In Dred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857) the US Supreme Court ruled that slavery was legal.

In Plessy v. Ferguson, 163 U.S. 537 (1896), the US Supreme Court ruled that segregation was legal.

In Obergefell v. Hodges, 576 U.S. 644 (2015), the US Supreme Court ruled that same sex marriage was a constitutional right.

In all these cases, it seems that the Supreme Court makes its ruling only according to the prevailing social norm.

It would be unthinkable for the US Supreme Court to make the Obergefell decision in 1800, for example.

So what exactly is the role of the US Supreme Court? Is it to make decisions based on timeless, universal principles?

Or is it simply to rubberstamp the prevailing social consensus?

  • 16
    Roe v Wade was not the "social concensus" in any way.
    – Trish
    Apr 5, 2022 at 13:01
  • 6
    All of the decisions cited in the question were quite controversial in their day, particularly Obergefell Apr 5, 2022 at 17:08
  • 4
    Legal reasoning is a real thing, but it is not like mathematical reasoning. Anf even in mathematics there are longstanding disagreeableness. Look p, for eampe ;The axiom of choice" and "the continuum problem". Legal reasoning is a set of metofs of getting from agreed principles to specific conclusions. But judges and scholars do not always agree on which of the methods is most important in a specific case, nor do they alwasy agree on the principles to start from. Apr 5, 2022 at 23:45
  • 3
    @SlowMagic "wouldn't we expect all nine justices to be like nine mathematicians and converge to a unanimous agreement on every case?" DavidSiegel is right. Also, keep in mind that SCOTUS takes only about 80 cases out of 5000 requests to take cases each year. SCOTUS mostly takes cases where senior U.S. Court of Appeals judges and/or state supreme court justices are in irreconcilable disagreement. Almost all of the cases it takes are the closest/hardest cases, often cases of first impression on issues never before definitively resolved before.
    – ohwilleke
    Apr 6, 2022 at 0:17
  • 3
    This xkcd comic about the popular approval of interracial and same-sex marriage seems relevant: xkcd.com/1431
    – dbmag9
    Apr 6, 2022 at 13:19

2 Answers 2


Does the Supreme Court simply rubberstamp the prevailing social consensus?


Structurally, The Supreme Court Is Designed To Lag Behind Social Consensus

U.S. Supreme Court justices are political appointees with discretion over how laws are interpreted and enforced in the U.S. that cannot be reviewed by any other body, in the case of constitutional law, and can only be second guess by Congress and the President acting together, in the case of statutory law.

Since U.S. Supreme Court justices serve for life, they tend to be lagging indicators of the political preferences of past Presidents.

Plessy v. Ferguson was influenced by post-Reconstruction judicial appointments trying to salvage what it could from the end of the slavery regime for former slave states, although Congress could have overruled it with new legislation if Senators from Southern states hadn't filibustered that kind of legislation in the U.S. Senate.

Still, while the law changes slowly, and the U.S. Supreme Court is often a lagging indicator of the prevailing social consensus, it is not frozen in time either, both because legal norms change over time, however slowly, because statutes and constitutional amendments change the environment in which the U.S. Supreme Court operates, and because sometimes the law commands them to do so.

For example, in 8th Amendment jurisprudence (the prohibition against cruel and unusual punishments), the "unusual" part of "cruel and unusual" has always incorporated prevailing social consensus, by design and by virtue of the express constitutional text.

Precedent Still Matter

Precedents also matter, however. U.S. Supreme Court Justices, while they may be influenced by a political ideology that had a lot to do with why they were nominated in the first place, are not simply legislators in robes.

While the U.S. Supreme Court is well known for its partisan split votes on close political issues, there are many areas of law where the U.S. Supreme Court is still far less partisan than elected officials, and often, split decisions in the U.S. Supreme Court on less politically charged issues are not along partisan lines. U.S. Supreme Court Justices cross partisan lines far more often than elected officials do, and the amount of partisan line crossing that takes place in courts below the Supreme Court that have a legal duty to follow the precedents of courts superior to them is even greater.

At the time of Dred Scott and until the 13th Amendment was passed in the wake of the U.S. Civil War, slavery was legal and its legality had never been seriously doubted in U.S. legal precedents. Precedents at the time, including a series of highly sensitive legislative and constitutional compromises already agreed to by other parts of the government, supported this ruling, whether or not it was good policy.

Obergefell v. Hodges, followed a nearly unanimous groundswell of support for the position that the U.S. Supreme Court ultimately took from state courts and lower federal courts, applying a variety of precedents already in place going back to Griswold v. Connecticut, 381 U.S. 479 (1965), which affirmed that the fundamental rights found in the Fourteenth Amendment's Due Process Clause "extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs," but the "identification and protection" of these fundamental rights "has not been reduced to any formula," and Loving v. Virginia, 388 U.S. 1 (1967), invalidating laws prohibiting interracial marriage. The lesser known cases of Zablocki v. Redhail, 434 U.S. 374 (1978) (invalidating a Wisconsin law limiting the right of non-custodial parents to remarry), and Turner v. Safley, 482 U.S. 78 (1987) (allowing prison inmates to marry without state permission) had also established a constitutional right to marry. In Romer v. Evans, 517 U.S. 620 (1996), the Supreme Court struck down a Colorado law that barred local governments from protecting gay rights. In 2003, the Supreme Court in Lawrence v. Texas struck down Texas’ sodomy law - and in turn invalidated sodomy laws in 13 other states - making private, consensual, adult sexual activity between same-sex couples legal across the U.S. In United States v. Windsor (2013), the Supreme Court held that a same sex couple legally married in Canada could not be denied the federal estate tax spousal deduction invalidating Section 3 of the Defense of Marriage Act as unconstitutional. The same day, in Hollingsworth v. Perry (2013), the Supreme Court held that California Proposition 8 (note that a majority of voters in this very liberal state passed this measure in 2012 suggesting that allowing same sex marriage was not the prevailing social consensus) which prohibited California from recognizing same sex marriages lawfully entered into after a couple prevailed in a 2009 court fight to secure same sex marriage rights under prior California law was unconstitutional. In 2015, SCOTUS responded not to a public opinion social consensus, but to a legal consensus among U.S. appellate judges driven by its own precedents.

Many states in which judges struck down same sex marriage bans before the U.S. Supreme Court took up the issue did so in states where same sex marriage was not popular, because fifty years of accumulated precedents from 1965 to the present strongly pointed in that direction. As a result, on the eve of the Obergefell decision, 37 states and the District of Columbia already recognized same-sex marriage, and only 13 states had bans. Those bans were mostly struck down as a result of lower courts interpreting existing U.S. Supreme Court precedents like the ones mentioned above, and as a result of legislators seeing the writing on the wall and wanting to take credit for the inevitable.

The act of nationalizing the right to same-sex marriage also reflected the reality that even though the constitution allocated regulation of marriage to the states rather than the federal government, as a general matter, that allowing a particular couple's marriage to be recognized in some U.S. states and not others, was basically unworkable in a country with freedom of travel between states.

SCOTUS Often Establishes The Prevailing Social Consensus

Also, while sometimes the U.S. Supreme Court does give official recognition to the prevailing social consensus (which is closely related to what becomes law by one means or another anyway), perhaps more often, a U.S. Supreme Court ruling establishes and changes the prevailing social consensus.

Support for interracial marriage in opinion polls, which wasn't terribly high when Loving v. Virginia was decided in 1967, soared after the U.S. Supreme Court declared it to be a matter of constitutional law.

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A question from a 1968 international Gallup poll underscores the extent of U.S. opposition to interracial marriage during this period. This question, which asked Americans and those in 12 other nations whether they personally approved or disapproved of marriage between whites and nonwhites, found even broader U.S. opposition than the 1965 question.

More than seven in 10 Americans (72%) disapproved of white-nonwhite marriages, in contrast with only 21% of residents in Sweden, 23% in the Netherlands, 25% in France, 34% in Finland, 35% in Switzerland and 36% in Greece. Opposition outweighed support in Austria, Canada, West Germany, Norway, Uruguay and Great Britain, but to a far lesser extent than in the U.S. The 1965 and 1968 U.S. reactions to interracial marriage appear contradictory, but this is because each question measures a different dimension of public opinion. The 1965 question asks for people's views on the legality of interracial marriage -- whether it should be a crime -- whereas the 1968 question merely asks Americans whether they personally approve.

Americans' personal views on interracial marriage eventually changed, but it took decades for majority support to emerge. In 1978, more than a decade after the Loving case, only 36% of Americans approved, while 54% still disapproved. Not until the 1990s did public approval cross the 50% threshold, registering 64% in 1997. Gallup's latest update, in 2013, shows 87% approving.


Support for same sex marriage has followed a similar pattern after Obergefell v. Hodges was decided.

Roe v. Wade (creating a constitutional right to medical abortion) and Griswold before it (creating a constitutional right to contraception and clearly establishing the concept of substantive due process rights to privacy), likewise dramatically changed public opinion on these issues.

So, while the U.S. Supreme Court is sometimes a lagging indicator of a social consensus that is already prevailing, its moral authority and the inability of any other political actors to overcome the legal force of its rulings has also caused it to be a major driver of social consensus going forward.

For example, until Brown v. Board of Education (1954), Plessy v. Ferguson was widely accepted as a legally fair standard and the support really only entirely collapsed when the U.S. Supreme Court said otherwise. Indeed, Brown v. Board of Education probably was pivotal in shifting public opinion in a manner that led to the adoption of the Civil Rights Acts of 1964 that finally put teeth into the political resolve to end racial discrimination that had begun in earnest in the Reconstruction era.

  • 1
    Does the US Supreme Court ever invoke 'what a reasonable person' would think? Australian courts use this practice (example). The problem with using a 'reasonable person' as the standard is that history shows a "reasonable person" isn't as reasonable as we may think. In that way, Australian courts approve the prevailing social consensus, and disapprove it's complement. I know the question isn't about Aus courts, but thought it was interesting to note
    – stevec
    Apr 5, 2022 at 22:27
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    @stevec The standard of what a "reasonable person" would do is frequently appealed to by US courts, particularly in Tort law. it is not as common in US Supreme Court cases, but has been used there. The question of what a "reasonable officer" would do has figured in a number of search and seizure and probable cause cases. Apr 6, 2022 at 0:00
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    @stevec Most of the reasonable person tests (but as DavidSiegel notes, not all) arise under state law, while the U.S. Supreme Court, with only a handful of very narrow exceptions, limits itself to questions of federal law that has far fewer reasonable person tests, and even when those arise under federal law more often they are handled by intermediate appellate courts as they are rarely issues of law upon which national precedents are required due to some sort of conflict between different jurisdictions state and federal, supervised by SCOTUS.
    – ohwilleke
    Apr 6, 2022 at 0:10
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    If I recall correctly, that does not even represent the low point of support for interracial marriage! Weren't there polls from a decade or two earlier where well over 90% disapproved?
    – Obie 2.0
    Apr 6, 2022 at 4:36
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    Nitpick: In Hollingsworth v. Perry, SCOTUS did not hold that Prop 8 was unconstitutional. Instead, they held that the Ninth Circuit should have dismissed the appeal for lack of jurisdiction, because the appellant-intervenors were not the state and did not have standing. SCOTUS never reached the merits of that case.
    – Kevin
    Apr 6, 2022 at 5:50

The US Supreme Court, like other common law jurisdictions, is to give effect to the current law of the land

Common law courts must give effect to the will of the people by interpreting enacted and unenacted law. Which means they interpret to law to the society that exists today, not to the society that existed when the law was created.

That means that, subject to hierarchy, they can decide that a previous decision was wrong or is no longer appropriate to current circumstances. However, where the people, through the legislature, have decided something definitively, then, until the people change their mind, that will be the law of the land. Of course, the court gets to decide what is definitive.

  • If the Supreme Court issues a decision which is contrary to the Supremacy Clause, the Constitution does not provide any remedy for the parties involved, but nor would it absolve lower courts of their obligation to uphold the Supremacy Clause even in the face of contrary court precedents.
    – supercat
    Apr 6, 2022 at 17:31
  • @supercat the lower court would be bound to follow the (wrong) precedent if they couldn’t distinguish the case. This happens all the time with judgements expressing doubts about the precedent that must be followed - that’s often what triggers appeals. In the meantime, if the Supreme Court says it complies with the Constitution then it does, even if nobody else thinks so.
    – Dale M
    Apr 6, 2022 at 22:31
  • Is the Constitution the Supreme Law of the Land or not? If so, any Supreme Court ruling which is contrary to the Constitution would be by definition illegitimate. I know that people like to pretend that Supreme Court rulings are the Supreme Law of the Land, but that could only be true if either (1) the Supreme Court never issues illegitimate rulings, or (2) the Constitution isn't the Supreme Law of the Land. Do you think either of those latter conditions applies?
    – supercat
    Apr 6, 2022 at 23:27
  • @supercat of course the Constitution is the supreme law and it says (Article III ss1&2) that the Supreme Court is the people who decide what the Constitution means.
    – Dale M
    Apr 7, 2022 at 0:32
  • The Supreme Court's job is to say what the Constitution means. That doesn't preclude the possibility that the Supreme Court might fail to do its job and make false statements about the Constitution, nor would it render the Supreme Court's actions legitimate except insofar as the Constitution wouldn't provide any further remedies for the parties appearing before the Court.
    – supercat
    Apr 7, 2022 at 5:14

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