In court of public opinion, U.S. justices mostly get it right

The Supreme Court shifted to the right four years ago when conservative Justice Samuel A. Alito Jr. succeeded moderate Sandra Day O’Connor.

And if American public opinion is the measure, the Roberts court has made the right call in most of its major decisions since then, according to a recent study that asked respondents about cases.

A strong majority favored conservative rulings that prohibited “partial-birth” abortions, upheld a homeowner’s right to have a gun, and required voters to show photo identification. The majority also supported liberal rulings that said environmental regulators could restrict the carbon pollution linked to global warming and that struck down state laws that put juvenile criminals in prison for life without hope for parole.

All these cases split the court along conservative-liberal lines, and most were decided by 5-4 votes.


There were two notable exceptions. The public disagreed with the liberal decision two years ago that gave detainees at the U.S. prison in Guantanamo Bay, Cuba, a right to challenge their detention in a civilian court. Sixty-one percent of respondents said these noncitizen detainees should not be allowed to go to court.

The public also disagreed with the conservative ruling earlier this year that gave corporations a right to spend freely to endorse or oppose candidates for election. By 58% to 40%, they disagreed with the notion that “corporations ought to be able to spend their profits on TV advertisements urging voters to vote for or against candidates.” President Obama blasted the court’s decision in his State of the Union address in January.

Columbia University law professor Nathaniel Persily said the court historically has been “to the left of the public” on issues that attract attention, such as crime, religion and affirmative action. Along with Harvard political science professor Stephen Ansolabehere, he set out to survey the public’s view of actual cases. Their Constitutional Attitudes Survey asked more than 1,600 respondents in 2009 and 2010 about issues that were before the high court.

The campaign finance decision in January “is very out of step with public opinion,” Persily said. In the Citizens United case, the court struck down a federal law that barred corporations or unions from spending money to support or oppose candidates for office.

The respondents not only opposed the decision, but 85% of them said corporations should be required to get the approval of their shareholders before spending money on political campaigns.

Overall, the court’s current and nuanced position on the death penalty and abortion is line with public opinion, the survey found.

A majority supports the death penalty for murder, and the court has upheld capital punishment. The public also agreed with the rulings that ended the death penalty for those who are mentally retarded (in 2002) and for those under age 18 at the time of their crimes (in 2005).

Two years ago, the court was faced with deciding whether Louisiana and five other states could restore the death penalty for child rapists. By a 5-4 vote, the court struck down those laws as unconstitutional in Kennedy vs. Louisiana.


In the opinion survey, however, the respondents disagreed with this decision, with 68% saying they supported the death penalty for “a person convicted of raping a child.” In deciding cases involving claims of “cruel and unusual punishment,” the court’s opinions have often cited trends in public opinion.

On abortion, the public supports the Roe vs. Wade ruling that set forth the right to abortion, but it also supports regulations and restrictions, including limits on late-term abortions. When asked about Roe vs. Wade, a 61% to 38% majority said it agreed with the court’s decision that “established a woman’s right to an abortion.”

In 2007, the Roberts court upheld the federal Partial Birth Abortion Ban Act in a 5-4 decision. This marked a conservative shift in the law, since the justices had struck down a state ban on such abortions in 2000. Alito’s vote turned what had been a 5-4 liberal majority into a 5-4 conservative ruling.

But this shift was in line with public opinion. Seventy-four percent of respondents supported a “ban on abortions performed late in the term of a pregnancy, also called partial-birth abortions.”


On gay rights, the public takes the liberal view; 70% of respondents said they agreed with a 2003 high court ruling that struck down laws “banning sex between people of the same gender.”

They were also asked about a pending issue: Should gays and lesbians be able to serve openly in the military? By a 2-1 ratio, respondents agreed they should have that right.