Don't pay too much attention to guesses about how US Supreme Court will vote on abortion rights – experts are often wrong
- Written by Lawrence Strout, Associate Professor of Communication, Mississippi State University
The U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization[1] will not be handed down until late spring or early summer 2022, when the court typically issues verdicts.
The potentially historic case challenges a Mississippi law banning most abortions after 15 weeks of pregnancy.
This case could overturn[2] or uphold[3] the 1973 Roe v. Wade[4] decision, which protects women’s right[5] to abortion before the third trimester of pregnancy.
There are other ongoing court challenges to restrict abortions in different states, including Texas[6]. But this Mississippi case is arguably the most important abortion case since 1992, when the court last reaffirmed Roe v. Wade[7].
Scholars and experts have made various bold predictions about the Dobbs case.
But, as I have told students for more than a decade while teaching mass media law[8], guesses about Supreme Court rulings are often not correct.
What the experts are predicting
Supreme Court expert Ian Millhiser has speculated that the high court will either “explicitly overrule Roe” or “eliminate it in a more backhanded way[9].” This “backhanded way” could leave Roe’s precedent intact, but weaken it so states can legally restrict abortion as they see fit.
Attorney and political commentator Sarah Isgur also has written that the most likely outcome[10] is the court overturning Roe. Abortion would then no longer be a constitutional right, and states could restrict or make abortion altogether illegal.
On the other hand, others have predicted[11] the court “will vote to uphold the central holding of Roe.”
Look instead to statistical models
Research shows statistical models are more accurate than individual experts at predicting Supreme Court decisions.
The Supreme Court Forecasting Project[13] was an academic initiative in the early 2000s that compared statistical models and independent legal experts forecasting Supreme Court decisions. The project found statistical models, on average, correctly predicted 75% of Supreme Court rulings during the 2002 term.
Legal experts[14] were correct only 59% of the time for the same term, according to the Forecasting Project.
A 2017 study[15] also used available data, like the background on cases, to retroactively predict Supreme Court decisions from 1815 to 2015. The complex model was correct 70% of the time. The project aimed to test quantitative approaches to legal predictions.
Meanwhile, there are Supreme Court followers who predict case decisions on the blog FantasySCOTUS[16].
One contributor to the site with no formal legal background correctly predicted[17] Supreme Court decisions 80% of the time from 2011 to 2013, according to FantasySCOTUS.
This appears to be the exception.
Constitutional scholar Erwin Chemerinsky has noted some of the court’s unexpected recent decisions, such as Bostock v. Clayton County[18], which found that employment discrimination laws protect people based on sexual orientation and gender identity. Cases like this make it “dangerous to make predictions[19]” about the court’s verdicts, Chemerinsky wrote.
Veteran Supreme Court reporter Ephrat Livni wrote that[20] this kind of unpredictability is a good thing, showing the court “is working as it was designed to by the Constitution.”
One reason Supreme Court forecasts are often wrong? Justices stray from the public’s conception of their political ideologies, according to Livni.
Political ideology isn’t always guaranteed
Supreme Court decisions in National Federation of Independent Business v. Sebelius[21], which considered the Patient Protection and Affordable Care Act, and Bostock v. Clayton County[22], about employment protection for gay and transgender individuals, offer examples of how justices’ perceived politics did not align with their votes.
Initial predictions on whether President Barack Obama’s health care plan would survive a legal challenge were mixed, at best.
Law school professor Adam Winkler was among the experts[23] who predicted[24] the court would overturn the Affordable Care Act. They expected that Justice Anthony Kennedy, considered politically moderate, would not vote alongside liberal justices to protect the health care plan.
Meanwhile, Stanford law professor Hank Greely correctly predicted[25] the court would uphold the Affordable Care Act. But he was not right when he suggested[26] Chief Justice John Roberts would align with Kennedy for a 6-3 vote in support of the ACA.
The court ultimately ruled 5-4, supporting the Affordable Care Act’s requirement that most Americans must purchase health insurance or face a potential penalty. Roberts authored the opinion[27] upholding ACA. This seemed to defy Roberts’ conservative ideology.
Many experts predicted[28] the high court would vote against LGBTQ rights in the Bostock v. Clayton County[29] case. The case consolidated three employment discrimination complaints made by gay and transgender individuals, and considered whether they are protected under Title VII of the 1964 Civil Rights Act.
Ultimately, Associate Justice Neil Gorsuch, whom President Donald Trump nominated in 2017, joined Roberts and the liberal justices for a 6-3 decision[30], affirming that Title VII protected people based on sexual orientation and gender identity.
Not one expert predicted Gorsuch would side with the liberal justices and write the majority opinion.
Gorsuch explained[31] the law was clear: “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”
Looking ahead to Dobbs
The court upheld Roe v. Wade in 1992, but it also set a new standard for judging abortion laws. Former justice Sandra Day O'Connor co-authored the Planned Parenthood v. Casey[32] opinion. She wrote that state laws that create an “undue burden” on women seeking abortion are illegal.
More important than the new “undue burden” standard, however, are the court’s overall reasons for upholding Roe[33].
While conceding Roe was controversial, O’Connor wrote that a woman relies on the right to abortion to “retain the ultimate control over her destiny and her body.” O'Connor also declared[34] that Roe’s uniqueness “has a dimension not present in normal cases and is entitled to rare precedential force to counter the inevitable efforts to overturn it.”
The current court would have to argue O'Connor’s reasons for upholding Roe are obsolete to justify overturning the 50-year-old precedent.
So, as anticipation grows about how the Supreme Court will vote on abortion rights, it would be wise to not become be overly concerned about expert predictions. The chances are good that the experts will not get it right.
[There’s plenty of opinion out there. We supply facts and analysis, based in research. Get The Conversation’s Politics Weekly[35].]
References
- ^ Dobbs v. Jackson Women’s Health Organization (www.oyez.org)
- ^ overturn (aul.org)
- ^ uphold (reproductiverights.org)
- ^ Roe v. Wade (tile.loc.gov)
- ^ protects women’s right (www.oyez.org)
- ^ including Texas (www.texastribune.org)
- ^ reaffirmed Roe v. Wade (www.oyez.org)
- ^ teaching mass media law (www.comm.msstate.edu)
- ^ “explicitly overrule Roe” or “eliminate it in a more backhanded way (www.vox.com)
- ^ most likely outcome (www.politico.com)
- ^ others have predicted (lawprofessors.typepad.com)
- ^ Stefani Reynolds/AFP via Getty Images (media.gettyimages.com)
- ^ The Supreme Court Forecasting Project (www.law.berkeley.edu)
- ^ Legal experts (www.law.berkeley.edu)
- ^ 2017 study (doi.org)
- ^ FantasySCOTUS (fantasyscotus.net)
- ^ correctly predicted (fivethirtyeight.com)
- ^ Bostock v. Clayton County (www.oyez.org)
- ^ dangerous to make predictions (www.abajournal.com)
- ^ wrote that (qz.com)
- ^ National Federation of Independent Business v. Sebelius (www.supremecourt.gov)
- ^ Bostock v. Clayton County (www.supremecourt.gov)
- ^ the experts (www.businessinsider.com)
- ^ predicted (www.businessinsider.com)
- ^ predicted (www.businessinsider.com)
- ^ when he suggested (www.thestreet.com)
- ^ opinion (www.supremecourt.gov)
- ^ predicted (www.businessinsurance.com)
- ^ Bostock v. Clayton County (www.supremecourt.gov)
- ^ 6-3 decision (www.supremecourt.gov)
- ^ Gorsuch explained (www.supremecourt.gov)
- ^ Planned Parenthood v. Casey (www.oyez.org)
- ^ overall reasons for upholding Roe (supreme.justia.com)
- ^ O'Connor also declared (supreme.justia.com)
- ^ Get The Conversation’s Politics Weekly (memberservices.theconversation.com)
Authors: Lawrence Strout, Associate Professor of Communication, Mississippi State University
