What Happens When SCOTUS is This Unpopular?

In his Dobbs opinion, Justice Samuel Alito declared that his Court would defiantly ignore whether it is hated by the people it governs — “we cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work” — but there is at least one very famous example of a key justice retreating from an unpopular policy agenda after it was repudiated by voters.

Beginning in the late 19th century, the Supreme Court started reading the Constitution to permit it to veto economic legislation that it disapproved of on ideological grounds. And the Court used this self-given power fairly aggressively to strike down New Deal policies favored by President Franklin Roosevelt.

Then Roosevelt won the 1936 presidential election in one of the most overwhelming landslides in American history, a result that appears to have spooked conservative Justice Owen Roberts into flipping his vote and giving liberals the majority they needed to overrule many of the Court’s decisions that hampered the New Deal.

Many observers attribute Roberts’s flip to Roosevelt’s proposal to add additional seats to the Court, in order to dilute the votes of its anti-New Deal majority. But it is unlikely that the court-packing proposal swayed Roberts’s vote. Roosevelt announced that plan in February 1937, weeks after Roberts would have voted during the justices’ private conference to overrule a seminal conservative decision in West Coast Hotel v. Parrish (1937).

In any event, I wouldn’t bet that one of the five justices who’ve formed much of their political identity around opposition to Roe will back away simply because their political party loses an election. It’s possible that a surprising victory for Democratic abortion rights supporters could spook some of the justices in much the same way that Roberts was spooked in 1937 — especially if Democrats celebrate such a victory with a credible threat to add seats to the Court. But these five justices have already signed on to an opinion claiming to be unmoved by the “public’s reaction to our work.”

And that brings us to the third question posed by the Court’s unpopularity: whether sustained opposition to the Court and its political stances could shift the Court back to the middle — not by the justices changing their opinions, but by Americans changing the justices.