The Supreme Court Isn’t Immune to Public Opinion

In theory, U.S. Supreme Court justices conduct their business without regard for what Americans think or whether their rulings might spark public outcry. The reality, a new book finds, is that the high court is not as insulated from popular opinion as commonly believed.

In Majority Opinions, Neil Malhotra, a professor of political economy at Stanford Graduate School of Business, explores the Court’s complex relationship with public opinion. With coauthors Stephen Jessee of the University of Texas at Austin and Maya Sen of Harvard University, he finds that even as the Court has become more politically conservative since 2020, it has moderated its rulings so that they remain in line, more or less, with the opinions of a majority of Americans. After a term marked by controversial rulings, the Court’s justices tend to select cases that allow them to tack back toward the middle. “It’s hard to get into the minds of the justices, but we do show very suggestive evidence that the Court is responding to public opinion,” Malhotra says.

To quantify how Supreme Court decisions respond to outside pressure, Malhotra and his coauthors conducted nationally representative surveys online to measure where Americans stand on specific issues before the Court. “No one has done exercises like this before,” he says. In part, that’s because the Court is supposed to operate above the political fray. Malhotra argues that this assumption overlooks the justices’ important role in policymaking. “It just makes sense to study whether they’re in line with public opinion given how important their rulings are for people’s everyday lives,” he says.

Insights spoke with Malhotra about Majority Opinions and how the Court has reacted to the fallout from the 2022 Dobbs v. Jackson Women’s Health Organization decision, in which it struck down Roe v. Wade.

You call the Dobbs decision a “cautionary tale” for the Supreme Court. Why?

Neil Malhotra: I think it will go down as one of the most important decisions the Supreme Court has ever made, not just on the law, but also on its place in politics. The data is very clear that the approval of the Court went down quite a bit after Dobbs. It has recovered a little bit since then, but generally we don’t see big drops in approval of the Court in small amounts of time. I think the reason is that a lot of the politics of the Court has been framed in the shadow of Roe v. Wade. This is probably the most important abortion decision since Roe v. Wade. It’s therefore understandable that it really affects how people think about the Court as a political institution.

What makes the public reaction to the Court since Dobbs distinct from previous periods?

Neil Malhotra: The Court generally is not top of mind for people, and that’s because a lot of what it does is arcane legal decision-making. But when the Court does enter politics and policymaking in ways that directly affect people’s lives, I think people pay more attention. The period of time covered by the book is characterized by lots of really consequential Supreme Court decisions that were top of mind for a lot of people and that affect their daily lives quite a bit.

It’s interesting, because when Roe v. Wade was decided [in 1973], the reputation of the Court was very different. You had basically a center-right country and the Supreme Court was this center-left institution that was overturning what people wanted. That fed into a conservative narrative that the Court was doing things that people don’t want. Interestingly, now it’s reversed: The Court is considered more right-wing than the public.

You write that the justices are not indifferent to declines in public support. What are some examples of this outside of the Dobbs decision?

Neil Malhotra: The book talks about three famous historical examples. The first is in the New Deal era, which is oftentimes called “the switch in time that saved nine.” After the Supreme Court started knocking down laws related to the New Deal, President Franklin Roosevelt threatened to pack the Court with new members. The Court got scared, and then it switched to supporting the New Deal.

Another example is Brown v. Board of Education (1954). Basically, the South didn’t follow the decision, and the Court felt that was a threat to its legitimacy. And so the Court has another decision, later called Brown II, which ratcheted back a lot of what Brown did. Another example is the death penalty. In Furman v. Georgia (1972), the court says the death penalty is not allowed. Then there’s a big revolt against that among the public, and they then have to go back on that.

The point we make is that political elites are the big mediators. For example, it’s Roosevelt that galvanizes the movement against the Court. In Brown, it was the Southern governors that spurred the movement against the Court. And after Dobbs came out, you see political elites like California Governor Gavin Newsom and others similarly threatening the legitimacy of the court.

What’s the benefit of quantifying these shifts within a single term as opposed to over a larger historical era?

Neil Malhotra: A big advance that this book makes is that it has a benchmark to compare what the Supreme Court is doing and what the opinion of the median American is, so you can see how the Court is moving. We show that a lot of what the Court does, if you look at this granular year-by-year level, is not dependent just on who’s on the Court. We find that, yes, there was a big difference after Ruth Bader Ginsburg died, but actually the Court moves in and out of alignment with public opinion, even when the composition is the same. Even though, overall, the identity of the center of the Court has been the same since Ginsburg left, we still see kind of big changes in what the Court is doing relative to what people want.

Do you think that these shifts are conscious on the part of Supreme Court justices?

Neil Malhotra: The book makes it clear that it’s hard to get into the minds of the justices, but we do show very suggestive evidence that the Court is responding to public opinion. The main argument we make is that the way the Court does this by strategically selecting its docket.

The Supreme Court is one of the only judicial bodies that can pick what it hears. That’s an immense amount of power. We show evidence that the statistical characteristics of the cases it decides to hear do change over time and in ways that you would expect if it’s strategically responding. In 2022, that’s the Dobbs decision, and that’s when you have people protesting outside the justices’ houses and increasing threats against the Court. Then, in the next term, the justices choose interesting cases that allow them to moderate their position. The public is very opposed to race-based affirmative action, and so they strategically select to hear two affirmative action cases.

They also select cases that are extreme cases that the appellate courts have moved forward that allow them to look moderate to the public. For example, they take a case where the appellate court says that a state legislature can overturn election results. The cases they’re selecting are not random, and it is suggestive of intentionality.

The book stops short of making any judgments about whether the Supreme Court should react to public opinion. What do you hope scholars or the Court itself will take from these findings?

Neil Malhotra: This book will be a really important historical time capsule. I think historians wish they had this kind of data to study other really important points in the Court’s history. The other advantage of the book is that it provides data. We actually have the data now we wish we had during other time periods, such as the Warren Court. People make claims that, for example, since the Court became a 6-to-3 conservative court, it’s been consistently very right-wing. We find in the book that that’s not true. It is true that they’re never to the left of public opinion. Yet there are years that it looks more in line with public opinion, and then other years it looks more to the right.