Day: October 6, 2021

It's also possible that Supreme Court justices mostly care about their reputation among a select group of Americans. Baum and Neal Devins, a professor of law and government at the College of William & Mary, have argued that Supreme Court justices are more interested in how they’re regarded by elites.

This is significant for understanding why the conservative justices’ behavior has become more predictably right-wing. Baum and Devins argue that as elites have grown more politically polarized, the justices’ partisan tendencies have hardened as well. In other words, the people influencing the conservative justices' thoughts are probably much more right-wing than the public at large. On top of that, some of the justices may be willing to risk backlash for the outcome they believe is correct. “Is legitimacy something that’s enough to get a justice to move away from something [he or she] strongly feels?” Baum told me. With the possible exception of Roberts, who is particularly focused on the court’s image, Baum doesn’t think the public’s views will be enough to sway a justice who cares deeply about the issue they’re deciding.

And this might be right. On one hand, it’s not obvious that a single unpopular ruling -- even if it’s high-profile -- would be enough to sow widespread doubt in the Supreme Court’s legitimacy. Take the outcome in Bush v. Gore, where a divided Supreme Court, split along partisan lines, effectively handed the presidency to George W. Bush. The ruling was intensely controversial at the time, but it appears to have had little lasting impact on the court’s image. And although it might be hard to imagine, the same could be true of a decision that overturns or reshapes Roe — particularly if the justices merely limit the constitutional right to abortion, rather than eliminate it.