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Analysis: Does it matter that most Americans want to keep Roe v. Wade?

1) While the decision isn’t final, it now looks quite likely that the court will invalidate Roe.

2) That decision would run directly counter to what a majority of the American public says it wants when it comes to Roe.

Which raises a simple question: Does that seeming contradiction matter?

The short answer is, well, no. Supreme Court justices are appointed, not elected. And they serve for as long as they want, not two or four or six years.

The court has long sought to portray itself as apart from politics.

“Judges are like umpires,” John Roberts, now the chief justice of the Supreme Court, said during his confirmation hearing in 2005. “Umpires don’t make the rules, they apply them… They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ballgame to see the umpire.”

That’s never been totally true. And it’s even less true for the modern court, which has been called on to decide a presidential election, the constitutionality of the Affordable Care Act and the legality of same-sex marriage over just the last two decades.

The Supreme Court, like every institution in America, exists in context. And that context is of a deeply polarized nation in which its highest court is the ultimate arbiter.

The context — as understood via public opinion — around Roe is quite clear: A majority of the country does not want it overturned.

In a Washington Post/ABC News poll conducted last week, 54% of Americans said the Supreme Court should uphold Roe, while 28% said the court should overturn it. (Another 18% had no opinion either way.)
And a CNN survey in January found that 69% of Americans said they would not like to see the Supreme Court overturn Roe, compared to 30% who said they would.

Those numbers will not, fundamentally, alter how the nine justices on the court will vote on the issue.

But what they suggest is that if the court does overturn Roe, it will be going directly against a view that a solid majority of the country not only holds now, but has held for decades.

And that is a recipe for political combustion heading into the 2022 midterm elections.

The Point: The Supreme Court is meant to exist outside of politics. But the reality falls well short of that — especially in recent years.

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