Roe, Dobbs, and the Supreme Court’s Crisis of Legitimacy
Public trust in the Supreme Court has collapsed.[1] Only 20% of Americans believe it is neutral. Among Democrats, the figure drops to 10%. For Republicans, it’s just 29%.[2] Once regarded as the least political branch, the Court now finds itself at the center of America’s culture wars and constitutional crisis.
What accounts for this steep decline in confidence? While there are many contributing factors, three stand out. Together, they reveal a Court that appears increasingly driven by ideology, divided along predictable lines, and fundamentally misunderstood by the very public it is meant to serve.
1. The Overturning of Roe v. Wade
Let’s be candid: Roe v. Wade is almost universally regarded by constitutional scholars as doctrinally flawed.[3] Even among those who support abortion rights, few defend the reasoning of the majority opinion. While well-intentioned and normatively appealing to many, Roe had little grounding in the Constitution’s text. Instead, it rested on the vague “penumbras” introduced in Griswold v. Connecticut, which allowed the Court to infer unenumerated rights from implied constitutional principles.[4]
Understanding Roe requires jurisprudential gymnastics—creative, perhaps, but ultimately constitutionally suspect. Building on Griswold, the Court relied on the doctrine of substantive due process to hold that the Fourteenth Amendment’s Due Process Clause protected a fundamental right to privacy—one that encompassed a woman’s right to terminate a pregnancy.[5] This interpretation stretched the word “liberty” far beyond its procedural guarantees and into a realm of judicially created rights. As Harvard Law Professor Laurence Tribe once remarked, “One of the most curious things about Roe is that, behind its own verbal smokescreen, the substantive judgment on which it rests is nowhere to be found.”[6]
As Edward Lazarus, former law clerk to Justice Harry Blackmun, stated:
I believe that Roe is a jurisprudential nightmare… As a matter of constitutional interpretation and judicial method, Roe borders on the indefensible. I say this as someone utterly committed to the right to choose, as someone who loved Roe’s author like a grandfather.[7]
Simply put, Roe was the original sin—a prime example of legal reasoning shaped to reach a desired political result. But in Dobbs v. Jackson Women’s Health Organization, the Court committed what many see as the mortal sin: it overturned Roe after nearly fifty years of precedent, delivering an equally ideological and arguably more damaging blow to the Court’s institutional legitimacy.[8]
Writing for the majority, Justice Alito declared that Roe had no constitutional foundation and that abortion policy should be left to the democratic process.[9] In doing so, however, the principle of stare decisis—long touted as essential to judicial restraint and stability—was reduced to a doctrine of convenience rather than conviction. That the opinion was authored by Justice Alito, a long-standing critic of Roe, only deepened the perception that this was a political—not a legal—decision.
Why was Dobbs as problematic as Roe? Because both decisions suffer from the same core defect: they were driven by ideology rather than constitutional principle. In the fifty years between Roe and Dobbs, the only meaningful change was the composition of the Court. Justice Brett Kavanaugh replaced Anthony Kennedy. Amy Coney Barrett replaced Ruth Bader Ginsburg. With that shift, the Court’s center of gravity moved rightward—and so did its interpretation of rights.
The result? A right created from thin air in Roe disappeared into thin air in Dobbs. In both cases, the Court imposed its ideological will while cloaking it in the language of law. As Justice Byron White once wrote in dissent, Roe was an “exercise of raw judicial power.”[10] Ironically, so was Dobbs. The Constitution hadn’t changed. The doctrine hadn’t changed. Only the justices had.
The consequences of this shift are profound. It signals to the public that constitutional rights are not stable or enduring. Instead, they hinge on who wins elections, who nominates justices, and which ideological bloc holds sway. When the Court behaves this way, it ceases to be an institution of law and becomes an instrument of power.
Justice Kavanaugh’s concurring opinion in Dobbs only sharpened this perception. He claimed the Court was merely “returning to neutrality” on abortion.[11] But how can it be neutral to overturn a half-century-old precedent in a way that aligns perfectly with the preferences of the current majority? That’s not neutrality—it’s control.
In this sense, Roe and Dobbs are not opposites—they are mirror images. Both reflect a Court that has substituted policy preferences for constitutional reasoning. And both have inflicted lasting damage on the Court’s legitimacy in the eyes of the American people.
2. The Consistent—and Predictable—Ideological Splits
A second reason for the Court’s declining credibility is the growing perception that it has become a super-legislature, deeply divided and ideologically entrenched. In the most consequential cases—those involving affirmative action, voting rights, religious liberty, gun control, and environmental regulation—the outcome is often known before the first oral argument is heard. It’s no longer about legal reasoning. It’s about arithmetic.
This predictability isn’t just anecdotal; it’s structural. Term after term, the six conservative justices coalesce around a textualist or originalist methodology that tends to favor deregulation, state sovereignty, and expansive religious freedoms. The three liberal justices, by contrast, tend to emphasize precedent, evolving norms, and real-world consequences—often in defense of vulnerable or marginalized communities.
When the result in a case can be forecast simply by identifying the issue, the Court loses its credibility. The public views decisions as the product of partisan alignment, not principled interpretation. Judicial philosophy begins to look like political allegiance, and the recognition—or sustainability—of constitutional rights appears more a product of luck, not law.
Worse still is the rise of the “shadow docket”—unexplained, unsigned orders that increasingly resolve significant issues without full briefing or oral argument. From pandemic restrictions to immigration policy to emergency challenges to state abortion laws, these decisions often fall along the same 6–3 fault line, reinforcing the perception that ideology trumps process.
As Justice Elena Kagan warned, “If, over time, the Court loses all connection with the public and with public sentiment, that’s a dangerous thing for a democracy.”[12] And when its decisions read less like impartial adjudication and more like political declarations, that danger becomes reality.
3. The Public’s Misperception of the Court’s Role
The third reason the Court’s credibility is eroding is subtler, but no less consequential: a widespread misunderstanding of what the Court is—and is not—supposed to do. Too many Americans view the Court as a moral tribunal, a political referee, or a guardian of their preferred outcomes. When it falls short of those expectations, the result is disappointment, anger, and erosion of trust.
But the Supreme Court is not designed to deliver popular or even just outcomes. It is not a policymaking body. It is a constitutional court, tasked with interpreting legal texts and enforcing the rule of law—even when doing so is unpopular or counter-majoritarian. Its legitimacy depends not on popularity, but on fidelity to constitutional principle and legal reasoning.
This fundamental misunderstanding is fueled by multiple sources: politicized confirmation hearings that resemble campaign rallies, media coverage that reduces complex decisions to partisan soundbites, and elected officials who frame judicial rulings as existential threats or political victories.
Even legal education has, at times, failed to instill a nuanced understanding of judicial restraint, constitutional structure, and the appropriate limits of judicial power. The result is that every controversial decision becomes a lightning rod—celebrated as righteous by one half of the country, condemned as illegitimate by the other. In such an environment, the very idea of the Court as an impartial arbiter becomes untenable.
This is not sustainable. In a functioning democracy, there must be at least one institution that commands respect not because of its outcomes, but because of its integrity. If that institution loses public confidence, the rule of law itself begins to fracture.
Conclusion
The Supreme Court was never meant to be popular. As Alexander Hamilton wrote in Federalist No. 78, the judiciary has “neither force nor will, but merely judgment.” Its power depends entirely on its legitimacy—on the belief that its decisions, even if wrong, are principled, reasoned, and above politics.
But that belief is fading. When the Court overrules precedent to reach ideological ends, when its decisions are preordained by predictable alignments, and when the public confuses constitutional adjudication with political activism, legitimacy erodes. And once lost, legitimacy is hard to regain.
The path forward will not be easy. It will require humility from the justices, honesty from political leaders, and better civic education for the public. It will require a renewed commitment to the idea that constitutional law is not simply politics by another name.
Until then, the Supreme Court will remain not just unpopular—but untrusted. And without trust, even judgment has no force.
[1] John Baker, Poll Reveals Supreme Court’s Approval Rating June 22, 2025), available at: Poll Reveals Supreme Court’s Approval Rating.
[2] See id.
[3] 410 U.S. 113 (1973).
[4] 381 U.S. 479 (1965).
[5] 410 U.S. 113 (1973).
[6] Houston Christian University, The End of a Nightmare: The Supreme Court Overturns Roe v. Wade (Dec. 16, 2022), available at: The End of a Nightmare. The U.S. Supreme Court Overturns Roe v. Wade | Houston Christian University.
[7] Id.
[8] 597 U.S. 215 (2022).
[9] See id.
[10] 410 U.S. 113 (1973) (White, J., dissenting).
[11] 597 U.S. 215 (2022) (Kavanaugh, J., concurring).
[12] Debra Cassens Weiss, Kagan See Danger to Democracy if Supreme Court ‘Loses All Connection’ to Public Sentiment (July 22, 2022), available at: Kagan sees danger to democracy if Supreme Court ‘loses all connection’ with public sentiment.