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Does the Supreme Court care what the public think?

As we continue to look back on Thursday’s Supreme Court decision on the Affordable Care Act, the question of how the Court’s opinion was influenced by the public has been raised. To provide some background, we excerpted The U.S. Supreme Court: A Very Short Introduction by Linda Greenhouse.

Scholars regard the relationship between the Supreme Court and public opinion as elusive. Lee Epstein and Andrew D. Martin, two leaders in the empirical study of judicial behavior, titled an article: “Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why).” The article surveyed the political science literature on the question, much of it inconclusive and contradictory. At best, the authors conclude, there seems to be an association between the Court and public opinion, but not enough evidence to “make the leap from association to causality,” that is, to prove that public opinion actually influences the Court. But in any event, public opinion does not travel a one-way street. While the public may influence the Court, at least some of the time, the Court may also influence the public. One classic image, dating to early in the country’s history, is of the justices as teachers, “the Supreme Court as republican schoolmaster,” in the phrase of a well-known article that documents the role of the early justices as they rode circuit, summarizing the law in their charges to grand juries, and serving in this manner as “teachers to the citizenry.” The author concludes that “whether the justice should teach the public is not and cannot be in question since teaching is inseparable from judging in a democratic regime.”

As in the Lilly Ledbetter episode (Ledbetter v. Goodyear Tire & Rubber Co., Inc., 2007), a Supreme Court decision can serve as a catalyst for public debate. Sometimes a grant of cert serves that function, well before a case has been decided or even argued. The Court’s willingness in the mid-1990s to consider whether the Constitution protects a right to physician-assisted suicide brought that issue from the shadows and placed it under a public spotlight. Public conversation and debate continued even after the Court answered the constitutional question in the negative in Washington v. Glucksberg (1997), and polls have subsequently shown steadily rising support for the ability of terminally ill people to have a doctor’s assistance in ending their lives. One study of public opinion on this issue concluded: “Court cases, in this realm as in others, place a human face on an otherwise quite abstract philosophical and legal controversy.”

Defenders of the Supreme Court’s exercise of judicial review must occasionally contend with the criticism that it is essentially undemocratic — “counter-majoritarian” — for unelected life-tenured judges to have the last word on the constitutionality of legislation enacted by the people’s elected representatives. The force of this critique waxes and wanes to the extent that the Court appears out of alignment with public opinion. It is not hard to understand why misalignment would occur with some regularity. Shifts in electoral majorities in response to changes in the public mood can occur much faster than changes on the Supreme Court, where tenures last decades. The first of Franklin D. Roosevelt’s nine Supreme Court appointees, Hugo L. Black, not only outlasted the Roosevelt administration but remained on the Court through the Truman, Eisenhower, Kennedy, and Johnson presidencies before retiring more than halfway through Richard Nixon’s first term. Between mid-1994 and mid-2005, a period of considerable political turmoil, punctuated by the contested election of 2000, there were no Supreme Court vacancies at all. The justices whose behavior provoked the Roosevelt court-packing plan were criticized from the Left; the Warren Court from the Right; and the Roberts Court, to a somewhat more modulated degree, from the Left again.

And yet, over time, the Court and the public seem to maintain a certain equilibrium. Public opinion polls regularly reflect that “diffuse” approval for the Supreme Court — that is, approval of the institution in general, rather than of particular actions — is higher than for other institutions of government. Of course, that fact alone is not particularly revealing. Surveys also demonstrate repeatedly that the current state of civics education is poor, and that the general public knows very little about the Court. For example, only 55 percent of the respondents in a 2005 survey agreed that the Supreme Court can declare an act of Congress unconstitutional. (Only one-third could name the three branches of government.) So perhaps the public expression of trust in the Supreme Court reflects a leap of faith rather than actual
knowledge; people want to believe in some governmental institution, and they are more likely to be able to identify what they don’t like about the political branches. Or perhaps the expression of public support for the Court reflects what political scientists call the “legitimation hypothesis,” the theory that once the Supreme Court rules on an issue, a measurable proportion of the public will come to the conclusion that “if they believe it, it must be right.”

Or perhaps, reflecting the awareness of public opinion displayed by the justices quoted at the beginning of this chapter, the Court brings itself into alignment over time, avoiding decisions that will take it far out of the mainstream of public opinion. That would not be surprising. The political scientist Robert A. Dahl observed more than a half century ago that the Supreme Court “is an essential part of the political leadership,” part of the “dominant political alliance.” It was therefore understandable, Dahl said, “that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.”

Linda Greenhouse is the author of The U.S. Supreme Court: A Very Short Introduction. She was the New York Times Supreme Court correspondent for 30 years, covering thousands of decisions written by 18 different justices. She was awarded a Pulitzer Prize in journalism (beat reporting) in 1998. She in now Knight Distinguished Journalist in Residence and Joseph Goldstein Lecturer in Law at Yale Law School and writes a biweekly opinion column on the Supreme Court and the law for the New York Times web site. Her books include Becoming Justice Blackmun: Harry Blackmun’s Supreme Court Journey and Before Roe v. Wade: Voices That Shaped the Abortion Debate Before the Supreme Court’s Ruling (with Reva B. Siegel).

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