FOLLOWING their script, both pro-choice and pro-life groups have announced that, once again, the US Supreme Court, through its decision in Planned Parenthood v. Casey, is out of touch with the views of the majority of Americans.
In fact, the Supreme Court justices, who give the appearance they wouldn't know a public opinion poll if it hit them in the face, in this decision did remarkably well in reflecting current opinion on abortion.
The three key provisions of the Pennsylvania law under scrutiny were: teenagers must obtain consent of one parent or a judge; a woman must wait 24 hours after hearing a presentation on the growth of the fetus; and she must inform her husband except in certain circumstances.
According to a Times Mirror survey in May, prior to the decision announcement, the public agreed with all of these provisions. Seventy-three percent favored restrictions on teenagers' access to abortion, 81 percent supported the 24-hour waiting period and medical presentation, and 69 percent agreed with the husband notification provision.
So did the court. Only the husband notification provision was struck down. Given the opinions before them - uphold Roe v. Wade intact, strike it down and return the issue to the states, ban abortion outright as constitutionally impermissible, or forge some middle path - the justices chose a course largely reflective of the American public's thinking.
The court's opinion reflects Americans' ambiguity about abortion. The position that commands the most public support is neither clearly pro-choice nor pro-life. Most Americans favor legalized abortion in some circumstances. The court reflected that view and, with one exception, mirrored the majority's will on what those circumstances would be.
The court's adherence to public opinion is not new. The Rehnquist court has been far closer to public opinion than it is credited for. Undoubtedly, the court has differed with the public on high-profile issues such as school graduation prayer and flag burning. But on most issues the court has not been "out of touch." Its opinions on issues such as the rights of the accused, capital punishment, homosexuality, and the right to die have reflected majority will.
In the right-to-die case, according to a Times Mirror poll, 80 percent of the public believed a terminally ill patient should choose whether medical treatment should be withdrawn or withheld. The court agreed.
The court hews a line supportive of majority views because, despite its title as defender of minority rights, the justices are largely dependent for their continued power on the goodwill of the majority.
They must be cognizant of majority opinion and, for the most part, not stray far from it. The majority allows broad tolerance for the court, but a succession of anti-majoritarian decisions jeopardizes the court's policymaking role.
The justices rely on public deference and compliance to get their way. In his famous Federalist paper, Alexander Hamilton argued that the court's lack of control over the sword (execution of the law) or command over the purse (policymaking through budget) restricts the size of the court's power base. Hamilton concluded about the source of the court's power, "It may truly be said to have neither Force nor Will, but merely judgment."
The recognition of its good judgment comes from the public. Hence, the court is reliant on the public to support its decisions and comply with them. Public opposition to the court's decisions produces a national thumbing-of-the-nose at the justices that reduces public deference and compliance and reduces the court to the level of irrelevancy.
Through deference to the Supreme Court, the public allows the court to preserve its power. The public also supports the court by complying with decisions and fending off challenges from other political insititutions.
Ironically, the court only rarely publicly acknowledges the role of this constituency in maintaining its power. But this must be so. While the court typically must be reflective of majority opinion to retain majority support, it loses majority support when it appears to draw conclusions not from the law but from majority opinion.
This conundrum is not purely of the court's creation. It derives from public expectations. Although the majority want the court to read the Constitution as they do (no matter how inconsistent over time that reading may be), they want the court to reassure them that the reading is what the Constitution means. The court is expected to place the stamp of constitutional approval on the will of the majority.
In Planned Parenthood v. Casey, the court did not follow the law; it followed public opinion. As a political institution dependent on public will for the preservation of its very role in American politics acting in a high visibility case, it could do no less.