Pedestrians walk by the U.S. Supreme Court building in July 1981, in Washington, D.C.
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3 times the Supreme Court went against public opinion
If the Supreme Court ends the constitutional right to an abortion, it wouldn't be the first time it issued an unpopular ruling.
Kaila Philo
Government and Political Institutions Reporter
This week, a 90-page bombshell rocked American politics: A leaked draft of the Supreme Court's decision to overturn Roe v. Wade by the end of the term.
One of the big questions circulating the talk shows and social media is: Does this decision signal a new age for the high court — one in which politics, rather than public opinion, reigns supreme? Actually, this wouldn't be a first — although it would be unusual for the court to do so when considering how it has ruled over the past few generations.
A court that usually goes with the flow — when people are watching
"The Supreme Court, on the whole, has been remarkably good about following public opinion in high-profile cases," Michael J. Nelson, a political scientist at Penn State University, told Grid. That's because cases that are considered high profile tend to be politically fractious; otherwise, the public doesn't pay much attention to the court.
"The general public doesn't pay a lot of attention to a lot of things the Supreme Court decides," Armand Derfner, a civil rights lawyer who has tried cases before the Supreme Court since 1978, said in a phone call. He argued that when the court decides on cases about torture in a foreign country, for example, or monopolies by giant corporations, "most of the general public doesn't care."
But the general public definitely has opinions on this case. According to polling by the Pew Research Center, about 6 in 10 Americans think abortion should be legal "in all or most cases," while 4 in 10 believe it should be "illegal in all or most cases." And while it's definitely proved to be a polarizing issue, the numbers have moved toward favoring abortion rights.
Other key moments when the Supreme Court has disregarded popular opinion
In 1984, Gregory Lee Johnson burned an American flag in front of Dallas City Hall to protest the Reagan administration. He was given jail time and a $2,000 fine; a Texas appellate court reversed the conviction on the grounds that his act was protected by the First Amendment.
The case eventually made its way to the Supreme Court, where a 5-4 vote ruled that flag-burning counted as freedom of expression. The majority of the American public did not respond well to the decision.
The response to that decision was "absolutely overwhelming," said Lucas Powe, a professor of government at the University of Texas and a Supreme Court historian. "The court knew that the decision would be unpopular," Powe explained. "It's just that First Amendment jurisprudence caused five of them to think that was the right way to go," said Powe. In response, Congress passed the Flag Protection Act, making it illegal to knowingly show "contempt upon any flag of the United States" to bypass the high court's decision, but the court reaffirmed Johnson when it struck the act a year later in United States v. Eichman.
It was a polarizing issue in the court as well, said Powe. Chief Justice William Rehnquist, who voted against the original decision, was beside himself. "[His] dissent in the flag-burning case is really over the top," he noted. "He was really angry about it." Flag-burning as an expression was "the equivalent of an inarticulate grunt or roar," Rehnquist wrote, "that, it seems fair to say, is most likely to be indulged […] to antagonize others."
Another decision with a similar response was issued in 1966: Four consolidated cases were presented to the Supreme Court when it decided Miranda v. Arizona, asking whether the Fifth Amendment protected suspects from incriminating themselves during a police interrogation.
Again, the court ruled 5-4 in favor of the defendants, concluding law enforcement officials must advise suspects of their right to remain silent and request an attorney — what eventually became what we know as "Miranda Rights."
It's since become known as one of the most controversial cases of Earl Warren's tenure as chief justice, partly due to worries that the decision would hamstring law enforcement: A Gallup poll at the time found 94 percent of Americans agreed the police should be required to inform a suspect of their rights, but when asked whether confessions obtained without informing suspects should be admissible in trial, 45 percent said they should while 49 percent said they should not.
But the Supreme Court decision that likely elicited some of strongest response among the U.S. public, said Powe, was Swann v. Charlotte-Mecklenburg Board of Education, in which the court unanimously upheld integration programs that bused Black students to white public schools.
"The white communities were close to 100 percent opposed to it, and the Black communities were basically split 50-50," Powe explained. "But the constituency for busing was the NAACP and white liberals who had their children in private schools."
While recalling these cases, Derfner noted that the unpopularity of these decisions is up for question. "A lot of people got very upset if their kids were about to be bused," he said, "but by and large, the nation was sort of waiting to see what happened."
He noted that much of the controversy of these cases was driven by vocal minorities. "Don't be fooled by the noise," he continued. "That noise is oftentimes made by a small group of people."
Is this a sign of court decisions to come?
The question floating around social media and pundit circles is — Will it become more normal for the Supreme Court to go against popular opinion? Nelson said that's fairly likely.
A 2021 study found that Americans, by and large, have become more liberal since the 1990s, but six of the Supreme Court justices are staunch conservatives. "We're going to start to see a court that's deciding cases out of step with public opinion, and that's something we haven't really seen in a long time in this country," Nelson said.
With the court stacked heavily in the GOP's favor, Nelson expects more decisions to come that will cause an uproar with the American public.
He also emphasized a principle that's been repeated more often these days: The Supreme Court is a political entity. "The people who are able to get appointed to the Supreme Court are people who are able to secure a political appointment from the president and be confirmed in a political process," he said. "Of course, the people who make it through that process are going to reflect this sort of worldview."
Thanks to Alicia Benjamin for copy editing this article.
Kaila Philo is a reporter at Grid where she focuses on the U.S. government and political institutions.
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