MILWAUKEE —Forty-nine years after the U.S. Supreme Court ruled in favor of a constitutional right to abortion, the public opposes overturning the 1973 Roe v. Wade ruling but is closely divided on limiting abortions after 15 weeks of pregnancy.
A new Marquette Law School Poll national Supreme Court survey finds that, among those with an opinion on Roe, 28% say they are in favor of overturning the decision and 72% are opposed to overturning it. The case before the Court that includes argument for overturning Roe, Dobbs v Jackson Women’s Health Organization, concerns a Mississippi law that restricts abortion after 15 weeks of pregnancy. Asked about that specific restriction, among those with an opinion, 49% favor that limitation on abortion, while 51% oppose it.
The survey was conducted Jan. 10-21, 2022, interviewing 1000 adults nationwide, with a margin of error of +/-4 percentage points.
There has been little shift in opinion on overturning Roe since September, as shown in Table 1. Opinion on Dobbs, shown in Table 2, has remained closely divided, but has shifted slightly to being more opposed to the restrictions at issue in Dobbs since September. The percentages in the tables show results among those with an opinion of each case.
Table 1: Favor or oppose overturning Roe v. Wade, among those with an opinion, Jan. 2022
Poll dates
Favor
Oppose
9/7-16/21
28
72
11/1-10/21
30
70
1/10-21/22
28
72
Table 2: Favor or oppose upholding 15-week abortion ban in Dobbs, among those with an opinion, Jan. 2022
Poll dates
Favor
Oppose
9/7-16/21
54
46
11/1-10/21
53
47
1/10-21/22
49
51
As the abortion issues before the Court have received more attention since summer, the percentage of respondents with an opinion about Roe has increased. In September, 71% said they had an opinion on reversing Roe; the number rose to 77% in January. There was little change in the number holding an opinion on Dobbs, which was 73% in September and 74% in January.
A Texas law, Senate Bill 8 (SB-8), is favored by 28% and opposed by 72% of those with an opinion about the law. SB-8 bans abortions after about six weeks of pregnancy, once fetal cardiac activity can be detected, and authorizes individual citizens to sue those who aid others in getting an abortion. In this survey, 81% say they have an opinion about this law. In November, 30% of those with an opinion favored the law, while 70% opposed it. In November, 84% had an opinion on this issue.
Views of the abortion issue differ by partisanship, with Republicans the only partisan group in which a majority favors overruling Roe v. Wade, as shown in Table 3.
Table 3: Percent who favor or oppose overturning Roe, among those with an opinion, by party identification, Jan. 2022
Party ID
Favor
Oppose
Republican
55
45
Lean Republican
36
64
Independent
31
69
Lean Democrat
9
91
Democrat
13
87
Support for upholding the 15-week ban in Dobbs draws more support across all party groups, though with a sharp gradient from Republicans to Democrats, shown in Table 4.
Table 4: Percent who favor or oppose upholding 15-week abortion ban at issue in Dobbs, by party identification, Jan. 2022, among those with an opinion
Party ID
Favor
Oppose
Republican
81
19
Lean Republican
80
20
Independent
46
54
Lean Democrat
24
76
Democrat
26
74
Partisan support for the Texas SB-8 law falls between that for overturning Roe and that for upholding the restriction at issue in Dobbs, among those with an opinion of the law, as shown in Table 5.
Table 5: Percent who favor or oppose Texas SB-8 law, among those with an opinion, by party identification, Jan. 2022
On Nov. 3, the Court heard oral arguments in New York State Rifle & Pistol Association Inc. v. Bruen. This case considers whether a New York denial of an application for concealed-carry licenses for self-defense violates the Second Amendment.
This survey asked if the respondent would favor or oppose a decision “that the Second Amendment right to ‘keep and bear arms’ protects the right to carry a gun outside the home.” Among those with an opinion, 67% say they favor such a ruling, while 33% are opposed. In September, 63% of those with an opinion favored such a ruling and 37% were opposed. In this January survey, 75% had an opinion on this issue, whereas 70% had an opinion in September.
Views on the right to possess a gun vary with partisanship, with overwhelming support among Republicans and only minority support among Democrats, as shown in Table 6.
Table 6: Percent who favor or oppose right to carry a gun, by party identification, among those with an opinion, Jan. 2022
Party ID
Favor
Oppose
Republican
94
6
Lean Republican
94
6
Independent
70
30
Lean Democrat
47
53
Democrat
36
64
Those with a gun in the household are much more supportive of a right to carry a gun outside the home, as shown in Table 7. Those without a gun in the household are about evenly split, while a large majority of gun householders support a right to carry. Gun owners are also more likely to have an opinion on the issue, 79%, than are those without guns in their home, 72%.
Table 7: Percent who favor or oppose right to carry a gun, by whether there is a gun in the household, among those with an opinion, Jan. 2022
On Jan. 13, the Court stopped the federal Occupational Safety and Health Administration (OSHA) from enforcing a rule that would have mandated companies of more than 100 employees to require employees to either be vaccinated or be regularly tested for COVID19. The Court held the rule to be likely unlawful and stayed its enforcement pending further consideration of challenges to the mandate in the U.S. Court of Appeals for the 6th Circuit. At the same time, the Court ruled that the federal government could require vaccination of health care workers at facilities that receive Medicare or Medicaid funding.
Asked about these policies, 54% favor the OSHA requirement, with 45% opposed, while 61% favor requiring vaccinations for health care workers and 38% are opposed.
Approval of the U.S. Supreme Court remains evenly divided, with 52% approving and 46% disapproving. Approval declined from 60% in July to 49% in September and has changed little since then. The trend in approval of the Court since 2020 is shown in Table 8.
Table 8: Approval of the Supreme Court, Sept. 2020-Jan. 2022
Poll dates
Approve
Disapprove
9/8-15/20
66
33
7/16-26/21
60
39
9/7-16/21
49
50
11/1-10/21
54
46
1/10-21/22
52
46
Approval has fluctuated among Democrats after falling sharply in September, while there was little recent change among independents and Republicans. All partisan groups have lower approval now than in September 2020. Table 9 shows approval by party over five Marquette Law School Poll surveys since September 2020.
Table 9: Approval of the Supreme Court by party, Sept. 2020-Jan. 2022
Views of the basis of decisions differ if the respondents are asked about what “motivates Supreme Court justices’ decisions” or if, instead, they are asked a question worded with a more institutional focus about whether “the Supreme Court is mainly motivated” by politics or by the law. In this survey, we asked a randomly selected half of the respondents one of this pair of questions at the beginning of the survey, before any other questions except how much attention the respondent pays to politics. This minimizes the extent to which the respondent has been primed to think about the Court. So half of this beginning-of-survey half got one question, and the other half of this early-survey half got the other question.
When asked about the justices’ motivation, 42% of this beginning-of-survey group say the justices are mainly motivated by politics and 58% say mostly by the law.
In contrast, when asked about the Court, 53% of this beginning-of-survey group say the Supreme Court is mainly motivated by politics and 47% say it is mainly motivated by the law.
Then, the other half (again, randomly selected) of the survey respondents were asked one (or the other) of these two questions much later in the survey, after questions about favorability of the justices, ideological placement of the Court, and items about specific cases concerning abortion and gun rights among others. When asked later in the survey, the perception of the motivations for decisions as being politics increases for the wording of both questions—the one speaking of the “justices” and the one focused on the “Court” as a single body.
When asked late in the survey, 55% say the justices are mainly motivated by politics and 45% say mostly by the law.
When asked late in the survey about the motivation of the Court as a whole, 60% say the Court is mainly motivated by politics and 40% say mostly by the law.
The implication of this finding is that views of the Court as a single institution provoke the perception of a more political body—and that perception is increased after respondents are required by many questions to think about the Court. In contrast, when the focus is on the justices, respondents are more likely to believe “the law” is the motivation of the justices, although this percentage declines (to a minority) after a numerous questions have required the respondent to think more about justices and cases before the Court, whereupon there is approximately an even split in impressions of motivations for decisions.
This reflects some difference in how citizens think about the motivations of individual justices and how they think of the Court as a whole. It also demonstrates that when people are prompted to think about the controversial cases before the Court, the percentage who see political motivations for both the justices and the institution increases.
Table 10 summarizes the results concerning the basis of decision.
Table 10: Basis of decision, by question focus and placement in survey, Jan. 2022
The public is not familiar with most justices. Only 21% are able to express an opinion of Justice Stephen Breyer. The highest percentage, 55%, give an opinion about Justice Clarence Thomas, while 38% offer an opinion of Chief Justice John Roberts.
The three most recent appointees to the Court, Justices Neil Gorsuch, Brett Kavanaugh, and Amy Barrett, have the lowest net favorable ratings, reflecting contentious confirmations and the polarized environment of contemporary Court appointments. Recognition and opinion of the justices are shown in Table 11.
Table 11: Recognition and favorability ratings of justices, Jan. 2022
Justice
Able to rate
Net favorability
Favorable
Unfavorable
Samuel Alito
26
6
16
10
Amy Barrett
46
-2
22
24
Stephen Breyer
21
7
14
7
Neil Gorsuch
29
1
15
14
Elena Kagan
28
8
18
10
Brett Kavanaugh
53
-11
21
32
John Roberts
38
12
25
13
Sonia Sotomayor
50
20
35
15
Clarence Thomas
55
5
30
25
The public structures its views of the justices in ways that are consistent with the respondent’s partisan and ideological views, the party of the appointing president, and the common ideological characterization of the justices.
With the sole exception of Chief Justice Roberts, net favorability aligns with the partisanship of the respondent and the party of the president who appointed the justice, as shown in Table 12. This pattern holds for the less well-known justices (Breyer, Alito, Kagan and Gorsuch) and for the more widely known justices (Sotomayor, Barrett, Thomas, and Kavanaugh). Only Roberts is viewed more favorably than unfavorably by each partisan group.
Table 12: Recognition and favorability ratings of justices, by party identification of the respondent, Jan. 2022
Justice
Party ID
Able to rate
Net favorability
Favorable
Unfavorable
Samuel Alito
Republican
28
20
24
4
Samuel Alito
Independent
21
7
14
7
Samuel Alito
Democrat
31
-11
10
21
Amy Barrett
Republican
56
42
49
7
Amy Barrett
Independent
39
-3
18
21
Amy Barrett
Democrat
48
-38
5
43
Stephen Breyer
Republican
20
-4
8
12
Stephen Breyer
Independent
16
6
11
5
Stephen Breyer
Democrat
27
19
23
4
Neil Gorsuch
Republican
34
28
31
3
Neil Gorsuch
Independent
23
-1
11
12
Neil Gorsuch
Democrat
35
-19
8
27
Elena Kagan
Republican
27
-11
8
19
Elena Kagan
Independent
22
8
15
7
Elena Kagan
Democrat
37
27
32
5
Brett Kavanaugh
Republican
59
43
51
8
Brett Kavanaugh
Independent
42
-12
15
27
Brett Kavanaugh
Democrat
62
-52
5
57
John Roberts
Republican
42
20
31
11
John Roberts
Independent
33
9
21
12
John Roberts
Democrat
40
10
25
15
Sonia Sotomayor
Republican
49
-25
12
37
Sonia Sotomayor
Independent
42
18
30
12
Sonia Sotomayor
Democrat
61
57
59
2
Clarence Thomas
Republican
61
43
52
9
Clarence Thomas
Independent
48
8
28
20
Clarence Thomas
Democrat
59
-29
15
44
Views of the justices also align with the respondent’s ideological self-placement, with conservative respondents consistently more favorable to justices usually considered conservative, while liberal respondents are more favorable to those considered liberal justices. These results are shown in Table 13. Roberts is again the exception, viewed rather favorably by the middle categories of ideology but less so among both very conservative and very liberal respondents.
Table 13: Recognition and favorability ratings of justices, by respondent ideological self-placement, Jan. 2022
Justice
Ideology
Able to rate
Net favorability
Favorable
Unfavorable
Samuel Alito
Very conservative
35
21
28
7
Samuel Alito
Somewhat conservative
27
23
25
2
Samuel Alito
Moderate
20
6
13
7
Samuel Alito
Somewhat liberal
30
-16
7
23
Samuel Alito
Very liberal
35
-7
14
21
Amy Barrett
Very conservative
60
54
57
3
Amy Barrett
Somewhat conservative
56
38
47
9
Amy Barrett
Moderate
33
-5
14
19
Amy Barrett
Somewhat liberal
55
-43
6
49
Amy Barrett
Very liberal
58
-48
5
53
Stephen Breyer
Very conservative
24
-12
6
18
Stephen Breyer
Somewhat conservative
20
2
11
9
Stephen Breyer
Moderate
17
7
12
5
Stephen Breyer
Somewhat liberal
27
19
23
4
Stephen Breyer
Very liberal
24
18
21
3
Neil Gorsuch
Very conservative
40
38
39
1
Neil Gorsuch
Somewhat conservative
28
20
24
4
Neil Gorsuch
Moderate
22
0
11
11
Neil Gorsuch
Somewhat liberal
36
-18
9
27
Neil Gorsuch
Very liberal
41
-29
6
35
Elena Kagan
Very conservative
31
-27
2
29
Elena Kagan
Somewhat conservative
28
-6
11
17
Elena Kagan
Moderate
23
9
16
7
Elena Kagan
Somewhat liberal
34
30
32
2
Elena Kagan
Very liberal
35
33
34
1
Brett Kavanaugh
Very conservative
64
62
63
1
Brett Kavanaugh
Somewhat conservative
55
35
45
10
Brett Kavanaugh
Moderate
41
-17
12
29
Brett Kavanaugh
Somewhat liberal
66
-54
6
60
Brett Kavanaugh
Very liberal
65
-59
3
62
John Roberts
Very conservative
54
6
30
24
John Roberts
Somewhat conservative
40
18
29
11
John Roberts
Moderate
30
14
22
8
John Roberts
Somewhat liberal
39
15
27
12
John Roberts
Very liberal
40
0
20
20
Sonia Sotomayor
Very conservative
54
-48
3
51
Sonia Sotomayor
Somewhat conservative
49
-23
13
36
Sonia Sotomayor
Moderate
41
29
35
6
Sonia Sotomayor
Somewhat liberal
62
54
58
4
Sonia Sotomayor
Very liberal
59
57
58
1
Clarence Thomas
Very conservative
64
50
57
7
Clarence Thomas
Somewhat conservative
63
43
53
10
Clarence Thomas
Moderate
48
4
26
22
Clarence Thomas
Somewhat liberal
60
-28
16
44
Clarence Thomas
Very liberal
51
-39
6
45
About the Marquette Law School Poll
The survey was conducted Jan. 10-21, 2022, interviewing 1000 adults nationwide, with a margin of error of +/-4 percentage points. Interviews were conducted using the SSRS Opinion Panel, a national probability sample with interviews conducted online. The detailed methodology statement, survey instrument, topline results, and crosstabs for this release are available at https://law.marquette.edu/poll/category/results-and-data/. Some items from this survey are held for later release.
Wording of questions about possible future Supreme Court decisions: These items do not attempt to exactly frame the particular issues in specific cases but rather address the topic in more general terms.
Do you favor or oppose the following possible future Supreme Court decisions, or haven’t you heard enough about this to have an opinion? … Rule to uphold a state law that (except in cases of medical emergencies or fetal abnormalities) bans abortions after the 15th week of pregnancy.