Supreme Court and Public Opinion

by

Brandon Bartels

• LAST REVIEWED: 24 July 2018
• 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.

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

• 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.

  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.

• 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.

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