This story was first published by In These Times.
Protesters took to the streets outside of the Supreme Court of the United States on Monday night, following a report from Politico that the court intends to overturn Roe v. Wade, a development that would eradicate the federal right to abortion. People across the country are calling for mobilizations to continue, citing the devastation and death that would certainly follow such a ruling.
SCOTUS confirmed on Tuesday that the leaked text is accurate but says that it is only a draft. The final decision, which may still be a month or more out, can be revised, and justices may even change their vote in the process, though that does not seem likely.
Whether Roe is overturned, or whether the new decision is enforced, depends on how people respond now. Polls have consistently shown that a strong majority of Americans support abortion rights. But opinion has little influence on the system if people are not mobilized and putting serious pressure on those in power.
“The majority support access to abortion but can’t see themselves as a majority without demonstrations,” professor and activist Keeanga-Yamahtta Taylor proclaimed on Twitter. “The autocrats in SCOTUS can’t feel their illegitimacy without protests.”
The alarming, if predictable, attack on reproductive rights comes from a profoundly anti-democratic institution that has only drifted further from public opinion in recent decades.
Time and again, history has shown that the Supreme Court does, in fact, respond to the court of public opinion.
Conservatives currently have a 6 – 3 supermajority on the court, even though Republicans have only won the popular vote nationally once in the last 30 years. And that victory was George W. Bush’s second term, which only happened because the Supreme Court intervened on his behalf in the 2000 election. Ketanji Brown Jackson’s ascension to the Supreme Court marks a long-overdue historic victory for diversity on the nation’s highest judicial body. However, it will not affect the fundamental balance of power on the court.
This disconnect between the will of the people and the makeup of the court has led to a growing crisis of legitimacy, with the court’s approval rating recently dropping to an all-time low, according to Gallup.
Yet, while the institution itself is undemocratic, it is not immune to public opinion and mass protest. It is easy to forget that ordinary people, working together through social movements, have agency to impact the court. Time and again, history has shown that the Supreme Court does, in fact, respond to the court of public opinion.
This was confirmed by none other than Justice Sandra Day O’Connor, who wrote that “real change, when it comes, stems principally from attitudinal shifts in the population at large. Rare indeed is the legal victory — in court or legislature — that is not a careful by-product of an emerging social consensus.”
What is left out of her astute observation is how that consensus is formed. Through sustained and often disruptive protest, social movements play an instrumental role in shaping public opinion and what is seen as politically possible.
If dissenters are able to “muster strong support, then, and only then, the court tends to fall into line with the dissenting opinion,” writes Barry Freidman, who teaches law at New York University. “For this reason, social movements play an enormous role in shaping public constitutional understanding.”
In the 1930s, a conservative Supreme Court regularly struck down President Franklin D. Roosevelt’s New Deal programs. Roosevelt’s subsequent threats to pack the court are often credited as the decisive factor in pushing the justices to reverse course. However, his threats would not have been able to break the logjam without the backing of a strong majority of the population, which in 1936 delivered Roosevelt one of the most lopsided electoral victories in U.S. history.
But there was more at play than this widespread public support for Roosevelt’s ambitious agenda. Nearly half a million workers shut down industry across the country in an unprecedented wave of sit-down strikes that would likely have factored into the court’s about face.
As Justice Owen J. Roberts, who was the swing vote on the court at that time, admitted years later, “it is difficult to see how the Court could have resisted the popular urge” for change.
The same dynamic can be seen decades later as the court moved right after Nixon began to reshape the bench. In 1971, the Supreme Court allowed for the publication of the Pentagon Papers, which the Nixon administration had tried to block. This stinging rebuke came in the immediate wake of the largest protests in U.S. history, which had helped solidify public opinion firmly against the Vietnam War.
In what antiwar organizers dubbed the Spring Offensive, half a million people rallied in Washington — and tens of thousands blocked streets and bridges — over a tumultuous two-week period. War veterans even targeted the Supreme Court with civil disobedience, calling on the justices to rule the war illegal. In the end, the government launched an unprecedented crackdown. Troops were deployed to Washington, D.C. and police swept up some 13,000 people in the largest mass arrest in American history.
Over the next few years, with four Nixon appointees on the bench, the court ruled against sex discrimination and decided Roe v. Wade. But Roe did not come out of nowhere. It followed a series of cases that expanded gender equality and reproductive freedom and had majority support at the time.
This sea change in women’s rights followed a “sexual revolution which has cast the problem of abortion into the forefront of religious, medical, and legal thought,” wrote Justice Tom Clark, who served on the Supreme Court until 1967. “In my day at the bar, all discussion of abortion was taboo.”
That taboo was broken by a powerful feminist movement that put its concerns on the national agenda with a wave of confrontational and creative direct actions, and shifted the Overton window in the process. In fact, even most Catholics at the time believed decisions about pregnancies were best left to women and their doctors.
As the culture shifted on marriage equality thanks to savvy organizing and litigation, the long-hostile court fell into line with public opinion.
Similarly, the issue of same-sex marriage was deeply unpopular and politically unthinkable until surprisingly recently. In a major blow that reflected widespread discrimination against the LGBTQ community at the time, the Supreme Court upheld Georgia’s law criminalizing sodomy in 1986. A decade later, the Senate overwhelmingly passed the Defense of Marriage Act, which President Bill Clinton approvingly signed into law. And leaders of the Democratic Party, including Barack Obama and Joe Biden, would not touch the issue until after polls in 2011 showed that more than 50% of Americans approved of same-sex marriage for the first time.
That dramatic shift in public consciousness was the product of the LGBTQ rights movement, which had built considerable power through decades of struggle. As the culture shifted thanks to savvy organizing and litigation, the long-hostile court fell into line with public opinion. It struck down sodomy laws across the country in 2003, and finally supported marriage equality in 2015 — making it the final domino to fall.
Even in the Trump era, during which he appointed three justices, the seemingly inevitable conservative revolution on the court did not come to pass. There were many times where the justices voted as expected, particularly on cases relating to the carceral system and labor. However, there were also important exceptions on issues around which there were historic mobilizations or public opinion was clear.
Justice Neil Gorsuch wrote the majority decisions in cases ruling that the Civil Rights Act protects gay and transgender workers from discrimination and that the National Collegiate Athletic Association is violating antitrust law by not paying student athletes. But over the last term, according to David Cole, the ACLU’s national legal director, Kavanaugh and Barrett “most often sided with the three liberals in nonunanimous cases.”
The court in turn blocked Trump’s attempt to end the Obama-era Deferred Action for Childhood Arrivals program — protecting some 800,000 young undocumented immigrants from deportation — defended the Affordable Care Act and refused to invalidate millions of swing state votes in the 2020 election.
While the justices would never admit to being influenced by the unprecedented protests surrounding them, as Justice Benjamin Cardozo once said, “the great tides and currents which engulf the rest of men, do not turn aside in their course and pass judges by.”
After joining the court, Justice William Rehnquist also acknowledged that justices are not as immune to the influence of popular movements as many assume. When asked whether those on the bench are able “to isolate themselves from the pressures of public opinion,” he recalled responding that “we are not able to do so, and it would probably be unwise to try.”
It was only after the courageous efforts of countless civil rights campaigns — where participants risked life and limb — that desegregation began to become a reality in this country.
However, public pressure can cut both ways and reveal the court’s impotence. Following the decision in Brown v. Board of Education, Black students faced violence from racist white mobs when they attempted to desegregate schools, and some schools shut down entirely to avoid integration. This backlash effectively stopped desegregation in its tracks for almost a decade. By 1963, just 1% of black students attended schools with whites in the South.
It was only after the courageous efforts of the Little Rock Nine, the March Against Fear led by James Meredith, and countless other civil rights campaigns — where participants risked life and limb — that desegregation began to become a reality in this country. This hard-won progress was sadly short-lived. As the movement declined, the court ruled against busing in Detroit in 1974, seriously undermining desegregation efforts nationwide. In his powerful dissent, Justice Thurgood Marshall said the decision would perpetuate “the very evil” Brown aimed to cure.
The religious right has also shown its capacity to reshape the Supreme Court. Through decades of organizing, they have become a key constituency within the Republican Party, and in turn have had significant influence on its judicial appointments. Their clout and determination eventually persuaded the court to support school vouchers in 2002. And as the leaked decision suggests, the justices may finally weaken or overrule Roe this term, delivering on the right’s most sought-after goal.
In addition to abortion, the court will hear blockbuster cases on gun control, affirmative action and protecting the environment this year. Given the conservative bent of the court, the struggle for justice on these hot-button issues will no doubt be an uphill battle. However, even if Roe is overruled, or other right-wing decisions come down the pipeline, the fight’s not over.
Like any political institution, the court is concerned about protecting its image and influence. The justices do care about how their decisions are interpreted and whether they are followed, given that they don’t have either the “sword or the purse,” as Alexander Hamilton put it, to enforce their will.
A fierce public response can lead the court to change course after the fact if its justices realize they seriously misjudged where the country is at — and that their decision is catalyzing a groundswell of opposition.
“Almost everything consequential about judicial review occurs after the judges rule, not when they do,” Freidman writes. “Rather, it is through the dialogic process of ‘judicial decision — popular response — judicial redecision’ that the constitution takes on the meaning it has.”
Therefore, what happens next is ultimately up to us. Like so many movements have done before, through determined organizing and education, we can build the power necessary to influence the courts’ decisions or challenge their implementation. SCOTUS may seem like an impenetrable institution, but history shows public protest matters.
As Alexis de Tocqueville wrote in his classic Democracy in America, Supreme Court justices are “all-powerful so long as the people consent to obey the law; they can do nothing when they scorn it.”
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