Ferguson — an 1896 ruling that had upheld racial segregation — with its 1954 unanimous decision in Brown v. Board of Education of Topeka.
The court, then led by the liberal Earl Warren, “was vilified,” Johnson said.
It also made the unpopular decision to protect people who were being called to testify before the House of Un-American Activities Committee, to name people who were alleged communists.
But by the end of the 1950s, the Warren court started retrenching and issuing more conservative decisions on civil liberties and civil rights “to try to purchase back some of its political capital,” Johnson said.
Time will tell whether the current court, like Warren’s, decides it has spent all its political capital and reins itself in, or “whether it stays down this conservative path,” he said.
“If I were a betting man, it would be on the latter … they can do whatever they want and nobody can stop them.”
Johnson says, even at the height of the Warren court’s liberalism, there were some moderate voices.
As for the conservative William Rehnquist’s court, which preceded Roberts’s, that too had moderate conservative judges like Anthony Kennedy and Sandra Day O’Connor.
“There was always sort of this centrist voice and there was more than one of them on a bench. Right now, the one real centrist voice who’s left is Chief Justice Roberts,” he said.
Roberts is a generally reliable conservative vote, but sometimes votes with the liberal bloc and has said the chief justice has a “particular obligation to try to achieve consensus.”
He had tried to reach a compromise on Roe v. Wade — voting not to overturn but instead allow Mississippi, the state that brought the abortion case to the court, to ban abortion after 15 weeks.
“The chief justice very much cares about the court’s institutional standing and it’s probably lined to public opinion of the court,” said Howe, who has also taught Supreme Court litigation at Stanford Law School and Harvard Law School.
But Roberts still has only one vote, meaning, he “is not really in a position anymore to try to keep the court taking a more incremental approach,” she said.