Late last month, shortly after the U.S. Supreme Court officially handed down its Dobbs v. Jackson decision overturning Roe v. Wade, I covered how polls showed that fewer Americans supported or had confidence in the Court, which pro-abortion, Democratic politicians used to their advantage in talking points. Public support for the Court hardly matters, though, as the Court should not be considering public opinion when making its decisions.
At the time, Curt Levey, a constitutional law attorney and the president of the Committee for Justice, provided comments to Townhall about whether the Court should bother caring about public opinion. "The last thing we want is a Supreme Court that is looking for popular approval. The Constitution and the Supreme Court’s role in enforcing it are meant to be a check on majority opinion – for example, protecting unpopular speech, the rights of criminal defendants hated by the public, and the like. The Left is very focused right now on polls showing that people disagree with this or that Supreme Court decision," he said in part.
The polls continue to show such trends. Axios' Julia Shapero on Sunday highlighted the results of a Yahoo News/YouGov poll, conducted July 8-July 11, with 1,672 adults.
A plurality, at 47 percent, believe the Supreme Court has "too much power," while 37 percent said it has "about the right amount."
In what seems like an incredibly obvious finding, Shapero points out that the breakdown is significantly different among political party and views on abortion:
- The opinion breaks down along party lines. While 72% of Democrats agreed that the Supreme Court holds too much power, only 21% of Republicans held the same opinion.
- It also breaks down along views on abortion. Among those who believe abortion should be legal, 69% view the high court as too powerful. Of those who believe it should be illegal, 21% agree.
Given that Democratic members of Congress, including those in leadership, like Rep. Hakeem Jeffries (D-NY), emphasize how they view the court as "illegitimate," it's no wonder their supporters would adopt such a position. Earlier on Monday, Democrats also doubled down on their efforts to pack the Supreme Court, despite how polling continuously shows that Americans aren't in favor.
Polls don't all reflect bad news, though. A poll from Harvard CAPS/Harris conducted last month found that overall, 63 percent of respondents consider the Supreme Court to be legitimate, which includes 54 percent of Democratic respondents.
It's not merely Democratic politicians, but the mainstream media as well. On Friday, the Boston Globe's Tal Kopan posted a Twitter thread promoting her story from Thursday night warning about how "Flouting public opinion by overturning Roe, the Supreme Court could be risking its legitimacy."
As Hamilton wrote in Federalist Paper 78, the court's only power is Americans' faith in them.
— Tal Kopan (@TalKopan) July 15, 2022
Rarely in the court's history has it disregarded public opinion in its rulings.
Here's what those instances taught us about what comes next: https://t.co/KnufGjiImG
Also I encourage folks to read the story, ofc.
— Tal Kopan (@TalKopan) July 15, 2022
From her headline alone, Kopan is incorrect. While polls do consistently show that respondents were opposed to overturning Roe v. Wade, they likely did not know what it entailed. For when asked another way, whether they wanted states to decide their own abortion laws, which is what the Dobbs decision did in overturning Roe, respondents are much more likely to be in favor.
Early on in her piece Kopan writes:
The court’s final weeks of opinions last month marked a pivotal moment in the institution’s history, as a new conservative majority of justices illustrated their willingness to shake the public with decisions overturning long-established precedent and flouting public opinion. The court’s aggressive new direction will test whether it can maintain its legitimacy in the eyes of Americans at a time when polling shows trust in the court falling precipitously.
The Dobbs v. Jackson Women’s Health Organization abortion case, as well as decisions dramatically expanding gun rights and curtailing the Environmental Protection Agency’s authority to regulate greenhouse gases, are likely only the beginning for this relatively new and young majority of conservative justices. And their lifetime appointments leave little immediate recourse to a public that may feel increasingly alienated by their agenda.
But again, who really cares? The Court certainly shouldn't. Public opinion is for the other branches of government to worry about. Further, Kopan's narrative is astounding, as she refers to the Court's role of interpreting laws to amount to an "agenda" that people feel "alienated" by.
When it comes to that "recourse," it's worth reminding time and again that elections matter. Democratic voters in 2016 didn't get that memo, though. Exit polling data showed that while a majority of Trump voters said the Supreme Court vacancy left by the late Justice Antonin Scalia mattered was "the most important factor," while a majority of Clinton voters said that it was "not a factor at all."
Later on, Kopan acknowledges that sense of "recourse," somewhat, but then continues her doomsday narrative:
In theory, if voters are unsatisfied with the current court, their recourse is the ballot box. Americans could elect a president who would nominate pro-abortion rights justices, a Senate that would confirm them, and elected officials who would enshrine abortion rights into law.
But Rosenberg and other law professors fear that option is nearly out of reach after decades of population shifts, gerrymandering, and political polarization. Two Republicans who won the presidency despite losing the national popular vote have appointed five of the nine justices now on the court. Similarly in the Senate, Democrats and Republicans each control 50 seats despite Democrats representing 40 million more Americans.
Most of her lengthy and tiring piece is quoting experts, including those who dump all over the Supreme Court. For instance, Gerald Rosenberg, described as "a professor emeritus from the University of Chicago Law School who wrote a book on how the Supreme Court’s decisions have largely tracked public opinion over its history," is quoted as saying "[s]tructurally, we’re really screwed."
Kopan isn't some nobody, but rather serves as the outlet's deputy D.C. bureau chief. Her tweets were sufficiently ratioed, with the first tweet in the thread receiving almost 700 replies, many taking issue. Of the 151 retweets that tweet received, 143 were quoted retweets, which also took issue.
It even found its way onto the List.
??uh??oh?? https://t.co/5zbYmqmHLX pic.twitter.com/u5ZUQVYyPy
— The List (@ListComesForAll) July 15, 2022
A more recent piece includes hailing the Vice President, who has been given and has bungled a series of issues, by writing "Kamala Harris steps into the spotlight on abortion rights, an opportunity for her and the movement."