Have conservative voters in states like Kentucky chastened the conservatives on the Supreme Court?

Laura Moyer is a political scientist at the University of Louisville who specializes in studying the American judicial system. We discussed how the Dobbs ruling has reshaped how Americans think about the U.S. Supreme Court, whether the high court should care if it’s out of step with public opinion; and her impressions of the newest justice, Ketanji Brown Jackson. 

Perry: Looking at the midterm results, polling and some recent ballot referendums, it seems like the Supreme Court’s Dobbs ruling last year striking down Roe v. Wade resulted in a huge increase in Americans’ support for abortion rights and a simultaneous, substantial decrease in Americans’ approval of the high court. In terms of the court, are we looking at a truly historic event for its perception, perhaps rivaling Brown v. Board? 

Laura: Yes, I think so. This is a watershed moment. The court hands down controversial rulings all the time, but this one is different. It's in a category by itself. 

For example, if you look at polling, in 2020, Republicans and Democrats were very close to one another in saying the Supreme Court had about the right amount of power. If you look at polling after Dobbs, all of a sudden there's a huge difference, a super majority of Democrats saying that the Supreme Court has too much power. Republicans don't really move. So we see this huge shift in attitudes. 

We'll have to see what continues to happen. But I think that as an institution, the Supreme Court is not likely to return to the high levels of support that it's historically had. 

I want to give some credit to the way that the news media, after the decision, started covering the topic of abortion. Prior to Dobbs, both the pro-life and pro-choice sides had kind of locked-in positions, the way that they framed abortion. But what ended up happening [after Dobbs] were there were all these stories about women who had wanted pregnancies, where things went wrong. So the likelihood of someone knowing a person who was impacted by this decision was really, really high. 

One of the things that's fascinating is if you look at, for example, what happened in Kentucky with the proposed constitutional amendment. These are voters [some of those voted the pro-abortion rights position] who probably identify as Republican. But the understanding of how the policy would actually play out on the ground really moved people who are gonna continue to vote for Republicans. 

Explain more about the media part of this. 

The stories that I'm thinking about are the stories covering women who have pregnancies that they and their partners wanted but who have medical complications. The stories where women were being told they weren't sick enough, they weren't close enough to death, being turned away from care because hospitals were concerned about liability. And also stories about miscarriages. 

There were some individual examples where you even had Republican state legislators who expressed vocal concerns, “I actually want a doctor to be able to step in to save a woman’s life because she is on death’s door.” 

It reframed the issue. Those kinds of stories about what women had to go through were really important for changing that national conversation. 

You said you didn’t think the court would return to its prior popularity. But it basically did after Bush v. Gore. Why is this different? 

A couple of reasons. One is something that's not in the Supreme Court's control. In general, Americans' trust in institutions is declining across a whole range of institutions. Not just government institutions. 

Secondly, one of the things that's a real challenge in our political system at the moment is really high levels of what we call affective polarization, which is not necessarily about views on issues, but emotional reactions to people who are not in our group, who are not in our party. We see those people in terms of, “They're a threat to my life. They're a threat to this country.” I can't imagine my child marrying someone from the opposite party. 

It’s just hard to imagine a situation where the Supreme Court, in an environment like this, can really be unifying. Particularly, and I want to emphasize this, people don't learn about the Supreme Court from the Supreme Court. People learn about Supreme Court rulings through media coverage. And we have people consuming very different types of media coverage. We know that many people who consume Supreme Court ruling information get that from more political sources. So cable news, for example, political talk radio, that kind of stuff. They’re going to frame the court in a more political way than ABC, CBS. 

Who is characterizing what the Supreme Court has done really does shape people's views. 

So I wasn't alive in 1954. But if I were, as a black person in America, I suspect I would have been fairly supportive of the Supreme Court's ruling in Brown. But it was controversial, particularly in the South. A lot of the discourse right now is that the Supreme Court is out of touch with public opinion. I'm not sure how I feel about that. In the case of Brown, I'm thrilled the justices reached that particular decision. In the case of Dobbs, I object to the ruling because I support abortion rights.  But I don’t object to the ruling on the grounds that it polls badly. 

Aren’t the courts supposed to ignore public opinion? We have elections for president and Congress and therefore two branches of government very accountable to voters and public opinion. 

This is the tension. So one way to think about this is that if you look at constitutional design, the court is insulated from public opinion. It's not completely insulated, but it's a step removed. So unlike state judges in many states, we don't elect the Supreme Court justices. So they don't have a direct electoral connection.

This insulation is there, in some people's view, to prevent the tyranny of the majority. If you have all three branches that are just doing what a majority of the country wants, that will always disadvantage groups that are in the numerical minority, whether those are discrete groups like racial and ethnic groups, or those are groups with minority opinions on certain issues. 

But the other side of this is that if the court bucks public opinion, then often it doesn't translate to rights on the ground. That is 100% what we saw with Brown. In the first decade after Brown is handed down, basically no integration happens in this country. It is not until you have actions from the president, later on actions by Congress that you start to see some changes.

So the court has to be mindful of public opinion, if it cares about whether its rulings are translated into real policy. If it’s just gonna be symbolic, then the court is sort of ineffectual.

So according to the Supreme Court, you could ban gay marriage in 1995, but not in 2015, because the polls changed. Basically. That doesn’t seem like how “the law” should work. 

Part of the challenge is that in this country so much of the Constitution is not an either or proposition. In a common law system, judges make the law. So the understanding does change. 

And it's hard to hold them accountable for that. That's the downside. We can hold accountable the presidents who nominate justices, and we can hold accountable senators who vote or don't vote for particular nominees. But there's very little we can do to the court itself. There’s strengths and weaknesses to that.

We're seeing now the majority of the court really embracing originalism, as they see it, to articulate this very expansive notion of gun rights. If we look at polls, the American public is really not in line with this. But there's not much that Americans can do about it, save for amending the Constitution itself. 

What have you made of Justice Jackson’s first year? 

It's been very interesting to see her impact. A lot of my work focuses on the impact of race and gender in judicial decision-making. One of the fascinating things that she brings to the court, apart from the contributions she makes in terms of her demographic identity, is her very interesting professional background. She was a public defender, but of course she was also a trial court judge. That's unusual on the Supreme Court these days. She's used to running a courtroom. She's not intimidated. 

If you look at her participation and oral arguments, she is not like other new justices on the court. She's very active. Some of the things that I've read describe her as the most active new justice ever. She definitely came out and made a splash in her first year.

She hasn't, in terms of doctrine, had much impact. She's in the minority. And as a new justice, you hardly ever get assigned majority opinions in important cases anyway. 

But if you look at some of her exchanges with attorneys in the cases on affirmative action, the Alabama case on the Voting Rights Act, you can see that she's not been afraid to articulate an alternative narrative, particularly around issues of originalism. 

She's very willing to speak to issues of race in very frank ways. That’s not too different from Sotomayor. I would expect a lot more of that from her going forward. 

So on one level, the dissents she writes have no legal authority. On the other hand, these are powerful arguments that get written up and discussed everywhere. Where do you come down on the role of very well-argued but kind of powerless dissents like the ones Jackson is writing? 

Think about the legacy of Ruth Bader Ginsburg. Her dissents, first of all, for a lot of people were really, really inspirational. It matters to people, to have those out there as a critique. For Ginsburg, we saw that a dissent also sometimes can lead to policy change. Her dissent in the Lilly Ledbetter case pointed to what Congress could do to address the deficiencies in the Equal Pay Act. Then the legislation was changed. 

And we see the arguments from dissents becoming the arguments of future majorities.

So in some ways, you do the work for future courts, you hope that you win the day in the future. That is particularly important in a moment where the Supreme Court majority is leaning heavily on what it views to be historical arguments in favor of constitutional interpretation. Often these are historical arguments that are disputed by people who are professional historians themselves. But given that there isn't actually consensus on this history, it is really important for the public to have someone who says there's actually a different way to read the set of facts. 

Even though the Supreme Court isn't supposed to be “representative,” they don't have constituents per se, there is this representative function that a dissent does provide. It signals the law isn't unambiguous, the law isn't clear on this issue.

So she's giving voice to that, but also bringing in perspectives about things like race in a moment where we're seeing lots of efforts for that kind of history not to be in circulation, not to be taught, not to be included in books that kids can get access to.  

In this political environment, that’s really interesting and really important.