Empirically Evaluating the Counter-Majoritarian Difficulty: Public Opinion, State Policy, and Judicial Decisions Before Roe v. Wade

Abstract

A central question in the normative and positive evaluation of the judiciary is the extent to which courts are institutions. In this paper I examine the relationship between public opinion, state policy, and judicial review to conduct a quantitative evaluation of the counter-majoritarian difficulty, by examining the role of courts in adjudicating constitutional challenges to state abortion statutes in the period before the Supreme Court decided Roe v. Wade. Using new measures of judicial review and state-level opinion on abortion reform, I find considerable heterogeneity in the relationship between opinion and policy -- in many states where sizable majorities favored reform, the status quo remained in place. I then find a strong correlation between public opinion and the likelihood of judicial invalidation of state abortion statutes. Judicial decisions striking down state statutes tended to occur in states where support for reforming policy was high, and courts did not strike down statutes in states where majority opinion was firmly in favor of the status quo. These results contribute to a growing body of evidence that suggests that the traditional view of judicial review as being fundamentally does not adequately capture the political realities in which courts operate.