WASHINGTON (CN) — Reflection of public opinion has never been a consistent theme of the Supreme Court across more than two centuries of its existence, but the leak of a draft opinion that would overrule Roe v. Wade has many braced for a diversion with no precedent.
Unlike Congress or the president, the Supreme Court relies on public trust to enforce its rulings but that doesn’t mean all its rulings have always been popular. At different points in its history, the court has both formed public opinion and been shaped by it.
“The court both leads and follows,” Frederick Lawrence, a distinguished lecturer at Georgetown Law, said in a phone interview. “We've seen this over the court history where, for some periods of time, it'll be out of sync with public views but then it ultimately catches up either because it catches up with the public or because it helps form the opinions of the public.”
Take Brown v. Board of Education, for example. In Brown, the justices unanimously overruled Plessy v. Ferguson, which legalized segregated public facilities and set in motion Jim Crow laws. The court’s ruling was ahead of its time, particularly for the South, where integration was not only resisted but outright defied. This was most clear when the Arkansas National Guard attempted to prevent Black students from attending a Little Rock high school, resulting in President Eisenhower deploying federal troops to escort nine students — known as the Little Rock Nine — into the building.
While there was plenty of resistance to Brown, the country ultimately moved in the court’s direction. The ruling coincided with the beginning of the civil rights movement. Only a year after Brown was decided, Rosa Parks' refusal to give up her seat on an Alabama bus sparked the Montgomery bus boycott. Ten years after the ruling, the country would pass the Civil Rights Act.
“I think it's fair to say that in many ways the court helped guide the nation into a different time in which segregation was rejected and in which Jim Crow was ruled illegal and the country moved in a more integrated direction,” Lawrence said.
Conversely, in the 1930s the conservative majority on the court ruled that many of President Franklin D. Roosevelt’s New Deal programs and projects aimed at promoting economic recovery during the Great Depression were unconstitutional. This resulted in Roosevelt considering adding justices to the court. The idea was halted with the famous “switch in time that saved nine” when Justice Owen Roberts shifted sides in West Coast Hotel v. Parrish, upholding the constitutionality of state minimum wage legislation and preventing Roosevelt from adding justices to the court.
In every case where the court’s rulings have diverged from public opinion, the justices either catch up with the country or the country catches up with the justices.
“It's not for the court to just predict where the public is — the court, after all, is interpreting the Constitution and applying the law," Lawrence said. "But it does so in a way that helps shape the public conversation. Traditionally, we think the court can't be out of sync with the public for any great length of time or it begins to lose legitimacy.”
That may not be the case if the justices overrule Roe amid polling that shows most Americans support the right to abortion. In all the historical cases experts have studied, when public opinion diverges from the court’s rulings, the justices were protecting rights instead of taking them away. If Roe was overruled, as is the majority's intent, according to a draft opinion leaked earlier this month, the court would be rescinding a right the public has come to expect for the last 50 years.