After Dobbs: A Note of Warning to the U.S. Supreme Court

Abstract

One of the U.S. Supreme Court’s decisions generating the greatest threat to the legitimacy of the institution is its ruling abrogating the abortion/privacy rights much earlier pronounced in Roe v. Wade. While the Dobbs decision itself produced the greatest lost legitimacy social scientists have ever documented, this paper contemplates the consequences for the Court’s legitimacy of two possible new rulings. The first, reinstating Roe by overruling Dobbs, would result in practically no Americans supporting punishing the Court for its decision. The second, expanding Dobbs to ban all abortions, would result in only about one-half of Americans being willing to extend legitimacy to the institution. Indeed, if there were to happen, more than forty percent of the American people would deny the Court legitimacy and support structural changes to eliminate the justices’ tenure for life. Were the Court to move beyond Dobbs, perhaps even toward undermining privacy rights, a legitimacy crisis for the institution would be created that could have dramatic consequences for the ability of the Court function as it has so far in the modern era.

Keywords: institutional legitimacy; abortion politics; constitutional law; public opinion

JEL Classification: K40