The Supreme Court will soon hand down decisions on the census citizenship question and on gerrymandering. Recent state laws also may prompt it to revisit previous rulings on abortion. All are politically divisive issues at a time when support for the court has been on a decline, along with other political institutions. What might that mean for the court’s decision-making? University of Illinois political science professor Alicia Uribe-McGuire has studied the issue and discussed it with News Bureau social sciences editor Craig Chamberlain.
What are the practical reasons that justices might need to be concerned about public opinion or politics? Or about the court’s relative popularity?
The design of the Supreme Court and federal judiciary, with lifetime appointments, was intended to ensure that one branch of government was removed from swings in public opinion. However, in their design, the founders also gave the judiciary very little power. The power to implement their decisions lies with the president. Their budget comes from Congress. As a result, the judiciary has an interest in ensuring that these branches are happy.
Or, rather than trying to make these individual branches happy, the judiciary can aim to keep the public happy, since both Congress and the president are elected by the people and it is politically risky to go against the judiciary if the people like them. The public’s approval of the Supreme Court is generally linked with its vulnerability. If the Supreme Court is popular, it is viewed as safer from attacks from Congress or the president.
What are some historical examples that demonstrate that?
Probably the most dramatic example of this came in the Reconstruction era in Ex Parte McCardle (1869). In this case, the Supreme Court was hearing a habeas corpus petition from a publisher who had printed articles that were critical of Reconstruction efforts. At the time, the Supreme Court was fairly unpopular, and Congress suspended the court’s jurisdiction in the case. The Supreme Court allowed this suspension, finding it under Congress’ powers to do so. It is hard to imagine that the Supreme Court today would allow something like this.
Other examples of the Supreme Court bending to political pressure are demonstrated by middle-of-the-road decisions of recent decades. Examples include Planned Parenthood v. Casey (1992), an abortion case, and National Federation of Independent Businesses v. Sebelius (2012), which addressed key provisions of Obamacare. In both of these cases, decided during presidential election years, the public was polarized on the question and each side had a list of what they wanted out of the Supreme Court. The court issued decisions that failed to give either side exactly what they wanted, but gave each side something they wanted.
Commentators suggest the conservative majority now on the court is destined to produce certain decisions. But what have we seen so far? And what factors might alter its course?
Probably the most talked-about cases include abortion and gay rights. Commentators expect that the solid conservative majority is likely to overturn Roe v. Wade (1973) and at the very least halt any further progress on gay rights. A few things are important to remember.
First, the Supreme Court has had a conservative majority for more than 30 years. Second, the justices are smart. It is unlikely they will pounce immediately on these prominent cases. Instead, we will likely see a more conservative bent in other areas before they even touch these. For example, in recent years, the Supreme Court has expanded religious rights, deciding cases that have expanded our understanding of the Free Expression Clause.
Third, the changes that we see might not be as overt as everyone expects. A number of states are currently passing laws that are intended to put the Supreme Court in the position of deciding to overturn Roe. However, the court might instead choose to avoid the question, allowing the states and lower courts to resolve the issues as they see fit, which would effectively overturn Roe without explicitly doing so.
Finally, returning to the idea of the Supreme Court’s concern over public opinon, the new swing justice, Chief Justice John Roberts, seems to care more about this than most. This suggests that we might see more of the middle-of-the-road decisions that we have seen in the past, rather than solidly conservative ones.