The Public & the Supreme Court

It is “big decisions” week at the U.S. Supreme Court. While most people have an opinion about how the Court is handling its job, the details are often obscure to a substantial share of the public. This week’s decisions will come as surprises to many who don’t follow the Court’s docket.

The Court has suffered a substantial decline in approval since 2020, when fully 66% approved of the job the Court was doing. As of May, 2023, approval stands at 41%. All the data reported here is from the Marquette Law School Poll national surveys of adults.

Approval of the Court differs sharply by party identification, with Republicans maintaining a high approval rating around 60% but independents dropping into the 30s and Democrats into the 20s.

There has been considerable stability in views of the Dobbs decision, which struck down Roe v Wade in June 2022, at least among those who have an opinion on the case (more on those without an opinion below.) About 2/3rds oppose overturning Roe, while 1/3rd support the Dobbs decision.

Approval has changed in “sensible” directions, following party and shifting as the Court has issued major decisions. Disagreement with outcomes drives approval down, agreement with outcomes increases approval. Few of the public are aware of the details of legal reasoning in decision, though elite discourse may emphasize textualism or originalism or “history, text, and tradition” based arguments.

The limits of public attention to the Court is vividly illustrated by awareness of the balance of justices nominated by Republican and by Democratic presidents. Nominations have been intensely contested for over a decade (arguably longer) and the three Trump appointments followed in the wake of Obama’s nominee being denied hearings or a vote in 2016 following Justice Scalia’s death. If a lot of politics has been “all about the judges”, much of the public hasn’t followed the story.

Despite a long standing Republican-appointed majority on the Court, and the current 6-3 majority, 30% of the public believes a majority of the justices were appointed by Democratic presidents. About 40% say a majority was “probably” appointed by Republican presidents, and just 30% say a majority was “definitely” appointed by Republican presidents.

In the wake of the Dobbs decision there was a 10 point rise in the percent saying “definitely” Republican appointed majority, and a drop of 10 points in the percent incorrectly believing Democrats had appointed a majority. But this increased information has declined over the year since Dobbs, giving up all those gains to return to where it was, with 30% saying definitely Republican majority and 30% thinking Democratic appointees are the majority.

For those following, or reporting on, the Court, the share of the public unaware of the makeup of the majority is striking. Discussion of the Court generally assumes some facts are universally known, but this is not the case.

The Dobbs decision has shifted the policy landscape after 50 years of settled law, and has made abortion a central issue in many campaigns as state legislatures have adopted sharply differing laws, replacing the basic national standards for abortion rights under Roe and Casey that had prevailed.

The Dobbs case was clearly on the horizon for months before it was decided. Yet when we (the Marquette Law School Poll) asked about it in Sept. 2021, 30% said they “haven’t heard enough to have an opinion.”

Pre-decision
Do you favor or oppose the following possible future Supreme Court decisions, or haven’t you heard enough about this to have an opinion?

Overturn Roe versus Wade, thus strike down the 1973 decision that made abortion legal in all 50 states.

Post-decision
Do you favor or oppose the following recent Supreme Court decisions, or haven’t you heard enough about this to have an opinion?

Overturned Roe versus Wade, thus striking down the 1973 decision that made abortion legal in all 50 states.

The leak of the Dobbs opinion raised awareness about 8 points while the actual decision increased awareness another 10 points. By the fall of 2022, about 10% said they hadn’t heard of the Dobbs decision. This is an example of how an extraordinarily salient decision can reach almost all of the public, certainly more than the typical case or of the Court majority above.

This week, we expect a decision on the use of race as a factor in college admissions. This issue has been with us at least since the Bakke case in 1978, and has been revisited since, notably in Grutter v. Bollinger (2003).

As of May, just over half of our national sample say they haven’t heard about the case or not enough to have an opinion.

Do you favor or oppose the following possible future Supreme Court decisions, or haven’t you heard enough about this to have an opinion?

Rule that colleges cannot use race as one of several factors in deciding which applicants to admit.

Whatever decision the Court reaches, it will come as something of a surprise to half the public. When we poll in July, it will be interesting to see how many remain unaware of this decision. Will that fall sharply, as in Dobbs, or will a substantial minority remain unaware of the decision?

A similar lack of familiarity is clear in another much talked about case (among Court watchers), 303 Creative, which concerns a business owner’s right, based on 1st Amendment speech or religious liberty grounds, to deny services to LGBTQ customers. Here too, about 45% lack awareness of the pending decision.

While a plurality favor banning the use of race in admissions, a plurality oppose allowing businesses to deny services. But in both cases the largest group is those not familiar with the case.

Views of the justices

Despite recent coverage of the justices, most of the public says they either haven’t heard of each justice, or haven’t heard enough to have a favorable or unfavorable opinion. Here we encourage respondents to say if they lack an opinion. Our question reads:

Some justices of the Supreme Court are better known than others. For each of these names have you never heard of them, heard of them but don’t know enough to have an opinion of them, have a favorable opinion or have an unfavorable opinion?

In other surveys (including ours for different questions) “haven’t heard enough” or “don’t know” may not be an explicit option. Many respondents will offer an opinion in this case. Those responses may also contain valuable information, encouraging reluctant respondents to still venture an opinion. In light of our finding on awareness of the majority on the Court, and on specific cases, we choose to frame the question in a way that explicitly acknowledges the possibility that not every justice is well known.

As the chart makes clear, many people lack opinions of each justice. There is variation, with some better known than others, but the share of “haven’t heard enough” is higher than either favorable or unfavorable for all, if only slightly so for Justice Thomas.

More than 60% say they don’t have an opinion of Justice Alito. In November 2022 we asked respondents for their best guess as to which justice authored the Dobbs decision. A quarter correctly picked Alito, with another quarter picking Thomas, and a scattering among the other justices. This is a very difficult question for the general public, who do not as a rule rush to read opinions by their favorite justices. Perhaps it is impressive that as many as 1/4 got Alito right, and Thomas is not a bad guess, given his concurrence. Still, the point is most people don’t have specific information about individual justices even in the most visible decisions.

The May 2023 survey was conducted after a series of news stories concerning Justice Thomas’ financial disclosure statements, which did not report a real estate sale or certain travel expenses paid by others. Thirty-three percent said they had heard a lot about this, while 32% had heard a little and 35% had heard nothing at all. This was a prominent story in “Washington circles” but while 1/3rd heard a lot about it, just over 1/3rd heard nothing at all.

There is a substantial difference in awareness of the Court among those who generally pay attention to politics, which is nicely illustrated by awareness of the stories about Justice Thomas’s disclosure statements. About 36% in the May survey said they paid attention to politics “most of the time” while 64% pay attention less frequently.

News stories about Supreme Court Justice Clarence Thomas’ financial disclosure reports. (Here are some recent topics in the news. How much have you heard or read about each of these?) By attention to politics.

Attention to politicsHeard a lotA littleNothing at all
Most of the time602812
Less often183448

In the most attentive 1/3rd of the public, awareness of the stories about Thomas’ disclosures were quite well known, but this dropped precipitously once we move beyond those most attentive to politics generally.

The lesson is an old one. Most people don’t pay as much attention to either politics or the Court as you, dear reader, or I. This means public reaction to Court decisions may not follow what elite expectations may be, simply because much of the public wasn’t expecting the cases to be decided. Even in Dobbs, a substantial 30% didn’t see the case coming as late as March 2022.

Further, given how much partisanship affects perceptions of the Court, the 25-30% who believe there is a majority appointed by Democratic presidents will have curiously distorted opinions of the court. In May, among Republicans who eroneously believed a majority of the Court were appointed by Democratic presidents, 57% disapproved of the Court. Among Democrats with the same misperception, 60% approved of the Court. Compare that with Republicans correctly saying there is definitely a Republican appointed majority: 76% approve, while among Democrats also saying there is definitely a Republican appointed majority: 14% approve.

There is a reporting and messaging lesson here. A substantial share of the audience you are trying to reach is likely unaware of some facts you take for granted. It is important to expand awareness of those facts by making them part of your story, even if they seem “obvious.”

Abortion and motivation to vote

Abortion policy, issue concern and enthusiasm to vote

Are abortion policy preferences linked to motivation to vote and to concern about the issue of abortion, and what role does partisanship play? I assess this using data from the Marquette Law School Poll of 803 Wisconsin registered voters, conducted June 14-20, 2022, a week before the US Supreme Court struck down the Roe v Wade decision on June 24, but well after the draft opinion in this case became public in May.

There has been a consistent majority of Wisconsin registered voters who favor legal abortions in all or most cases, and a minority who say abortion should be illegal in all or most cases. Surveys over the past decade have shown very little change in opinion, as shown in Table 1.

Poll datesLegal in all casesLegal in most casesIllegal in most casesIllegal in all cases
9/13-16/1226342313
9/27-30/1225352312
10/11-14/1225342512
10/25-28/1228322312
10/21-24/1326362510
10/23-26/1424342415
7/11-15/1827361811
9/12-16/182636219
10/24-28/1826292414
2/19-23/2018372215
10/26-31/2123382311
6/14-20/2227312411
Table 1: Trend in abortion policy preference, 2012-2022

There is little difference in enthusiasm to vote except among those who think abortion should be illegal in most cases. Those in the two pro-abortion categories, and those with the most anti-abortion preference are all equally motivated to vote. This gives no support for the idea that the abortion issue would be uniquely motivating to pro-abortion voters. Of course this could change, but the draft opinion does not appear to have motivated supporters of abortion to greater political engagement. Rather those who say abortion should be illegal in most cases are the more enthusiastic to vote in these data.

Abortion policy preferenceVery enthusiasticLess enthusiasticDK/Ref
Legal in all cases56422
Legal in most cases56421
Illegal in most cases68320
Illegal in all cases57430
Table 2: Enthusiasm to vote by abortion policy preference

Abortion policy preference and concern about the issue

Those who think abortion should always be legal or always be illegal are the most concerned about abortion policy, while those in the middle categories of legal in most cases or illegal in most cases are substantially less concerned.

Those with the strongest anti-abortion preference express more concern for abortion policy than do the strongest pro-abortion advocates by a small margin.

Abortion policy preferenceVery concernedLess concernedDK/Ref
Legal in all cases66340
Legal in most cases53461
Illegal in most cases51427
Illegal in all cases73270
Table 3: Concern about the issue of abortion by abortion policy preference

Age and abortion preference and concern

There is virtually no relationship between age and abortion preference. Only those 70 years old or older are a bit less supportive of abortion than the other age groups.

AgeLegal in all or mostIllegal in all or mostDon’t know
18-2962381
30-3960306
40-4960345
50-5960355
60-6957355
70+51407
Table 4: Abortion policy preference by age

Concern over the abortion issue is also not associated with age. Concern fluctuates across age groups but is not consistently higher among the young than it is among their elders. These results suggest it is unlikely that the abortion issue will be uniquely motivating for younger voters in the fall elections.

AgeVery concernedLess concernedDK/Ref
18-2962380
30-3946540
40-4955433
50-5966331
60-6955414
70+64324
Table 5: Concern about abortion policy by age

Partisanship and concern about abortion policy

Democrats say they are more concerned about the abortion issue, followed by Republicans while independents express less concern about the issue.

Party IDVery concernedLess concernedDK/Ref
Republican57412
Independent49492
Democrat73261
Table 6: Abortion policy concern by party identification

While Democrats express more concern about abortion, they are less likely than Republicans to say they are very enthusiastic about voting in November.

Party IDVery enthusiasticLess enthusiasticDK/Ref
Republican74260
Independent49491
Democrat60391
Table 7: Enthusiasm to vote by party identification

Enthusiasm to vote by party and abortion policy preference

Enthusiasm to vote is highest among Republicans, and equally so for pro- and anti-abortion policy preferences. Among independents, those opposed to abortion are more enthusiastic than those supporting abortion. Among Democrats who are pro-abortion, enthusiasm is less than among Republicans. There are very few Democrats who are anti-abortion, but among this group enthusiasm is low, about the same as for pro-abortion independents.

Party IDAbortion policyVery enthusiasticLess enthusiastic
RepublicanLegal all or most cases7327
RepublicanIllegal all or most cases7327
IndependentLegal all or most cases4553
IndependentIllegal all or most cases5743
DemocratLegal all or most cases6138
DemocratIllegal all or most cases4852
Table 8: Enthusiasm to vote by abortion policy preference and party identification

Conclusion

A week before the Supreme Court struck down Roe v Wade, Wisconsin Republicans were more motivated to vote than Democrats, and pro-abortion policy preference was not associated with greater enthusiasm to vote. Enthusiasm was higher among those saying abortion should be illegal in most cases while quite similar among those saying abortion should be legal in all or most cases, and for those saying it should be illegal in all cases.

The Court’s now official decision overturning Roe, and the subsequent political campaigns on the issue, may shift motivation and participation, but the leak of the draft of that opinion in May did not produce a measurable mobilization among those favoring abortion rights, contrary to some speculation.

Who *doesn’t* have an opinion about Roe v Wade?

Given its prominence in political and legal debate for nearly 50 years, you might think everyone has an opinion about Roe v Wade. But there is variation in opinion holding that may surprise you.

Most telephone surveys ask about Roe without offering a “Don’t know” option, though if the respondent says “I don’t know” or “I haven’t thought about it” that is recorded. Typically this produces around 7-10% who volunteer that they don’t have an opinion. See examples here:

Academics have had a long running debate over whether surveys should explicitly offer “or haven’t you thought much about this?” as part of the question. Doing so substantially increases the percent who say they haven’t thought about an issue.

Despite more “don’t knows” when offered explicitly, the balance of opinion among those with an opinion doesn’t seem to vary with or without the DK option A debate remains if people have real opinions but opt out via DK or if when pushed will give answers but w weak opinions.

Online surveys present a new challenge. There is no way to “volunteer” a don’t know except to skip the item, which very few do. So should you offer DK explicitly and get more, or not offer it and get very few without an opinion?

In my @MULawPoll national Supreme Court Surveys we ask about a variety of Court cases. But obviously most people don’t follow the Court in detail so I believe we must explicitly offer “or haven’t you heard enough about this?” Doing so produces some 25-30% w/o an opinion on most cases.

So is the “haven’t heard enough/Don’t know” rate really around 10% or really around 30%? Clearly wording makes a big difference, but I think it pretty clear those who opt for “haven’t heard enough” are less engaged on an issue than those who give an opinion.

What is worth looking at here is not the absolute level of “haven’t heard” but how it varies across the population. The invitation to say haven’t heard opens this door to seeing how opinion holding varies, and at the very least shows those more and less engaged with the issue.

Here is opinion on overturning Roe, with 30.6% saying they “haven’t heard at all” or “haven’t heard enough” about the case. Of those WITH an option, 71% would uphold and 29% would strike down.

But look at who is more likely to say they haven’t heard enough and who is more likley to say they have an opinion.

To my surprise, it is the OLD who are more likely to have an option. The young at twice as likely to say haven’t heard enough.

I wonder if the intense battles over abortion in the 1970s-80s were seared into the political makeup of folks now in their 60s and up in a way that the issue simply hasn’t been for those in younger ages. A less interesting answer is the young simply pay less attention.

Other differences are more intuitive.

Ideological moderats are much more likely to say “haven’t heard” than those towards the endpoints of ideology.

But there is interesting asymmetry here with the left more engaged than the right.

Independents are more likely to say not heard than partisans, but as with ideology the assymetry shows Democrats more likely to have an opinion than Republicans. The salience of Texas SB8 as well as Dobbs has probably boosted Dem concern generally.

There is a small difference between born again Christians and all other respondents, but perhaps a surprise that slightly more born again folks say they haven’t heard enough about Roe.

White respondents are a bit less likely to say “haven’t heard” than are other racial and ethnic group members.

And finally, what about gender?

Hardly any difference in opinion holding.

To return to the academic literature on whether to offer a don’t know/haven’t heard or not, there is good evidence that pushing people to respond produces similar results and statistical structure as we see among those who offer opinions when DK is an offered option.

The variation we see in choosing “haven’t heard” also reflects willingness to respond beyond simply not having thought. Good work shows this general reluctance is part of the issue of non-response as well.

Those with intense positions on abortion naturally assume that most people are similarly intense. The results here show we should be cautious in assuming “everyone” has an opinion on Roe (or other issues.) And the variation in opinion holding is interesting, sometimes surprising.

Here is the wording we use for this item with all the response categories.

A followup on age: Older respondents are also more likely to have an opinion on a case concerning the 2nd Amendment and the right to carry a gun outside the home. It may be that younger people pay less attention to issues before the Court in general, and so the age effect on opinion holding on Roe may not be the generational difference I suggest above, but simply variation in attention to the Court.

However, this logit model of saying “haven’t heard” includes controls for education and voter turnout in 2020, with age continuing to play a role. That doesn’t prove it is socialization behind the effect, but does show that age effects remain statistically significant even when a number of other variables are included in the model.

Abortion cases, the Court and public opinion

On Dec. 1, 2021 the US Supreme Court heard arguments on Dobbs, the case challenging Mississippi’s ban on abortions after 15 weeks, and arguments to use the case to strike down Roe v Wade’s protection of abortion rights.

Some polling here.

The @MULawPoll national Supreme Court Survey asked in September and in November about both cases. I combine the data here as opinion did not change significantly between the two surveys.

We offer respondents the option to say “haven’t heard anything” or “haven’t heard enough” and about 30% pick that for each question (30.6% missing in table are the not heard.)

For Roe, of those with an opinion, 71% say the court should uphold Roe, 29% say strike it down.

There is more support, and a close division, on whether the Court should uphold Mississippi’s 15 week ban in Dobbs. 28% lack an opinion (missing).

Of those with an opinion on Dobbs, 54% would uphold the 15 week ban and 46% would strike down the law.

Looking an the joint response, of those w/ an opinion about both cases, half, 49.6%, would uphold Roe and strike down Dobbs. 29% would overturn Roe and uphold Dobbs

But 19% want to see Roe remain in effect yet accept greater limitations on abortion rights w Dobbs 15 week ban. Less than 3% would strike down both Roe and Dobbs.

The willingness to support Roe but accept restrictions has been common in polls about abortion. A majority of respondents say either “legal in most circumstances” or “illegal in most” but not legal or illegal in all cases.

Pew national survey data from May 2021 is typical of responses to this question. About 60% are in the “most but not all” categories, with 25% legal in all cases and 13% saying illegal in all cases.

As for what structures opinions about Roe and about Dobbs in my @MULawPoll national surveys, it is ideology that has the strongest effect, with party a bit less strong.

This chart shows the estimated probability of favoring overturning Roe and of upholding Dobbs by ideology.

The green line shows that across ideology people are less likely to say Roe should be overturned while the higher purple line shows the greater probability they favor upholding Dobbs. Ideology has a strong effect on both but upholding Dobbs has more support than striking Roe.

A similar pattern holds across partisanship, though the slopes are less steep than for ideology.

The contrast between Dems vs Reps and for very liberal vs very conservative is quite sharp in both charts.

Finally, here are multivariate models for opinion on striking down Roe and for upholding Dobbs. Education plays more of a role in structuring Dobbs but not for opinion on Roe. Born again Christians are more opposed to Roe and in favor of Dobbs, as one would expect.

Roe Model:

Dobbs Model:

The effects of race and marital status vary between the two cases, while gender is not statistically significant in either model, nor is age.

Our divisions over abortion are unlikely to, shall I say will not, go away regardless of how the Court rules. How much the ruling changes the status quo, and what new political movements it sets in motion, will be a topic for next summer and beyond as the Court’s decision sinks in.