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. 

“This is the first time where it’s going to go in the opposite direction — where the court would be curtailing individual rights —so we don’t have a roadmap for that,” Lawrence said. “If the court acts in such a way that is outside what appears to be a clear majority of the country, to protect rights that exist and the court operates to curtail those rights, we don’t have a roadmap for how that will affect the court’s legitimacy. But I think there’s every reason to think that it will have a major negative effect on the court’s legitimacy.” 

While the justices have been able to gauge public opinion on issues before them in previous cases, the leaked draft opinion gives them greater insight than ever before. One week after the draft was leaked, a poll found that 64% of Americans do not think Roe v. Wade should be overturned — a number on par with survey done in 2020 by the Kaiser Family Foundation. The public has never been able to view a draft opinion from the court so it is unclear how much the final ruling could change from what has already been reported, but backlash has been building steadily since the draft ruling leaked. In response to mass protests over the leaked draft, the court erected an 8-foot fence around its perimeter.

Being at odds with public opinion would come at a particularly precarious time for the court’s legitimacy. Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett all referred to Roe as settled law during their confirmation hearings, but now they all appear ready to overrule it. There is also a shadow over the appointments of Gorsuch and Barrett because Senator Mitch McConnell played constitutional hardball to ensure President Donald Trump secured three justices on the bench. McConnell held late Justice Antonin Scalia’s seat open at the end of President Obama’s term claiming it was too close to the election to appoint a new justice. Then, at the end of President Trump’s term, McConnell rushed the confirmation of Barrett. 

“Either we don’t confirm justices at the end of the president’s term or we do. And if we do, then President Obama should have been able to appoint Merrick Garland. Or we don’t, in which case President Trump should have been able to appoint Justice Barrett,” Lawrence said. “The combination of the two means there does appear to be an extra anti-choice, pro-life vote on the court. And if this case winds up being 5-4, that’s a pretty critical vote.” 

Even before the justices have made their official ruling, public confidence in them is already waning. A May NPR/PBS NewsHour/Marist National Poll found that 56% of Americans say they have little or no confidence at all in the Supreme Court. 

Legal experts say overturning Roe puts the court in uncharted waters with no historical context that could predict what the consequences of a decision like this could be for the institution. 

“This is the first time in which the thread that you can trace all the way back to the Constitution, which is a trend of slowly but consistently increasing rights — rights being expanded to African Americans, rights being expanded to women, rights being expanded then to people of color more generally, to people regardless of national origin, to people with respect to disabilities, to people with respect to sexual orientation,” Lawrence said. “You have a slow but steady expansion of those who are protected by the reach of the law and a slow and steady expansion of individual rights that are recognized by the law. This is the first time you’ll have a major contraction of those rights in the face of a public view to the contrary.”

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