What Sandra Day O’Connor Got Wrong
A few years before she left the Supreme Court in 2006, Justice Sandra Day O’Connor explained the relationship between courts and the public. As she saw it, courts were “mainly reactive institutions,” she wrote in “The Majesty of the Law,” a collection of her articles and speeches. “Rare indeed is the legal victory — in court or legislature — that is not a careful byproduct of an emerging social consensus.”
In the days since Justice O’Connor’s death this month, that observation has received more attention than it did when the collection was published in 2003. I quoted from it in the obituary I wrote for The Times, and writers for other publications did as well. Its appeal was obvious.
As applied to Justice O’Connor, it provided a rationale for the nondoctrinaire, context-attentive approach she took toward deciding hard questions on issues like abortion, affirmative action and L.G.B.T.Q. rights. As applied to the court as an institution, it sounds comforting and reassuring. A reactive court is not a court that drives the country into unwelcome territory. A decision anchored in social consensus is one that by definition is unlikely to ignite still more social polarization.
Pondering Justice O’Connor’s words in recent days, I’ve come to a sad conclusion. Perhaps she was right 20 years ago. But from the perspective of today, she was wrong.
The Dobbs decision that erased the constitutional right to abortion 18 months ago was not “a careful byproduct of an emerging social consensus.” It was reckless, leading directly to this week’s grotesque drama in Texas, in which a desperate woman had to flee the state in order to follow her doctor’s advice and terminate a doomed pregnancy that threatened her fertility.
Far from reflecting an “emerging social consensus,” Dobbs flew in the face of a longstanding majority view in favor of retaining the right to abortion. The decision by five justices, all raised in the Catholic church, was indeed “reactive.” What it was reacting to was a religion-fueled political effort that spanned five decades and that in 2016 led a presidential candidate, Donald Trump, to promise that a court filled with his appointees would overturn Roe v. Wade “automatically.” There is no law in Dobbs, only the performance of something dressed up to look like law.
Dobbs is the most obvious but hardly the only current example of judicial activism that flies in the face of majority will. The court’s gun-rights jurisprudence has become so extreme, threatening so many long-accepted firearms regulations, that even some of the justices who voted in the majority in last year’s Bruen decision appeared to be taking cover last month when the question being argued was whether the Second Amendment actually requires leaving guns in the hands of domestic abusers.
The court’s invention a few years ago of something it calls the “major questions doctrine” would bleed authority out of the federal agencies that Congress created in the quaint belief that expertise deployed in the business of government is a good thing. The calls for dismantling the “administrative state” to which the court is responding come not from the public as a whole, but from a libertarian-conservative minority with a lot of money and the right friends in high places. Separately, a series of decisions has shown a Supreme Court majority determined to give religion a veto over laws and regulations designed to prevent discrimination and protect public health.
We know these things. We don’t need social scientists to tell us what we can see with our own eyes. Yet a study published last year in PNAS, a journal of the National Academy of Sciences, is illuminating nonetheless. Compiling a decade’s worth of surveys, the authors found that while the Supreme Court tended to reflect the views of “the average American” until 2020, “the court is now near the typical Republican and to the ideological right of roughly three-quarters of all Americans.”
So it should hardly be surprising that public trust in the court has fallen precipitously. According to Gallup, the court’s public approval, which had been running between 60 and 70 percent, dropped to a record-low 40 percent in September 2021. Gallup associated the drop with the justices’ refusal to block Texas’ flagrantly unconstitutional Senate Bill 8, a pre-Dobbs law that effectively shut down abortion in the state by authorizing members of the public to act as vigilantes and sue doctors for performing abortions after six weeks of pregnancy. The public’s disfavor has proved entrenched and unusually persistent. In September of this year, two years after the initial drop, Gallup found that public approval remained near the record bottom, at 41 percent.
What we can’t know are the long-term implications of sustained public alienation from the court. The current situation has upended cherished political science theories about the relationship between the court and the public. James Gibson, a political scientist at Washington University in St. Louis, has been a developer and leading exponent of the “legitimacy theory,” a widely held view that a layer of “diffuse support” — “a reservoir of good will,” as he puts it in a recent academic article posted online — insulates the Supreme Court from lasting negative consequences when it issues unpopular decisions.
The theory was put to its greatest previous test 23 years ago in Bush v. Gore, the case that decided the 2000 presidential election in favor of George W. Bush. Many commentators, and the dissenting justices themselves, predicted that the court would suffer a lasting self-inflicted wound from its intervention into the heart of American politics. But that did not happen. Public approval of the court quickly rebounded. Even so, years later, Justice O’Connor, who had voted with the 5-to-4 majority, appeared to indicate that she viewed the court’s intervention as a mistake.
In his article, to be published in the American Journal of Political Science, Professor Gibson notes that the court is not recovering from Dobbs as it did from Bush v. Gore. Under the title “Losing Legitimacy: The Challenges of the Dobbs Ruling to Conventional Legitimacy Theory,” he suggests that something perhaps unprecedented, even “ominous,” has occurred as the reservoir of good will has seemingly drained away. The data he compiled in the wake of Dobbs challenged his own assumption that “Supreme Court legitimacy is obdurate, difficult indeed to change in the short term,” leading him to conclude that he and other proponents of the legitimacy theory “may be wrong.” In fact, the court’s legitimacy may be “at greater risk today than at any time since Franklin D. Roosevelt’s 1930s attack on the institution.”
Does legitimacy even matter? Professor Gibson observes that “institutions perceived as legitimate have a widely accepted ability to make binding judgments for a political community; those without legitimacy often find their authority contested.” We may see a test of those words soon enough. The justices probably have thought they had a breather before the court became ensnared in the coming presidential election. Any such assumption was shattered on Monday when Jack Smith, the special counsel prosecuting former President Donald Trump on charges of plotting to overturn the 2020 election, asked the court to bypass a pending appeal and rule with extraordinary speed on Mr. Trump’s claim of immunity from prosecution.
While of course this case doesn’t portend a replay of Bush v. Gore, it does hold out the prospect of the court once again playing a central role in what could prove a crucial turning point in the 2024 election cycle. Will a skeptical public trust the court to make a decision based on law rather than politics? Does it matter if the reservoir of good will that protected the court a generation ago is empty? Now that the theory that guided Sandra Day O’Connor has been overtaken by events, we are left to hope for something other than the exercise of raw power to take its place.
Linda Greenhouse, the recipient of a 1998 Pulitzer Prize, reported on the Supreme Court for The Times from 1978 to 2008 and was a contributing Opinion writer from 2009 to 2021.
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