What happens when the Supreme Court is this unpopular?

Protesters rally in front of the US Supreme Court on June 24, when the court overruled Roe v. Wade. | Brandon Bell/Getty Images

Historically, the Court has tended to align with popular sentiment. But what happens when US elections do not produce democratic results?

If Supreme Court justices were accountable to the people they govern, much of the Court would be freaking out right now.

A Gallup poll taken shortly before the Court overruled Roe v. Wade found that only a quarter of US adults have either a “great deal” or “quite a lot” of confidence in the Court — the lowest ever measured by Gallup. A Marquette poll, which most recently looked at public approval of the Court a few weeks after Roe was overruled, found that public approval of the Court has fallen an astonishing 28 points since Justice Amy Coney Barrett’s confirmation gave Republican appointees a 6-3 supermajority.

Shortly before Justice Ruth Bader Ginsburg’s death in September of 2020 allowed former President Donald Trump to elevate Barrett, the Court’s approval rating stood at 66 percent in the Marquette poll. As of mid-July, it is at 38 percent.

While a new Gallup poll released last week shows the Court with a somewhat healthier 43 percent approval rating, it also shows that public perception of the justices has almost completely polarized along partisan lines. Republican approval of the Court spiked to 74 percent since the Court abolished the constitutional right to an abortion, and Democratic approval collapsed to 13 percent.

Gallup

Scholarly research confirms that the Court is wildly out of step with the median American. Political researchers Stephen Jessee, Neil Malhotra, and Maya Sen conducted surveys in 2010, 2020, and 2021 of how members of the public believed the most politically salient cases heard by the Court in those years should have come down. They found that the Court’s views largely aligned with the public’s during the two surveys conducted before President Donald Trump appointed Barrett.

After Barrett’s confirmation gave Republican appointees a supermajority, however, the picture changed dramatically. The three scholars found that “the court is now near the typical Republican and to the ideological right of roughly three quarters of all Americans.” Notably, they reached this conclusion even before the Court’s 2022 decision in Dobbs v. Jackson Women’s Health Organization overruled Roe.

Most of this data precedes the Court’s decision in Dobbs, but there is also early evidence that the Court’s anti-abortion decision triggered a significant political backlash — one that could potentially change the outcome of the upcoming midterm elections. In Kansas, which Trump won by nearly 15 points in 2020, a ballot initiative that would have overturned the state constitution’s right to an abortion failed by almost 18 percentage points, according to the most recent vote tallies.

For most of 2022, polls predicted a crushing defeat for Democrats in the upcoming midterms. In the wake of Dobbs, however, Democrats now have a slight lead over the GOP in the generic ballot. The election forecasting site FiveThirtyEight now finds that Democrats are slightly favored to hold onto the Senate, despite the fact that the Senate is malapportioned to favor Republicans. And this shift toward the pro-abortion-rights Democratic Party appears to have begun right after Dobbs was handed down.

It’s obviously too soon for Democrats to declare victory and start itemizing the bills they will pass in the latter half of President Joe Biden’s first term — plenty could happen between now and November to shift the electorate back to the party of Dobbs. But if the Court’s polls remain in the toilet, and if Democrats do overperform in the upcoming midterms, a great deal hinges on whether the Court continues to act as though it has a mandate to govern.

Three questions raised by the Court’s dismal polls

All of this data raises three important questions. One is whether the Court’s unpopular decision in Dobbs will affect the outcome of the midterms and potentially give Democrats large enough majorities in Congress to re-legalize abortion nationwide. At least some members of the Democratic caucus predict that they can pass such legislation if they gain two more Senate seats.

If we expand our Democratic majority in the Senate by two votes, and if we hold onto the House, we can protect the right to an abortion nationwide through federal law as soon as January.

— Elizabeth Warren (@ewarren) August 3, 2022

At the moment, Sen. Joe Manchin (D-WV) is the only Democrat who publicly opposes the Women’s Health Protection Act (WHPA), the primary bill Democrats are pushing to codify a national right to an abortion. But Manchin and Sen. Kyrsten Sinema (D-AZ) both oppose changing the Senate’s filibuster rule, which allows a minority of only 41 senators to block most legislation.

The Senate can change its rules to abolish the filibuster by a simple majority vote, but that means Democrats need at least two more votes to accomplish this goal, assuming that all 48 Democrats who’ve supported filibuster reform in the past vote to prevent the WHPA from being filibustered.

Picking up at least two seats is far from guaranteed — FiveThirtyEight currently gives it less than a 30 percent chance of happening. But if they do, that raises a second question: whether the Court will react to its grim poll numbers and quickly moderate. Democrats could pass the WHPA, but the Supreme Court still has an anti-abortion majority which could strike that law down. So, absent Supreme Court reforms that either strip the Court of much of its power or change its membership, there is a high risk that this Court would sabotage any effort by Congress to protect abortion rights — unless it chooses to rein itself in.

In his Dobbs opinion, Justice Samuel Alito declared that his Court would defiantly ignore whether it is hated by the people it governs — “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work” — but there is at least one very famous example of a key justice retreating from an unpopular policy agenda after it was repudiated by voters.

Beginning in the late 19th century, the Supreme Court started reading the Constitution to permit it to veto economic legislation that it disapproved of on ideological grounds. And the Court used this self-given power fairly aggressively to strike down New Deal policies favored by President Franklin Roosevelt.

Then Roosevelt won the 1936 presidential election in one of the most overwhelming landslides in American history, a result that appears to have spooked conservative Justice Owen Roberts into flipping his vote and giving liberals the majority they needed to overrule many of the Court’s decisions that hampered the New Deal.

Many observers attribute Roberts’s flip to Roosevelt’s proposal to add additional seats to the Court, in order to dilute the votes of its anti-New Deal majority. But it is unlikely that the court-packing proposal swayed Roberts’s vote. Roosevelt announced that plan in February of 1937, weeks after Roberts would have voted during the justices’ private conference to overrule a seminal conservative decision in West Coast Hotel v. Parrish (1937).

In any event, I wouldn’t bet that one of the five justices who’ve formed much of their political identity around opposition to Roe will back away simply because their political party loses an election. It’s possible that a surprising victory for Democratic abortion-rights supporters could spook some of the justices in much the same way that Roberts was spooked in 1937 — especially if Democrats celebrate such a victory with a credible threat to add seats to the Court. But these five justices have already signed onto an opinion claiming to be unmoved by the “public’s reaction to our work.”

And that brings us to the third question posed by the Court’s unpopularity: whether sustained opposition to the Court and its political stances could shift the Court back to the middle — not by the justices changing their opinions, but by Americans changing the justices.

The Court’s present majority is entrenched by an anti-democratic constitution

In a seminal 1957 article, political scientist Robert Dahl argued that the Supreme Court will tend to align itself with the nation’s dominant political coalition.

Dahl’s argument is fairly straightforward. From the Court’s creation in 1789, until when his article was published in the 1950s, Dahl found that “on the average one new justice has been appointed every twenty-two months.” This meant that a president would typically get to replace two justices for every term they spent in office, and so a president who was determined to remake the Court’s ideology “is almost certain to succeed in two terms.”

Thus, even if incumbent justices insist on pushing an agenda that is wildly out of step with the public, Dahl argued that they won’t be able to maintain that resistance for long if their political coalition falls out of favor. “Except for short-lived transitional periods when the old alliance is disintegrating and the new one is struggling to take control of political institutions,” he wrote, “the Supreme Court is inevitably a part of the dominant national alliance.”

There are two reasons, however, to doubt whether Dahl’s analysis means that the Supreme Court will have a pro-abortion majority anytime soon, even if a majority of the electorate consistently votes for Democrats over Republicans.

The first reason is very basic: A majority of the electorate already votes consistently for Democrats over Republicans in national elections, and has done so for about three decades. Democratic presidential candidates won the popular vote in seven of the last eight presidential elections. The only reason why Republicans have held the White House so often in recent decades is that the Electoral College effectively gives them extra, unearned power.

In fairness, the Democratic Party’s run of bad luck in recent presidential elections may be just that — bad luck. Republican Presidents George W. Bush and Donald Trump would have never seen the inner workings of the White House if their coalitions were not optimized for the Electoral College (Bush also got a big boost from the Supreme Court). But President Barack Obama at least arguably built a Democratic coalition that gave him an advantage in the Electoral College — although if Obama did build a “blue wall” it crumbled very quickly after he was no longer on the ballot.

The problem, however, is even worse in the Senate, where federal judges are confirmed. In the current Senate, the 50 Democratic senators represent about 43 million more people than the 50 Republican senators. Republicans owe their parity with Democrats to the fact that the Senate is malapportioned to effectively give them extra seats. The 25 most populous states contain about 84 percent of the population, and Democratic senators have a 29-21 majority in these states. Meanwhile, Republicans have an identical 29-21 majority in the 25 least populous states — the ones that make up only about 16 percent of the nation.

That advantage stems from the persistent fact that voters in less populous states tend to prefer conservative candidates and have done so for several decades. If senators were chosen in a system where every vote counts equally — rather than one which effectively gives extra Senate seats to sparsely populated states — Democrats would have controlled the Senate since the late 1990s.

The Republican advantage in the Senate was not a factor when Dahl published his paper in 1957. One reason why is that, in the Jim Crow era, the South only had one major party — the Democratic Party — and that gave Democrats a structural advantage in the fight to control the Senate.

But the Republican Party’s structural advantage in the Senate is one of the central features of modern-day American politics. As Stanford political scientist Jonathan Rodden explains, “as you go from the center of cities out through the suburbs and into rural areas, you traverse in a linear fashion from Democratic to Republican places.” So long as this urban/rural divide endures, Republicans will remain favored to control the Senate. And, without control of the Senate, Democrats cannot confirm a justice unless at least some Republicans consent.

All of which is a long way of saying that Democrats cannot regain control of the Court by continuing to win the popular vote by the same margins that they have won by it in the last several decades. To take back the Court, they will need to grow their majority — although the Kansas abortion result suggests that such an outcome is, at least, possible.

The second problem facing Democrats, and pro-abortion-rights Americans more generally, is that justices are now replaced much less often than they were during the period studied by Dahl.

The longest-serving member of the Court, Justice Clarence Thomas, joined the Court in 1991. Since then, 10 justices have left the Court and been replaced. That means that justices are now being replaced less often than once every three years, rather than every 22 months, as Dahl found.

An unexpected vacancy could arrive at any time. But if this pattern holds, it would mean Democrats could have to win several presidential races in a row in order to remake the Court — and that’s assuming that they also control the malapportioned Senate.

The bottom line, in other words, is that — barring a solution such as adding additional seats to the Supreme Court — the Court’s current majority can probably hold out for a fairly long time, regardless of what the voters prefer.