UMD Expert: Roe Ruling ‘Maybe Changes the Calculus’ on Supreme Court

In the week since the overturning of Roe vs. Wade rocked the nation, supporters of abortion rights have taken to the streets to protest, poured money into organizations that help women terminate pregnancies and volunteered “camping trips” on social media to get people across state lines to jurisdictions where the procedure remains available.

They’re also asking whether Americans can pack the court with additional seats or establish term limits to answer the changing balance of the Supreme Court, whose majority has leaped to the political right due to appointments from former President Donald Trump. But many others would likely find such sweeping changes difficult to stomach, said Patrick Wohlfarth, an associate professor in the UMD Department of Government and Politics.

“A lot of research suggests most citizens, even when faced with a decision they disagree with, don’t support fundamentally altering the institution,” he said. “The caveat is, this is a time of hyperpolarization and the Dobbs abortion decision is so large and impactful—that maybe changes the calculus a bit.”

Maryland Today recently spoke to Wohlfarth, co-author of “The Conscientious Justice: How Supreme Court Justices’ Personalities Influence the Law, the High Court, and the Constitution” and “U.S. Supreme Court Opinions and Their Audiences,” on whether the institution is facing a crisis in legitimacy, what options are available for pro-choice advocates and how the Dobbs vs. Jackson Women’s Health Organization decision impacts the ideal of a Supreme Court being “above politics.”

Is there a historical comparison for this reversal of an existing federal right?
Contracting rights in this regard is the exception, not the norm, on the contemporary Supreme Court. Much of 20^th and 21^st-century Supreme Court history witnessed an expansion of individual rights. In that respect, I can’t think of any in recent memory off the top of my head.

The Supreme Court has at times significantly reversed course from its prior decisions. The big kind of reversals that you might compare it to are some of the civil rights-type cases like Brown (v. Board of Education of Topeka, which ended “separate but equal”). You could make the argument that the recent abortion decision begins to approach that magnitude in terms of political and societal interest.

Given the widespread anger and protests over this decision, is the Supreme Court having a crisis of legitimacy?
It’s not entirely clear. General approval of the court is down but we also have a lot of research in political science that suggests the legitimacy of the Supreme Court is durable. Even when the Supreme Court makes decisions that prompt some backlash, over time as things settle in, most people revert to acceptance.

On the other hand, this is just a different and larger decision. The magnitude of this decision exceeds most, if not all, that the Supreme Court has made over the last several decades.

What does it say about our governmental system that the decision was made in the judicial branch, rather than through the legislative process?
The Supreme Court is essentially punting the issue and sending it back to state legislatures. If you view it from a federalist system of government perspective, it’s allowing regular citizens across the states, through the normal political process and representation, to see that their views are represented. This is enabling a popularly elected legislature at the state or federal level to take action.

But if you believe that abortion is a right grounded in the U.S. Constitution, including a right to privacy and substantive due process, then one of the Supreme Court’s jobs is to make sure that individual rights are protected. That’s obviously a principle fault line here.

Does this damage the ideal that the Supreme Court can be “above politics”?
A lot of the rhetoric, a lot of the public attention to the court is cast in political terms because there are a lot of weighty political implications for many decisions. A sizable proportion of the docket each term is ruled unanimously and you can get some odd voting splits (that don’t follow partisan lines).

At the same time, the justices are human beings who have worldviews and life experiences. When they are confronted with an ambiguous constitutional phrase or principles that are inherently vague and can be interpreted differently, that creates a natural recipe for different views on the same issue.

What sorts of redress do people have if they oppose the decision? You can’t vote out a Supreme Court justice.
There is a mechanism to revise the Constitution. It’s very difficult to accomplish that, which is why it hasn’t been done very often. It’s not really feasible in most situations, especially involving divisive issues like abortion.

If you are pro-choice, your recourse right now is to inspire elected officials to pass laws at the state level, and perhaps also Congress, which are consistent with your views.

What about adding justices to the Supreme Court to change the voting dynamic?
It just requires a simple statute passed by Congress and signed by the president. That being said, I still don’t think it’s likely to happen. Historically speaking, most of the evidence we have suggests most citizens don’t support fundamentally altering the institution to achieve some policy goal.

How will this affect courts at the state level? For example, there have already been stays and challenges of “trigger law” abortion bans, such as in Louisiana and Utah.
Given the political landscape, what we now have are 50 different state-level political debates going on. That’s where the action is primarily going to move.