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The American Disconnection with the Supreme Court

This spring, the Supreme Court will hear its first major abortion case since 2007. The case was brought by several abortion providers and challenges H.B. 2, a Texas law passed in 2013 that requires abortion clinics to meet hospital-grade standards and doctors who perform abortions to have admitting privileges at nearby hospitals. Before the passage of the law two years ago, there were over forty abortion clinics in Texas. Since its passage, however, more than half have closed, and if the Court upholds the law, there will only be ten left in the whole state — with not a single clinic in the 500 miles between San Antonio and New Mexico. When Governor Rick Perry signed the law, he stated his intention to “make abortion at any stage a thing of the past,” so H.B. 2 can clearly be labeled a Targeted Regulation of Abortion Providers, or “TRAP law.” If the Court upholds the law, it will further entrench the previously set precedent disabling access to abortion clinics. It is thus considered the biggest abortion case since 1992.

In a 2015 Gallup poll, only 19 percent of respondents said they believe that abortion should be illegal in all circumstances, while 29 percent said it should be legal under any circumstance, and 51 percent said it should be legal only under certain circumstances. Since the Texas law does not limit the circumstances in which a woman can have an abortion, but rather holds abortion clinics to higher standards than facilities providing equally or more dangerous procedures, thus forcing clinics to close, theoretically the 80 percent of respondents who are in favor of a woman’s right to have an abortion under some or any circumstances should be against the law. However, in a recent online Reuters/Ipsos poll of United States adults, opinion was more divided: 33 percent of respondents reported believing the justices should strike down the law, 32 percent said they should uphold it, and 36 percent did not know.

The fact that 36 percent of respondents had no opinion about a case that has the power to severely limit American women’s access to abortion, a highly polarizing topic across the country, is unsurprising. Despite the Supreme Court’s considerable power, Americans are woefully disconnected from it. In a 2010 Pew Research Poll, only 28 percent of respondents identified John Roberts as the Chief Justice of the Supreme Court. Fifty-three percent admitted they did not know, while 8 percent answered Thurgood Marshall, who died in 1993. While the poll is five years old, there is no reason to assume Americans are suddenly more knowledgeable about arguably the nine most powerful individuals in the United States government (perhaps save for the cult following of the “Notorious RBG”). Results of a 2012 national survey conducted by reinforced this notion; only 34 percent of respondents could name a single justice, let alone identify the chief, and only one percent could name all nine.

Americans are not only uninformed about who makes up the Supreme Court, but also what it does. In June, a Henry J. Kaiser Family Foundation poll found that 44 percent of Americans had not heard anything about King v. Burwell, which was at the time an upcoming case that could have caused 7.5 million people to lose their health care subsidies under the Affordable Care Act. Twenty-eight percent said they had only heard a little. The fact that so few Americans were unaware of a decision that could have significantly affected such a deeply controversial piece of legislation is alarming.

It is ironic that while so many citizens claim to feel strongly about abortion, the majority cannot name the justices who will have the power to drastically change women’s access to it this spring. While the Supreme Court was designed to isolate it from popular whims by virtue of its appointed, life-serving members, the fact that so few Americans are even aware of who justices are makes them particularly unaccountable. In theory the Court interprets the law independent of pressure from the masses, but in reality public opinion can play a role in how it decides. Research by the American Journal of Political Science shows, for instance, that the Court finds itself especially constrained by public opinion in cases where it fears a failure to implement its decision. Public opinion can also sway how the Court rules on cases in a less immediate sense by affecting who the president nominates and Senate confirms in the first place.

Of course, the less engaged the public is, the less pressure Supreme Court justices may feel. Lack of public engagement with the Supreme Court can be in part attributed to the Court’s refusal to allow the videotaping of its sessions. Last year on his show Last Week Tonight, John Oliver played audio from oral arguments over a video footage of dogs dressed up as the justices, based on the stance that “if someone made you listen to [just the audio], you would punch them repeatedly in the face.” While he used comedy as a platform for his criticism, his point that lack of video footage from the Court’s sessions can create more of a wall between Supreme Court discussion and public engagement rings true.

The way in which the Court releases its opinions is outdated as well. Rulings offer explanations and reasoning that could easily spur more public discourse if they were more accessible. The Court’s opinions are officially published in case books called the United States Reports. While the public has access to summaries and unofficial versions released by companies online, if the Court released its opinion officially online they would be easier and faster to reach. As it is, the Court rather than directing interest citizens to a page on it website titled “Where to Obtain Supreme Court Opinions,” which list mostly print and subscription-only online sources. This makes it seem intimidating and bothersome to find official opinions, and to many citizens it just does not seem worth the time.

Regardless of the hassle, and even though Americans do not elect Supreme Court justices, there is still a civic duty to remain engaged in what they do. What the Supreme Court decides in many of its cases, including its upcoming abortion case, can have tremendous influence over our lives. If 80 percent of Americans really believe that women should have access to abortion at least under some circumstances, they should watch closely as the Court debates allowing states to limit it. Americans should start by learning the names of the nine most powerful unelected individuals in the American government, and then pay close attention as they decide the upcoming case.

About the Author

Emma Axelrod '18 is a senior staff writer for the Brown Political Review.