Political Science Supreme Court and Public Opinion
by
Brandon Bartels
  • LAST MODIFIED: 24 July 2018
  • DOI: 10.1093/obo/9780199756223-0247

Introduction

Public opinion pertaining to the US Supreme Court is important because of the Court’s unique position in the political system. First, the Supreme Court possesses great authority in American government through both its ability to render statutory interpretations over the meaning of federal laws and its status as the final arbiter of constitutional meaning for everyone in the country. This latter aspect is “judicial supremacy,” and the Court uses its tool of judicial review as a means to this end. While the Constitution formally enumerates powers for Congress and the president, the Court’s capacity for exercising its power to the fullest is ultimately a function of deference from the public and the other branches. Second, and related, the Court does not possess formal mechanisms for enforcing its rulings and is therefore reliant on the other branches, lower courts, the states, and the American people for compliance. Third, in a democracy, judicial independence and accountability are in conflict. We value judicial independence because we want justices to be free from electoral and political pressure when deciding important legal issues; we want law and politics to be completely independent of one another. However, given the Court’s awesome authority in the political system, particularly judicial supremacy, people can become uncomfortable with life-tenured justices not being subjected to the kinds of popular accountability mechanisms to which members of Congress and presidents are subjected. This latter aspect highlights the classic democratic dilemma known as the “counter-majoritarian difficulty”—how to reconcile unelected justices having a veto power over laws passed by democratic majorities. Because of these factors, scholars have maintained a keen interest in (1) how the public perceives and assesses the Supreme Court, (2) what factors influence evaluations of the Court, including its legitimacy, and (3) what impact public opinion has on the Court’s decision making. This article reviews scholarship on each of these aspects.

General Overviews

The topic of the “Supreme Court and public opinion” has not attracted numerous “review pieces” that summarize the state of the literature. Caldeira 1991, though now somewhat dated, presents a useful and broad overview of courts (including the Supreme Court) and public opinion. Ura and Merrill 2017 provides a more recent update of the topic. Gibson and Nelson 2014 is a comprehensive and timely overview of competing explanations of Supreme Court legitimacy (see Institutional Legitimacy).

  • Caldeira, Gregory A. “Courts and Public Opinion.” In The American Courts. Edited by John B. Gates and Charles A. Johnson, 303–334. Washington, DC: Congressional Quarterly, 1991.

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    General overview of key topics and summary of findings in the general scholarly literature on courts and public opinion. The Supreme Court features prominently.

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  • Gibson, James L., and Michael J. Nelson. “The Legitimacy of the U.S. Supreme Court: Conventional Wisdoms and Recent Challenges Thereto.” Annual Review of Law and Social Science 10.1 (2014): 201–219.

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    The article provides a comprehensive review of key findings centered on explanations of Supreme Court legitimacy in the American public. The article discusses and assesses emerging “policy-based” explanations of legitimacy, which challenge conventional wisdom that the Court’s legitimacy is not a function of disagreement with its rulings.

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  • Ura, Joseph Daniel, and Alison Higgins Merrill. “The Supreme Court and Public Opinion.” In The Oxford Handbook of U.S. Judicial Behavior. Edited by Lee Epstein and Stefanie Lindquist, 432–459. New York: Oxford University Press, 2017.

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    This chapter provides an updated review of courts and public opinion.

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Reference Resources

Several data resources on public opinion toward the Supreme Court are available. Commercial polls, many of which are archived via the Roper Center’s i-POLL Databank database frequently asked questions about Supreme Court approval and confidence. Gallup also includes a wealth of public opinion data and trends. The General Social Survey, NORC contains over-time data on confidence in the Supreme Court and other institutions.

Journals

Mainstream academic journals in political science regularly publish articles on the Supreme Court and public opinion.

Facets of Supreme Court Opinion

An important issue in the study of the Supreme Court and public opinion is distinguishing facets of Supreme Court opinion. These distinctions matter when rendering explanations of the Court. Caldeira and Gibson 1992 puts forth a key conceptualization of the Court’s “diffuse support,” drawing on Easton 1965 and the distinction between diffuse support and “specific support.” Diffuse support, as pertaining to the Court, is conceptualized as a rejection of alterations to the functioning, powers, and authority of the Court. It represents institutional loyalty—a deep sense of support for the underlying authority of the institution. The literature later treats diffuse support as synonymous with “institutional legitimacy.” Specific support, on the other hand, represents support for the Court’s rulings and policies. It is more akin to “job approval.” Gibson, et al. 2003 distinguishes “confidence” from legitimacy as well. The authors argue that confidence in the Supreme Court is more closely associated with specific support than diffuse support or legitimacy. “Trust” in the Supreme Court is somewhere between specific and diffuse support, though Gibson 2011 suggests that it is more associated with specific support. Finally, scholars are interested in “procedural perceptions” (or “process perceptions”) of the Court centering on whether people view the Court as behaving on the basis of politics and ideology versus legal and other objective criteria.

  • Caldeira, Gregory A., and James L. Gibson. “The Etiology of Public Support for the Supreme Court.” American Journal of Political Science 36.3 (1992): 635–664.

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    Classic article on the conceptualization and measurement of “diffuse support” for the Supreme Court. It also builds a theory of Supreme Court diffuse support. Its foundations are centered on nonpolicy and mostly apolitical factors, such as values and knowledge.

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  • Easton, David. A Systems Analysis of Political Life. New York: John Wiley, 1965.

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    Classic book in political science generally, which distinguishes “diffuse support” for the political system generally from “specific support” for outputs the government produces.

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  • Gibson, James L. “A Note of Caution about the Meaning of ‘The Supreme Court Can Usually Be Trusted . . . .’” Law & Courts: Newsletter of the Law & Courts Section of the American Political Science Association 21.3 (2011): 10–16.

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    Brief article suggesting that “trust” in the Supreme Court is more associated with job approval than legitimacy and, therefore, it should not be used as a part of a legitimacy measure.

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  • Gibson, James L., Gregory A. Caldeira, and Lester Kenyatta Spence. “Measuring Attitudes toward the United States Supreme Court.” American Journal of Political Science 47.2 (2003): 354–367.

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    Influential article presenting basic tips for scholars seeking to measure Supreme Court legitimacy among the public. It makes important distinctions in conceptualization and measurement across facets such as job approval, confidence, and legitimacy (or diffuse support).

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Approval and Confidence

Scholarship examines the factors that influence Supreme Court approval or confidence among American citizens. Broadly construed, these studies can be categorized as “decision-based” perspectives or “process-based” perspectives. Mondak and Smithey 1997 generates a general model by which the Supreme Court’s support can remain sufficiently high and stable despite individual-level movement that occurs among those who agree and disagree with a given ruling. Several studies find that “rulings matter” for overall approval or confidence, including Grosskopf and Mondak 1998, Hoekstra 2000, Hoekstra 2003, and Mondak 1991. Kritzer 2001 finds that the Bush v. Gore ruling did not influence approval in the aggregate, but Republicans and Democrats each moved in opposite directions in line with the conservative ruling. Mondak 1991 finds that procedural elements of a Court ruling, including whether it is framed as activist, do not influence institutional approval, while policy-based aspects do matter. On the other hand, Ramirez 2008 finds that procedural fairness mediates the relationship between media coverage of a ruling (as politicized versus legalistic) and institutional approval. Another “process-based” factor is the vote split in a case, and Zink, et al. 2009 finds that, under certain conditions, more unified voting outcomes generate greater support for a ruling than divided outcomes.

  • Grosskopf, Anke, and Jeffery J. Mondak. “Do Attitudes toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court.” Political Research Quarterly 51.3 (1998): 633–654.

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    This article finds that specific rulings do influence confidence, but disagreement dampens confidence more than agreement enhances it.

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  • Hoekstra, Valerie J. “The Supreme Court and Local Public Opinion.” American Political Science Review 94.1 (2000): 89–100.

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    This article examines the effect of rulings on the local communities from which the dispute originated. These individuals have higher awareness of the ruling and those who agree with the ruling update their approval of the Court accordingly.

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  • Hoekstra, Valerie J. Public Reaction to Supreme Court Decisions. New York: Cambridge University Press, 2003.

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    Drawing on her past work, the book examines the effect of rulings on the local communities where the dispute originated. The work finds that these individuals are more aware of the ruling and they update their overall views of the Court in light of the ruling.

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  • Kritzer, Herbert M. “The Impact of Bush v. Gore on Public Perceptions and Knowledge of Supreme Court.” Judicature 85.1 (2001): 32–38.

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    This work finds that the Court’s Bush v. Gore ruling had a null effect on public opinion in the aggregate, but that Republicans were more approving and Democrats less approving.

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  • Mondak, Jeffery J. “Substantive and Procedural Aspects of Supreme Court Decisions as Determinants of Institutional Approval.” American Politics Quarterly 19.2 (1991): 174–188.

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    The article finds that policy-based aspects of a ruling influence institutional approval more so than procedural aspects concerning judicial activism.

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  • Mondak, Jeffery J., and Shannon Ishiyama Smithey. “The Dynamics of Public Support for the Supreme Court.” Journal of Politics 59.4 (1997): 1114–1142.

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    The Supreme Court can maintain relatively high public support even when it generates controversial rulings on occasion. Over time, a mix of liberal and conservative rulings generates offsets among those who agree and those who disagree.

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  • Ramirez, Mark D. “Procedural Perceptions and Support for the U.S. Supreme Court.” Political Psychology 29.5 (2008): 675–698.

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    Media portrayals of the Court’s ruling as politicized influence perceptions of the Court’s procedural fairness, which, in turn, influence overall approval for the Court. Procedural fairness mediates the linkage between media portrayal of the Court and approval of the Court.

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  • Zink, James R., James F. Spriggs, and John T. Scott. “Courting the Public: The Influence of Decision Attributes on Individuals’ Views of Court Opinions.” Journal of Politics 71.3 (2009): 909–925.

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    Under certain conditions, unified, unanimous Court rulings can muster up greater approval for the ruling than closely divided rulings.

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Political Perceptions of the Court

Does the public perceive the Supreme Court as legalistic, objective, and fair or as political and ideological? Early perspectives, like Casey 1974, referred to “myth” or the “myth of legality” in which the Court was viewed as apolitical and decided cases on the basis of the law and legal precedent. Casey 1974 found that counter to conventional wisdom, aware individuals were actually more likely than their unaware counterparts to subscribe to myth. More recent perspectives, including Scheb and Lyons 2000; Bartels and Johnston 2012; and Hansford, et al. 2018, find that many in the public view the Court in political terms and agree that the Court is a “political” institution. Badas 2016 finds that politicized perceptions of the Court are tied to policy agreement (via a motivated reasoning mechanism), while Baird and Gangl 2006 and Spill and Oxley 2003 argue that media depictions of the Court and its rulings as “political” advance such political perceptions, as well as lower levels of procedural justice/fairness. Gibson and Caldeira 2011 argues that while many now recognize that the justices make decisions tied to their ideologies, the discretion that they do have is used in a principled manner.

  • Badas, Alex. “The Public’s Motivated Response to Supreme Court Decision-Making.” Justice System Journal 37.4 (2016): 318–330.

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    Perceptions of politicization are driven by policy agreement with the Court’s rulings. A motivated reasoning mechanism explains this linkage.

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  • Baird, Vanessa A., and Amy Gangl. “Shattering the Myth of Legality: The Impact of the Media’s Framing of Supreme Court Procedures on Perceptions of Fairness.” Political Psychology 27.4 (2006): 597–614.

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    Finds that media depictions of the Court’s rulings as politicized has deleterious effects on perceptions of procedural fairness.

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  • Bartels, Brandon L., and Christopher D. Johnston. “Political Justice? Perceptions of Politicization and Public Preferences Toward the Supreme Court Appointment Process.” Public Opinion Quarterly 76.1 (2012): 105–116.

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    This article finds that a considerable share of the public perceives the Court in political terms and that these perceptions lead people to prefer a more political appointment process.

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  • Casey, Gregory. “The Supreme Court and Myth: An Empirical Investigation.” Law & Society Review 8.3 (1974): 385–420.

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    The article finds that awareness among citizens actually enhances subscription to myth-holding perceptions.

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  • Gibson, James L., and Gregory A. Caldeira. “Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?” Law & Society Review 45.1 (2011): 195–219.

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    While justices have ideological discretion, many in the public believe that the justices use such discretion in a principled manner.

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  • Hansford, Thomas G., Chanita Intawan, and Stephen P. Nicholson. “Snap Judgment: Implicit Perceptions of a (Political) Court.” Political Behavior 40.1 (2018): 127–147.

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    This article measures implicit perceptions of the Supreme Court as a political institution. While political impressions are lower than Congress, the article reports relatively high levels of political impressions of the Court, which have consequences for Court support.

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  • Scheb, John M., and William Lyons. “The Myth of Legality and Public Evaluation of the Supreme Court.” Social Science Quarterly 81.4 (2000): 928–940.

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    This article finds that many among the public do not subscribe to the myth of legality. Many among the public view the Supreme Court in political and ideological terms.

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  • Spill, Rorie L., and Zoe M. Oxley. “Philosopher Kings or Political Actors? How the Media Portray the Supreme Court.” Judicature 87.1 (2003): 22–29.

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    The article shows that the increase in more sensationalist media has influenced more political perceptions of the Court.

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Institutional Legitimacy

The study of the Supreme Court’s institutional legitimacy now occupies a featured role in the literature. Scholars are interested in “outcome-based” versus “process-based” factors that influence legitimacy. For the most part, scholars agree that legitimacy represents “rightful authority” to render rulings for the polity. Citizens who reject fundamental alterations to the Court’s power, functions, and authority have high legitimacy, while those who support such “Court-curbing” measures possess low legitimacy. Another form of legitimacy relates to the aspect of “judicial supremacy,” or the idea that the Court’s constitutional rulings represent the final word on the matter for everyone in the country.

Process-Based Legitimacy

“Process-based legitimacy” means that non-outcome-based “procedural” considerations influence legitimacy. These considerations can be grouped into three categories. The first is support for democratic values, such as freedom/liberty, rule of law, and support for a multiparty system. The more people support these core values, the more they support the Court’s authority in the system. These are system-level procedural considerations at a very broad level. Caldeira and Gibson 1992; Gibson, et al. 2003; and Gibson and Nelson 2015 support this general finding. The second factor is knowledge of the Court, with the mechanism being that the more one knows about the Court, the more one is exposed to the legitimating symbols, nonpolitical processes, and deliberative and legalistic decision making. In other words, “to know the Court is to love it.” This forms the basis of “positivity theory,” developed in Gibson and Caldeira 2009a; Gibson and Caldeira 2009b; and Gibson, et al. 2003. This perspective suggests that more knowledgeable people differentiate the Court from the overtly political processes of institutions like Congress. Thus, even if they come across negative political information, the positive signals offset any negative information, leaving people with a “positivity bias” in legitimacy judgments. Gibson, et al. 2014 also underscores the conditions under which legal symbols matter in legitimacy judgments. The last factor relates to procedural fairness, as opposed to political and ideological influences, in the decision-making process. Tyler and Rasinski 1991 finds that procedural justice considerations positively influence legitimacy, and Nicholson and Howard 2003 shows that certain procedural frames influence diffuse support. Farganis 2012 finds that more procedurally sound rationales (in the Court’s opinions) enhance legitimacy.

  • Caldeira, Gregory A., and James L. Gibson. “The Etiology of Public Support for the Supreme Court.” American Journal of Political Science 36.3 (1992): 635–664.

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    The authors find support for democratic values and political knowledge enhance diffuse support.

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  • Farganis, Dion. “Do Reasons Matter? The Impact of Opinion Content on Supreme Court Legitimacy.” Political Research Quarterly 65.1 (2012): 206–216.

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    The author finds procedurally sound rationales in Supreme Court opinions enhance legitimacy.

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  • Gibson, James L., Gregory A. Caldeira, and Lester Kenyatta Spence. “The Supreme Court and the US Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?” British Journal of Political Science 33.4 (2003): 535–556.

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    Authors find that the Supreme Court’s legitimacy was not negatively affected, in the aggregate, by the Bush v. Gore ruling. They uphold the notion that support for democratic values and knowledge enhance legitimacy judgments among the public.

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  • Gibson, James L., and Gregory A. Caldeira. Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People. Princeton, NJ: Princeton University Press, 2009a.

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    Develops positivity theory and examines Supreme Court legitimacy in the context of the Alito nomination.

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  • Gibson, James L., and Gregory A. Caldeira. “Confirmation Politics and the Legitimacy of the U.S. Supreme Court: Institutional Loyalty, Positivity Bias, and the Alito Nomination.” American Journal of Political Science 53.1 (2009b): 139–155.

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    Application of positivity theory to attitudes toward the Alito nomination.

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  • Gibson, James L., Milton Lodge, and Benjamin Woodson. “Losing, but Accepting: Legitimacy, Positivity Theory, and the Symbols of Judicial Authority.” Law & Society Review 48.4 (2014): 837–866.

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    Finds that exposure to certain symbolic aspects of the Court influences legitimacy under certain conditions.

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  • Gibson, James L., and Michael J. Nelson. “Is the U.S. Supreme Court’s Legitimacy Grounded in Performance Satisfaction and Ideology?” American Journal of Political Science 59.1 (2015): 162–174.

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    Further support for the effects of democratic values and knowledge on legitimacy judgments. The authors find a more modest role for ideological/policy disagreement.

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  • Nicholson, Stephen P., and Robert M. Howard. “Framing Support for the Supreme Court in the Aftermath of Bush v. Gore.” Journal of Politics 65.3 (2003): 676–695.

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    Finds that certain procedural frames surrounding the Bush v. Gore ruling influenced diffuse support, while policy disagreement had more minimal effects under most conditions.

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  • Tyler, Tom R., and Kenneth Rasinski. “Procedural Justice, Institutional Legitimacy, and the Acceptance of Unpopular U.S. Supreme Court Decisions: A Reply to Gibson.” Law & Society Review 25.3 (1991): 621–630.

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    The authors argue that procedural fairness perceptions influence Supreme Court legitimacy; an application of procedural fairness theory to the Supreme Court.

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Outcome-Based Legitimacy

Several recent studies have argued and shown that policy, ideological, and partisan disagreement with the Supreme Court’s outputs decrease Supreme Court legitimacy among the public. From a general perspective, Tanenhaus and Murphy 1981 finds that general agreement or disagreement with policy outputs influenced diffuse support in the longer term (though the authors used measures that would arguably be questioned by today’s scholarly standards). Bartels and Johnston 2013 shows that a general form of “subjective ideological disagreement”—a distance measure between one’s own ideology and one’s perception of the Supreme Court’s ideology—diminishes Supreme Court legitimacy. Experimental studies of specific Court policies show that partisan cues matter significantly for both support for Court-curbing (Clark and Kastellec 2015) and support for the Court’s policy authority (or judicial supremacy) (Nicholson and Hansford 2014). Both Christenson and Glick 2015 and Johnston, et al. 2014 show that policy disagreement with the Court’s ACA/health care ruling translated to lower legitimacy judgments. Simon and Scurich 2011 shows that legitimacy judgments are strongly tied to policy disagreement via a motivated reasoning mechanism.

  • Bartels, Brandon L., and Christopher D. Johnston. “On the Ideological Foundations of Supreme Court Legitimacy in the American Public.” American Journal of Political Science 57.1 (2013): 184–199.

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    Shows that general ideological disagreement diminishes Supreme Court legitimacy among the public. Experimental results show that policy disagreement with a specific ruling also reduces legitimacy.

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  • Christenson, Dino P., and David M. Glick. “Chief Justice Roberts’s Health Care Decision Disrobed: The Microfoundations of the Supreme Court’s Legitimacy.” American Journal of Political Science 59.2 (2015): 403–418.

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    The authors show that ideological disagreement with the ACA ruling diminished legitimacy judgments. The study uses an innovative multiwave panel study.

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  • Clark, Tom S., and Jonathan P. Kastellec. “Source Cues and Public Support for the Supreme Court.” American Politics Research 43.3 (2015): 504–535.

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    Partisan cues vis-à-vis individuals’ partisan orientations influence support for or opposition to Court-curbing measures, an indicator of the Court’s legitimacy.

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  • Johnston, Christopher D., D. Sunshine Hillygus, and Brandon L. Bartels. “Ideology, the Affordable Care Act Ruling, and Supreme Court Legitimacy.” Public Opinion Quarterly 78.4 (2014): 963–973.

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    Finds that ideological disagreement diminished legitimacy in light of the Court’s ACA ruling.

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  • Nicholson, Stephen P., and Thomas G. Hansford. “Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions.” American Journal of Political Science 58.3 (2014): 620–636.

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    Party cues lead Democrats and Republicans to grant or withhold legitimacy based on partisan agreement or disagreement.

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  • Simon, Dan, and Nicholas Scurich. “Lay Judgments of Judicial Decision Making.” Journal of Empirical Legal Studies 8.4 (2011): 709–727.

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    Agreement or disagreement with Court outcomes influences legitimacy judgments.

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  • Tanenhaus, Joseph, and Walter F. Murphy. “Patterns of Public Support for the Supreme Court: A Panel Study.” Journal of Politics 43.1 (1981): 24–39.

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    The authors find diffuse support is tied to ideological considerations and the Court’s rulings.

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Supreme Court and Opinion Change

When the Supreme Court rules on an issue, how does the public respond? Gathering large numbers of survey items, the author of Marshall 1989 finds that public opinion on the underlying issues on which the Court rules barely moves. Marshall 2008 also finds that the Supreme Court is quite representative of public opinion, particularly on high-profile issues, thus allaying concerns about a runaway, counter-majoritarian Court. On the other hand, Franklin and Kosaki 1989 finds more nuances in movement, showing that Roe v. Wade polarized opinion among abortion opponents and proponents. Johnson and Martin 1998 qualifies this finding in showing that while this model may apply to landmark rulings, its explanatory power diminishes for progeny cases. Bartels and Mutz 2009; Fontana and Braman 2012; Gibson, et al. 2005; Hoekstra and Segal 1996; and Stoutenborough, et al. 2006 find that the Court is capable of moving opinion in the direction of its rulings under certain conditions, providing support for the “legitimation hypothesis.” Other studies, such as Fontana and Braman 2012 and Ura 2014, show conditions under which public backlash against the Court occurs.

  • Bartels, Brandon L., and Diana C. Mutz. “Explaining Processes of Institutional Opinion Leadership.” Journal of Politics 71.1 (2009): 249–261.

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    Experimental study showing conditions under which the Supreme Court can move, or legitimate, public opinion in the direction of its rulings.

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  • Fontana, David, and Donald Braman. “Judicial Backlash or Just Backlash? Evidence from a National Experiment.” Columbia Law Review 112.4 (2012): 731–799.

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    Experimental study showing conditions for both positive change and backlash against the Supreme Court’s rulings.

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  • Franklin, Charles H., and Liane C. Kosaki. “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion.” American Political Science Review 83.3 (1989): 751–771.

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    Classic article showing how Roe v. Wade polarized public opinion on the abortion issue.

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  • Gibson, James L., Gregory A. Caldeira, and Lester Kenyatta Spence. “Why Do People Accept Public Policies They Oppose? Testing Legitimacy Theory with a Survey-Based Experiment.” Political Research Quarterly 58.2 (2005): 187–201.

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    Experimental study showing how the Supreme Court can legitimate its policies with the public among those predisposed to disagree with the ruling.

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  • Hoekstra, Valerie J., and Jeffrey A. Segal. “The Shepherding of Local Public Opinion: The Supreme Court and Lamb’s Chapel.” Journal of Politics 58.4 (1996): 1079–1102.

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    Innovative study of the Supreme Court’s ability to move public opinion among the local and surrounding communities in which the Court dispute originated. The Court’s ability to move opinion was more prominent in the surrounding community, as opposed to the central community, for which the issue was slightly less salient.

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  • Johnson, Timothy R., and Andrew D. Martin. “The Public’s Conditional Response to Supreme Court Decisions.” American Political Science Review 92.2 (1998): 299–309.

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    Qualification to Franklin and Kosaki 1989 showing that the Court’s ability to polarize opinion is greater in the original landmark case and much less so in salient progeny cases.

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  • Marshall, Thomas R. Public Opinion and the Supreme Court. Boston: Unwin Hyman, 1989.

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    Extensive study showing that public opinion rarely moves in major ways in light of Supreme Court rulings.

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  • Marshall, Thomas R. Public Opinion and the Rehnquist Court. Albany: State University of New York Press, 2008.

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    Using extensive amounts of data, the author finds that the Supreme Court is generally quite representative of public opinion.

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  • Stoutenborough, James W., Donald P. Haider-Markel, and Mahalley D. Allen. “Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases.” Political Research Quarterly 59.3 (2006): 419–433.

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    Under certain conditions, the Supreme Court is capable of moving public opinion in the direction of its rulings, providing some support for the legitimation hypothesis.

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  • Ura, Joseph Daniel. “Backlash and Legitimation: Macro Political Responses to Supreme Court Decisions.” American Journal of Political Science 58.1 (2014): 110–126.

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    Innovative application of the thermostatic model of public opinion to the Supreme Court. The article shows a short-term backlash against the Court but, in the longer term, opinion moves in favor of the Court’s positions.

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The Impact of Public Opinion on the Supreme Court

While the works cited in the previous sections examine the public’s assessments of and reactions to the Supreme Court and its rulings, this section discusses whether and how the public actually influences the Court’s decision making. Does the Court take into account public preferences when making decisions? The bulk of the research done on this question answers “yes,” though some perspectives present conditional responses. From more of a “congruence” perspective, Barnum found that on many rulings, the Court was in line with public opinion, thus allaying concerns about counter-majoritarianism (Barnum 1985). Mishler and Sheehan 1993; Mishler and Sheehan 1996; Flemming and Wood 1997; Giles, et al. 2008; and McGuire and Stimson 2004 also show very generalized effects of public opinion (or “public mood”) on Supreme Court outputs. Other work shows more conditional effects and there are conflicting effects across studies. A more nuanced study that accounts for the causal issue of justices responding to the same social forces as everyone else, Casillas, et al. 2011 shows that justices are actually more responsive to public opinion in nonsalient cases. Hall 2014 argues that fear of non-implementation moderates the effect of public opinion (and other external political pressures) on decision making. On “lateral” cases where the Court is dependent on the other branches and the public for implementation, the Court is more influenced by public opinion. On “vertical” cases lower courts implement rulings, and the Court is freer from such external constraint. Importantly, Hall finds these effects in salient cases only. Complicating matters further, the authors of Collins and Cooper 2016, using a more nuanced salience measure than other studies, finds that the impact of public opinion is strongest in high-salience cases and low-salience cases, but not in cases with moderate degrees of salience.

  • Barnum, David G. “The Supreme Court and Public Opinion: Judicial Decision Making in the Post–New Deal Period.” Journal of Politics 47.2 (1985): 652–666.

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    The Court is quite representative of public opinion on a variety of issues, thus allaying concerns about the counter-majoritarian difficulty.

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  • Casillas, Christopher J., Peter K. Enns, and Patrick C. Wohlfarth. “How Public Opinion Constrains the U.S. Supreme Court.” American Journal of Political Science 55.1 (2011): 74–88.

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    The authors unravel the linkage between public opinion and judicial decision making by accounting for social forces that simultaneously influence both the public and the justices. The work finds that the Supreme Court is more responsive to public opinion in nonsalient cases.

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  • Collins, Todd A., and Christopher A. Cooper. “The Case Salience Index, Public Opinion, and Decision Making on the U.S. Supreme Court.” Justice System Journal 37.3 (2016): 232–245.

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    The authors demonstrate that the influence of public opinion on decision making is strongest in cases with high and low, but not medium, salience.

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  • Flemming, Roy B., and B. D. Wood. “The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods.” American Journal of Political Science 41.2 (1997): 468–498.

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    Provides evidence that justices are responsive to public opinion, or “public mood.”

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  • Giles, Micheal W., Bethany Blackstone, and Richard L. Vining Jr. “The Supreme Court in American Democracy: Unraveling the Linkages between Public Opinion and Judicial Decision Making.” Journal of Politics 70.2 (2008): 293–306.

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    Suggests that justices do not respond directly or strategically to public opinion, but justices respond to the same social forces to which the public responds.

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  • Hall, Matthew E. K. “The Semiconstrained Court: Public Opinion, the Separation of Powers, and the U.S. Supreme Court’s Fear of Nonimplementation.” American Journal of Political Science 58.2 (2014): 352–366.

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    Finds greater response to public opinion in “lateral” cases (where the Court relies on the other branches and the public to implement its rulings) compared to “vertical” cases (where lower courts take care of implementation). These findings hold for salient, not nonsalient, cases.

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  • McGuire, Kevin T., and James A. Stimson. “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences.” Journal of Politics 66.4 (2004): 1018–1035.

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    Provides evidence that public mood influences the Supreme Court’s outputs.

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  • Mishler, William, and Reginald S. Sheehan. “The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions.” American Political Science Review 87.1 (1993): 87–101.

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    The authors show robust linkage between public opinion and Supreme Court outputs.

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  • Mishler, William, and Reginald S. Sheehan. “Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-analytic Perspective.” Journal of Politics 58.1 (1996): 169–200.

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    The authors show how public opinion influences the individual justices.

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