November 20, 2018

The Supreme Court Isn’t as Powerful as You Think

“Now that he’s officially taken his seat on the Supreme Court, Brett Kavanaugh has no obvious reason to care what you think. Neither does Sonia Sotomayor, or Samuel Alito, or Ruth Bader Ginsburg. They and their colleagues are justices for life,1 which should in theory give them the freedom to write unpopular opinions.

But Supreme Court history shows that’s not always how it works. In the past, the justices have appeared to bend to popular opinion, in addition to being reined in by other branches of government when they deviate dramatically from the mainstream. That history has a lot to tell us about how much leeway the court’s new majority has when deciding future cases on issues where a conservative ruling might spark a backlash, like abortion. These justices may have an unprecedented opportunity to shift an already conservative court even further to the right, but they’ll likely have to navigate more than just jurisprudence if they want their rulings to last.

The relationship between the court and the rest of us is well-studied by historians and political scientists. And several studies do suggest that the justices respond to public opinion. For example, Peter Enns, a political science professor at Cornell University, found that the court’s ideological tilt tracks with public opinion over time. “We can’t get inside their minds and understand how they’re weighing the potential public reaction,” he said. “But when the public’s perspective is more liberal, we consistently see more liberal Supreme Court decisions, and the reverse is true when the public mood is more conservative. It’s hard to believe that’s just a coincidence.””

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