Empirically Evaluating the Countermajoritarian Difficulty: Public Opinion, State Policy, and Judicial Review before Roe v. Wade

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Abstract:

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 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 that 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 majorities firmly supported the status quo. These results contribute to a growing body of evidence that suggests that the traditional view of judicial review as being fundamentally counter-majoritarian does not adequately capture the political realities in which courts operate.

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Last updated on 09/04/2019