WashU expert: Post-Dobbs, Supreme Court legitimacy at risk – The Source



Dobbs’ controversial U.S. Supreme Court decision, which overturned Roe v. Wade and repealed previously declared rights, was widely seen as a momentous victory for conservatives. But new research from Washington University in St. Louis shows – setting aside the politics of the decision – that the decision was a huge loss for the court itself, producing a sizable breach – perhaps to be unprecedented – in public support for the institution.

As a result, the Court’s legitimacy may be more threatened today than at any time since the election of President Franklin Delano Roosevelt. 1930s attack on the institutionsaid James L. GibsonSidney W. Souers Professor of Government in Arts and Sciences and legal policy expert.

The finding comes from research Gibson conducted in July, with support from the university’s Weidenbaum Center on Economics, Government, and Public Policy and described in a new paper: “Loss of legitimacy: Did Dobbs undermine popular support for the US Supreme Court?

No stranger to controversy

The Supreme Court is no stranger to controversy, of course. Cases such as Bush v. Gore, which ultimately determined the outcome of the 2000 election, and California v. Texas, which upheld the Affordable Care Act, were extremely controversial at the time. However, those rulings did not undermine public support for the court, Gibson said.


“When Americans are exposed to images of judges in their robes, of the stately courthouse, and of the visible deference generally given to the institution, they tend to see the court as removed from mainstream politics, making even the unwanted decisions,” Gibson said. . “For most Americans, adverse Supreme Court rulings have little or no impact on institutional legitimacy because those rulings arrive wrapped in symbols of judicial authority.”

The survey results confirm that the court’s Dobbs decision was widely unpopular with Americans, with 62% disapproving while 38% supported it. Despite the decision’s unpopularity, it shouldn’t have affected overall public satisfaction with the institution, Gibson said. But that’s not what happened this time.

Following the Dobbs ruling, the percentage of respondents who supported abolishing the tribunal altogether increased by 7 percentage points to 19%. The percentage of respondents who gave uncertain answers also increased significantly (33%). Perhaps even more worryingly, 46% of July respondents gave no pro-legitimacy responses to Gibson’s questions about the court’s removal; dismiss judges who rule against the majority; and make the court less independent. This, Gibson reported, is an astonishing number, a bit of a departure from previous surveys.

“The most important finding from this data is that support in court has undoubtedly declined,” Gibson said.

What’s different this time?

Public satisfaction with the Court’s decisions has declined in recent years. For many, the Dobbs decision seemed like the proverbial straw that broke the camel’s back, Gibson said.

“Before 2020 — believe it or not — Liberals were winning almost half the time (and losing half the time),” Gibson said. “In this scenario, almost everyone had a reason to stay loyal to the court.

“Since 2020, however, a determined and emboldened majority in court wants only conservative rulings. If liberals rarely get what they want from the court, then the question arises whether it makes sense to continue supporting the institution. Losing, in itself, is not the problem. The sustained loss is.

There are many other reasons why the decision overturning abortion rights had such a big impact on public perception of the court, Gibson explained.

“First, the media coverage of the decision was extensive, meaning that virtually every American knew about the decision – and that was even before the decision was made due to an unprecedented breach of process secrecy. decision of the court,” Gibson said.

Further: “The decision addressed a deep moral issue on which compromise is difficult. And it went against the preferences of most Americans, nullifying a constitutional right that had been available for nearly half a century, a right with disproportionate implications for minorities.

There is also the question of how the decision was perceived from the outside.

“The case was decided by a split vote, with strong and caustic dissent, and it overturned well-established precedent and challenged the theory of stare decisis,” Gibson said. “The majority opinion seemed to follow an outline written decades earlier by the author of the decision on a strategy to overthrow Roe, and the votes of some majority justices appear to be at odds with what they had promised during of their confirmations to a headquarters in the field. All of these factors, Gibson felt, added fuel to the fire among those unhappy with the decision.

The court could restore public confidence, but it seems unlikely try

In the same survey, Gibson explored the question of “what’s next” with questions about the likely consequences of future court rulings on abortion and privacy. Those who opposed the court’s Dobbs ruling were asked whether the court should be “removed” if a new ruling banned abortion under all circumstances. Almost two-thirds (64%) of opponents of Dobbs supported giving up the land. By comparison, only 28% of Dobbs supporters would support scrapping the court if it overturned the decision and restored abortion rights, Gibson said. This evidence shows the court a path to restoring its legitimacy.

As it stands, Gibson’s data shows that “support for structural change at the Supreme Court – such as term limits or changing the size of the court – is already widespread and looks likely to continue to grow, especially if the court continues to take extreme positions on the cases,” Gibson said.

“But I also believe that the ability of the court to enforce its decisions will be threatened. There are a myriad of ways people can avoid compliance, for example disregarding court decisions through prayer in schools and Friday football games, gay issues. With the general public no longer convinced that Supreme Court rulings should be respected, the rule of law is weakened and compromised, and elites are empowered to develop plans to overthrow both the law and the institution. And liberals will try to develop these regimes just as much as conservatives.

“The Supreme Court has neither the ‘power of the purse nor that of the sword,’ making voluntary compliance with its rulings absolutely essential,” he added.

“Legitimacy is fragile; hard to get, easy to lose. I still believe that legitimacy is a lot like interpersonal loyalty. I will not abandon a friend who disappoints me once or twice. But prolonged disappointment undermines loyalty.

James Gibson

The judges resumed work on October 3 and this term could be as explosive as the previous one. They will hear cases involving affirmative action, voting rights and discrimination against gay couples.

Gibson urged the court to proceed with caution: “The court needs to calm him down. There are a number of things the court could do to halt the decline in legitimacy – such as refusing to decide hotly contested issues for a time and offering greater transparency – but the Tories seem determined to get whatever they want. they can while they’re still in power,” Gibson said.

“Legitimacy is fragile; hard to get, easy to lose. I still believe that legitimacy is a lot like interpersonal loyalty. I will not abandon a friend who disappoints me once or twice. But sustained disappointment undermines loyalty,” Gibson said. The problem of sustained deception, particularly on questions with strong moral content, will continue to haunt judges.

According to Gibson, only Roberts seems to be aware of the perils that await him. Other judges act more recklessly, he said, such as in Judge Clarence Thomas’ agreement in Dobbs.

“Maybe they were emboldened by the utter failure of the Supreme Court Biden commission, but if I was one of them, I would be scared right now,” Gibson said. “They can cause lasting damage to the institution, regardless of any given legal issue. And that damage could be long-lasting.

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