The decisions of the U.S. Supreme Court are seldom without controversy, and American history has seen fierce public debate over the Court’s proper role in the democracy. With lifetime tenure, justices are in principle immune from the vagaries of public opinion. But new issues inevitably come to the Court because of emerging trends in society, and evolving norms and values have always been part of these cases.
As the Court continues to weigh momentous cases on important social issues, the history of past decisions, such as Roe v. Wade, continue to be contemplated by legal scholars. Did the Court move too “fast”? How should decisions on evolving social issues be adjudicated in light of prevailing views in society?
In 2012, the landmark ruling on the Affordable Care Act was handed down. Many legal scholars noted that the Court’s standing with the public and perceived legitimacy was part of the calculus, as 2012 polling data suggested that the Court’s traditionally high approval ratings had declined considerably. In advance of the ruling, the American people were divided over how the Court should handle the issue.
Scholars are now trying to make sense of the Court’s 2013 decisions — on gay marriage, the Voting Rights Act, affirmative action, and much more — and to see how public opinion might have affected the legal rulings. Writing at the political science blog “The Monkey Cage,” Erik Voten of Georgetown examines the various academic hypotheses and some of the relevant research literature; he concludes that applying an “attitudinal model” helps explain certain judicial decisions.
For background research perspective on the gay marriage case, see this reading list, compiled by George Washington University political scientist John Sides. Emory University political scientist Tom Clark also notes in a useful recent blog post that “the justices are indeed sensitive to the dynamics of public opinion on important issues in society. The Court’s responsiveness to public opinion is something that political scientists have long studied.”
The following reports and studies can help frame these issues:
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“Public (Mis)Perceptions of Supreme Court Ideology: A Method for Directly Comparing Citizens and Justices”
Jessee, Stephen; Malhotra, Neil. Public Opinion Quarterly, 2013, Vol. 77, No. 2, 619-634. doi: 10.1093/poq/nft017.
Abstract: “Do people accurately perceive the Supreme Court’s ideology in relation to their own positions? Which types of people are most likely to misperceive? Answering these questions is important for understanding the basis of public support for the Supreme Court. To do so requires placing the public and the Supreme Court on a common ideological scale. This study represents the first attempt to do so. We ask respondents how they would have voted on a set of cases recently decided by the Court, meaning that we can generate a comparable set of ideal points for both masses and elites in a common space. We find that the Court is generally representative of mass opinion and that most citizens have accurate perceptions of the Court. However, we also find that people are substantially more likely to misperceive the Court as being too liberal than too conservative.”
“The Swing Justice”
Enns, Peter K.; Wohlfarth, Patrick C. Journal of Politics, August 2013, 1-19. doi: 10.1017/S0022381613001035.
Abstract: “In the Supreme Court’s most closely divided cases, one pivotal justice can determine the outcome. Given this fact, judicial scholars have paid substantial attention to the swing justice. This article makes two theoretical contributions to the study of the swing justice and this justice’s resulting influence on case outcomes. First, we show that in a substantial number of cases, the justice that casts the pivotal vote is not the median justice on the Court. Second, we argue that the swing justice will typically rely less on attitudinal considerations and more on strategic and legal considerations than the other justices on the Court. The analysis suggests that even among the Court’s most closely divided decisions, which are typically thought to reflect the Court’s most ideologically driven outcomes, the pivotal swing vote is significantly less likely to reflect attitudinal predispositions and more likely to reflect strategic considerations, such as the public’s preferences, and case-specific considerations such as the position advocated by the Solicitor General. The theory and findings suggest that a failure to consider the unique behavior of a pivotal actor—whether on the Supreme Court or any other decision-making body—can lead to incorrect conclusions about the determinants of policy outputs.”
“On the Ideological Foundations of Supreme Court Legitimacy in the American Public”
Bartels, Brandon L.; Johnston, Christopher D. American Journal of Political Science, January 2013, Vol. 57, Issue 1, 184–199.
Abstract: “Conventional wisdom says that individuals’ ideological preferences do not influence Supreme Court legitimacy orientations. Most work is based on the assumption that the contemporary Court is objectively conservative in its policymaking, meaning that ideological disagreement should come from liberals and agreement from conservatives. Our nuanced look at the Court’s policymaking suggests rational bases for perceiving the Court’s contemporary policymaking as conservative, moderate, and even liberal. We argue that subjective ideological disagreement—incongruence between one’s ideological preferences and one’s perception of the Court’s ideological tenor—must be accounted for when explaining legitimacy. Analysis of a national survey shows that subjective ideological disagreement exhibits a potent, deleterious impact on legitimacy. Ideology exhibits sensible connections to legitimacy depending on how people perceive the Court’s ideological tenor. Results from a survey experiment support our posited mechanism. Our work has implications for the public’s view of the Court as a ‘political’ institution.”
“Supreme Court’s Favorable Rating Still at Historic Low”
Dimock, Michael; Doherty, Carroll; Kiley, Jocelyn. Pew Research Center, March 2013.
Findings: “A national survey by the Pew Research Center, conducted March 13-17 among 1,501 adults, finds that 52% view the court favorably, while 31% view it unfavorably. Those ratings have changed only modestly since last July, shortly after the court’s ruling to uphold most of the Affordable Care Act. Republicans’ views of the court, which tumbled 18 points following the court’s ruling on the health care law, have rebounded somewhat in the current survey. Nearly half of Republicans (47%) have a favorable opinion of the Supreme Court, up from 38% last July, but still lower than the 56% who viewed the court positively prior to its decision on the health care law. By contrast, Democrats’ impressions of the court have slipped since last July, from 64% to 56%.”
“The Supreme Court’s New Source of Legitimacy”
Bassok, Or. University of Pennsylvania Journal of Constitutional Law, Vol. 16, 2013.
Abstract: “In recent decades, the Supreme Court has lost its ability to base its legitimacy solely on its legal expertise yet it has gained public support as a new source to legitimize its authority. Due to growing public understanding that legal expertise does not award the Court with determinate answers, the Court has partly lost expertise as a source of legitimacy. The idea that judges decide salient cases based on their political preferences has become part of common sense and has eroded the Court’s image as an expert in the public mind. On the other hand, as a result of the invention of scientific public opinion polls and their current centrality in the public mind, the Court has now available a new source of legitimacy. Thanks to public opinion polls that measure public support for the Court, the Court for the first time in its history, has now an independent and public metric demonstrating its public support. The monopoly elected institutions had on claiming to hold public mandate has been broken. As a result of these changes as well as the lessons the Court took from the Lochner decisional line and Brown, an important shift in the political balance of power and subsequently in the Rehnquist Court’s understanding of its own sources of legitimacy occurred.”
“How Public Opinion Constrains the U.S. Supreme Court”
Casillas, Christopher J.; Enns, Peter K.; Wohlfarth, Patrick C. American Journal of Political Science, October 2010. doi: 10.1111/j.1540-5907.2010.00485.x.
Abstract: “Although scholars increasingly acknowledge a contemporaneous relationship between public opinion and Supreme Court decisions, debate continues as to why this relationship exists. Does public opinion directly influence decisions or do justices simply respond to the same social forces that simultaneously shape the public mood? To answer this question, we first develop a strategy to control for the justices’ attitudinal change that stems from the social forces that influence public opinion. We then propose a theoretical argument that predicts strategic justices should be mindful of public opinion even in cases when the public is unlikely to be aware of the Court’s activities. The results suggest that the influence of public opinion on Supreme Court decisions is real, substantively important, and most pronounced in nonsalient cases. ”
“Perceptions of Politicization and Public Preferences Toward the Supreme Court”
Bartels, Brandon L.; Johnston, Christopher D. Public Opinion Quarterly, September 2011. doi: 10.1093/poq/nfr032.
Abstract: “To what extent should Supreme Court justices be appointed on the basis of ideology and politics as opposed to qualifications and experience only? We examine how Americans’ preferences regarding this question are influenced by their perceptions of the Court as politicized in how it goes about its work. From a ‘backlash’ perspective, such perceptions should diminish preferences for a political appointment process, while a ‘political reinforcement’ perspective suggests an enhancement effect. National survey data show that large segments of the public perceive of the Court in political terms and prefer that justices be chosen on political and ideological bases. Empirical evidence refutes the backlash hypothesis and supports the political reinforcement hypothesis; the more individuals perceive the Court in politicized terms, the greater their preferences for a political appointment process. Those who view the Court as highly politicized do not differentiate the Court from the explicitly political branches and therefore prefer that justices be chosen on political and ideological grounds. The results have implications for the public’s perceptions and expectations of the Court as a ‘political’ institution.”
‘‘’An Appeal to the People’: Public Opinion and Congressional Support for the Supreme Court”Ura, Joseph Daniel; Wohlfarth, Patrick C. The Journal of Politics, 2010. doi: 10.1017/S0022381610000459.
Abstract: “Scholars often assert that public support for judicial authority induces Congress to grant resources and discretion to the Supreme Court. However, the theory of competing public agency embraced by the Constitution suggests that public support for courts cannot, by itself, explain congressional support for judicial authority. Instead, the logic of the separation of powers system indicates that legislative support for the institutional capacity of courts will be a function of public confidence in the legislature as well as evaluations of the judiciary. We test this theory, finding that public confidence in both Congress and the Court significantly affect congressional support for the Supreme Court, controlling for the ideological distance between the Court and Congress as well as the Court’s workload. The results offer a more refined and complex view of the role of public sentiment in balancing institutional power in American politics.”
“The Separation of Powers, Court Curbing, and Judicial Legitimacy”
Clark, Tom S. American Journal of Political Science, October 2009, Vol. 53, Issue 3. doi: 10.1111/j.1540-5907.2009.00411.x.
Abstract: “A major focus of judicial politics research has been the extent to which ideological divergence between the Court and Congress can explain variation in Supreme Court decision making. However, conflicting theoretical and empirical findings have given rise to a significant discrepancy in the scholarship. Building on evidence from interviews with Supreme Court justices and former law clerks, I develop a formal model of judicial-congressional relations that incorporates judicial preferences for institutional legitimacy and the role of public opinion in congressional hostility towards the Supreme Court. An original dataset identifying all Court-curbing legislation proposed between 1877 and 2006 is then used to assess the influence of congressional hostility on the Court’s use of judicial review. The evidence indicates that public discontent with the Court, as mediated through congressional hostility, creates an incentive for the Court to exercise self-restraint. When Congress is hostile, the Court uses judicial review to invalidate Acts of Congress less frequently than when Congress is not hostile towards the Court.”
“The Supreme Court in American Democracy: Unraveling the Linkages between Public Opinion and Judicial Decision Making”Blackstone, Bethany; Vining Jr., Richard L. Journal of Politics, April 2008, Vol. 70, No. 2.
Abstract: “There is wide scholarly agreement that the frequent replacement of justices has kept the Supreme Court generally attuned to public opinion. Recent research indicates that, in addition to this indirect effect, Supreme Court justices respond directly to changes in public opinion. We explore the two causal pathways suggested to link public opinion directly to the behavior of justices and the implications of the nature and strength of these linkages for current debates concerning Supreme Court tenure. The recent increase in the stability of Court membership has raised questions about the continued efficacy of the replacement mechanism and renewed debates over mechanisms to limit judicial tenure. Our analysis provides little evidence that justices respond strategically to public opinion but provides partial support for the idea that justices’ preferences shift in response to the same social forces that shape the opinions of the general public. Our analysis offers preliminary evidence that — even in the absence of membership change — public opinion may provide a mechanism by which the preferences of the Court can be aligned with those of the public.”
“The Supreme Court’s Many Median Justices”
Lauderdale, Benjamin E.; Clark, Tom S. American Political Science Review, November 2012, Vol. 106, Issue 4. doi: 10.1017/S0003055412000469.
Abstract: “One-dimensional spatial models have come to inform much theorizing and research on the U.S. Supreme Court. However, we argue that judicial preferences vary considerably across areas of the law, and that limitations in our ability to measure those preferences have constrained the set of questions scholars pursue. We introduce a new approach, which makes use of information about substantive similarity among cases, to estimate judicial preferences that vary across substantive legal issues and over time. We show that a model allowing preferences to vary over substantive issues as well as over time is a significantly better predictor of judicial behavior than one that only allows preferences to vary over time. We find that judicial preferences are not reducible to simple left-right ideology and, as a consequence, there is substantial variation in the identity of the median justice across areas of the law during all periods of the modern court. These results suggest a need to reconsider empirical and theoretical research that hinges on the existence of a single pivotal median justice.”
“Public Opinion and Senate Confirmation of Supreme Court Nominees”
Kastellec, Jonathan P.; Lax, Jeffrey R.; Phillips, Justin. Journal of Politics, July 2010, Vol. 72, No. 3, 767-784. doi: 10.1017/S0022381610000150.
Abstract: “Does public opinion influence Supreme Court confirmation politics? We present the first direct evidence that state-level public opinion on whether a particular Supreme Court nominee should be confirmed affects the roll-call votes of senators. Using national polls and applying recent advances in opinion estimation, we produce state-of-the-art estimates of public support for the confirmation of 10 recent Supreme Court nominees in all 50 states. We find that greater home-state public support does significantly and strikingly increase the probability that a senator will vote to approve a nominee, even controlling for other predictors of roll-call voting. These results establish a systematic and powerful link between constituency opinion and voting on Supreme Court nominees. We connect this finding to larger debates on the role of majoritarianism and representation.”
“Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases”
Stoutenborough, James W.; Haider-Markel, Donald P.; Allen, Mahalley D. Political Research Quarterly, September 2006, Vol. 59, No. 3.
Abstract: “The theoretical and empirical debate over the ability of the U.S. Supreme Court to influence public opinion through its decisions is far from settled. Scholars have examined the question using a variety of theoretical perspectives and empirical evidence, but there is no theoretical consensus, nor are the empirical studies without methodological weaknesses. We enter this debate in an attempt to bring some clarity to the theoretical approaches, overcome some of the methodological shortcomings, and bring a yet unstudied issue area, Court decisions on gay civil rights, under scrutiny. We argue that the ability of Court decisions to influence public opinion is a function of the salience of the issue, the political context, and case specific factors at the aggregate level. At the individual level these factors are also relevant, but citizen characteristics must also be taken into consideration. Our analysis of aggregate level and individual level opinion does indeed suggest that Court decisions can influence public opinion. However, the ability of Court decisions to influence public opinion is conditional. Our findings lend support to the legitimation hypothesis and the structural effects model. We conclude with a discussion of the implications of our findings and suggestions for future research.”
“Republican Schoolmaster: The U.S. Supreme Court, Public Opinion and Abortion”
Franklin, Charles H.; Kosaki, Liane C. American Political Science Review, September 1989, Vol. 83, No. 3.
Abstract: “The United States Supreme Court has a historical role as a ‘republican schoolmaster,’ inculcating virtues in the citizenry. The role as teacher to the republic also serves the interests of the Court. As the ‘weakest branch,’ the Supreme Court needs public support if its decisions are to be effective. We investigate the Court’s ability to win popular support for its rulings, specifically in the case of Roe v. Wade. The analysis shows that the Court’s decision did affect public attitudes but not as previous work would predict. While support for abortions to protect health increased as a result of the Court’s decision, the public became more polarized over ‘discretionary’ abortions. The puzzle is what process can account for these disparate reactions. We develop a theory resting on interpersonal influences to explain these results, arguing that the social interpretation of events drives the differing outcomes. This theory is then tested against a purely psychological alternative. The closing discussion considers how these results can be extended to the general problem of public decisions and popular responses, including presidential actions and the influence of the media.”
Keywords: law, health care reform, research roundup, partisan divide