How Public Opinion Constrains the U.S. Supreme Court

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.     

Ideological Proximity and Support for The Supreme Court

Although the Supreme Court is a countermajoritarian institution by design, many scholars have contended that without concrete powers, the Court relies on public support for legitimacy. Accordingly, it is important to understand the relationship between people’s ideological proximity to the Court and their support for it. Existing empirical research suggests a correspondence between public opinion and the Court’s positions, but these studies do not directly compare masses and elites in a common space. To address these issues, we conducted an original survey asking respondents about their positions on ten recently decided Supreme Court cases. This allows us to estimate the positions of citizens and justices on the same ideological scale. Further, while some existing theories of perceptions of judicial legitimacy suggest similar relationships between ideological distance and various types of support for the Court, we propose a theory of heterogeneous responsiveness which posits that citizens’ ideological distance from the Court should be negatively related to their approval of and trust in the institution, but positively related to their support for its countermajoritarian function. Our empirical approach finds support for the theory.     

The Separation of Powers, Court Curbing, and Judicial Legitimacy

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.     

Supreme Court Justices’ Economic Behaviour: A Multilevel Model Analysis

Supreme Court justices are overlooked, but important, national policy‐making players who render final and consequential decisions in cases on economic conflicts. The research question asks what forces explain the decisional behaviour of Supreme Court justices in economic rights cases between a private and a public party. Theoretically, the decisional behaviour of an individual justice is a function of his or her notion as to what makes ‘good’ law, pursued in a cultural‐collegial setting that is oriented by majoritarian requirements, while constrained by the legal nature of the case being considered. Empirically, all economic decisions made by Norwegian Supreme Court justices in five‐justice panels from 1963 to 2012 are analyzed. Our multilevel model demonstrates that individual, collegial and case‐level forces all contribute to explain the justices’ votes. These results suggest that case‐related dynamics, such as who the plaintiff is or the amount of disagreement between justices, matter, but also that ideology – via appointment mechanisms – matters when a nation's high court justices decide economic cases. Understanding the foundational assumptions and the institutional procedures is vital when transporting judicial behaviour models across polities.     

Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions

The public perceives the Supreme Court to be a legal institution. This perception enables the Court's legitimacy‐conferring function, which serves to increase public acceptance of its decisions. Yet, the public acknowledges a political aspect to the Court as well. To evaluate how the public responds to the different images of the Supreme Court, we investigate whether and how depictions of specifically partisan (e.g., Republican) Court rulings shape public acceptance of its decisions while varying institutional, legal, and issue characteristics. Using survey experiments, we find that party cues and partisanship, more so than the imprimatur of the Court, affect public acceptance. We also find that polarization diminishes the effect of party cues. Attributing a decision to the Court does little to increase baseline acceptance or attenuate partisan cue effects. The Court's uniqueness, at least in terms of its legitimacy‐conferring function, is perhaps overstated.     

Unanimous decision making on the U.S. Supreme Court: Case stimuli and judicial attitudes

Although behavioral scholars have devoted much time and energy to attempting to explain decision making on the U.S. Supreme Court, they have virtually ignored the unanimous decision. We investigated the Vinson, Warren, and Burger Courts and discovered that the liberal outcome was more successful in the unanimous cases whether those cases involve civil liberties or economic liberalism and whether they were decisions to reverse or decisions to affirm. We also ascertained that the ideological position that tended to win in the unanimous reverse cases was related to the ideological position that tended to win in the nonunanimous reverse cases, but that no such relationship was present in the two kinds of affirm cases. These two findings are in conformity with a psychometric model, which posits that the relative position of judicial attitudes and case stimuli determines the vote on the U.S. Supreme Court.     

Strategic Defiance and Compliance in the U.S. Courts of Appeals

Why do lower courts treat Supreme Court precedents favorably or unfavorably? To address this question, we formulate a theoretical framework based on current principal‐agent models of the judiciary. We use the framework to structure an empirical analysis of a random sample of 500 Supreme Court cases, yielding over 10,000 subsequent treatments in the U.S. Courts of Appeals. When the contemporary Supreme Court is ideologically estranged from the enacting Supreme Court, lower courts treat precedent much more harshly. Controlling for the ideological distance between the enacting and contemporary Supreme Courts, the preferences of the contemporary lower court itself are unrelated to its behavior. Hence, hierarchical control appears strong and effective. At the same time, however, a lower court's previous treatments of precedent strongly influence its later treatments. The results have important implications for understanding legal change and suggest new directions for judicial principal‐agency theory.     

Snap Judgment: Implicit Perceptions of a (Political) Court

Do people fundamentally perceive the Supreme Court as a political institution? Despite the central importance of this question to theories of public evaluations of the Court and its decisions, it remains largely unanswered. To this end, we develop a new, implicit measure of political perceptions of the Court. This new measure relies on a categorization task wherein respondents quickly associate political or non-political attributes with the Supreme Court relative to institutions that are high or low in politicization. We find that the public implicitly perceives the Court as less political than Congress (high politicization) and more political than traffic court (low politicization) and that this measure is distinct from self-reported (explicit) perceptions of politicization. Finally, we find that implicit perceptions have a distinct effect on predicting diffuse support for the court and specific support for one of two Court decisions.     

Presidential Power over Supreme Court Decisions

I calculate U.S. presidents’ power and power use concerning the ideological direction of U.S. Supreme Court decisions through their ability to appoint replacements to the Court, over the period 1946 through 2001. I test hypotheses concerning factors affecting appointment power and power use, and examine their effect on Senate confirmation votes. Of nine presidents, four have had the ability to affect the direction of more than 25 percent of Court decisions for sustained periods of time. Strongly ideological power use in appointment is found for four also. Senate confirmation votes have tended to be more favorable when the president has more appointment power.     

The Norwegian Supreme Court and Equitable Considerations: Problematic Aspects of Legal Reasoning

Legitimacy, confidence and autonomy in the court system are dependent on people trusting the institution to make decisions based on predefined legal rules. Simultaneously, confidence in the system is also dependent on the system's capability to adjust to changes in values in society. The Norwegian courts appear to be increasingly basing their rulings on ‘equitable considerations’. This involves the making of decisions by reference not only to predefined rules – as expressed in structures or pre‐existing legal practice – but also to policy considerations such as utility and fairness. Judicial decisions made with reference to political considerations imply that the courts are arrogating a role that democratic theory reserves for legislators. What happens when ‘equitable considerations’ play a large part in the decisions of the Supreme Court? Does the institution have capabilities and mechanisms that sustain such a judicial practice as a legitimate form of law enforcement? I argue that the capability to adjust to changes in society only seems possible if the judges act beyond the domain of traditional judicial competence. Through different kinds of mechanisms, elements of ‘equitable considerations’ over time become hidden and difficult to grasp. On the one hand, this makes it possible for the Supreme Court to sustain a judicial practice as a legitimate form of law enforcement, but simultaneously it creates problems of confidence and legitimacy because the premises for the decisions are not explicated.     

Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors That Influence Supreme Court Decisions

This article examines the mass public's perceptions of the factors that actually influence Supreme Court decisions as well those that ought to influence such decisions. We expect significant discrepancies between what the public believes ought to be the case and what it perceives to actually be the case with regard to Supreme Court decision making and that these discrepancies have a significant negative impact on the public's assessment of the Court. More specifically, we hypothesize that the public believes that political factors have more influence on the Court than ought to be the case and that the public perceives traditional legal factors to be less influential than they should be. We find that the expected discrepancies do exist and significantly detract from popular regard for the Court.     

Congress,the Supreme Court,and Judicial Review: Testing a Constitutional Separation of Powers Model

Recent scholarship suggests that the U.S. Supreme Court might be constrained by Congress in constitutional cases. We suggest two potential paths to Congressional influence on the Court's constitutional decisions: a rational‐anticipation model, in which the Court moves away from its preferences in order to avoid being overruled, and an institutional‐maintenance model, in which the Court protects itself against Congressional attacks to its institutional prerogatives by scaling back its striking of laws when the distance between the Court and Congress increases. We test these models by using Common Space scores and the original roll‐call votes to estimate support in the current Congress for the original legislation and the Court's preferences over that legislation. We find that the Court does not appear to consider the likelihood of override in constitutional cases, but it does back away from striking laws when it is ideologically distant from Congress.     

From Bakke to Grutter and Gratz: The Supreme Court as a Policymaking Institution

Finding the best means for ensuring equal opportunities for women and minorities has long been controversial and initial efforts to do so were addressed by executive orders, and later the historic Civil Rights Act of 1964. However, this paper argues, since its initial Bakke decision in 1978, it is the Supreme Court that has set policy in this area. In the twenty-five years between that decision and the recent Gratz and Grutter decisions, the court has shifted in its stance, in many cases declaring unconstitutional what it once sanctioned. That shift has not resulted from changes in laws or new amendments to the Constitution, nor can it be seen as reflecting public opinion, as that is not clear-cut. Rather, affirmative action policy has reflected the ideological stances of the justices sitting at the time a decision was rendered. The paper concludes with an assessment as to what this means for a democracy.     

Confirmation Politics and The Legitimacy of the U.S. Supreme Court: Institutional Loyalty, Positivity Bias, and the Alito Nomination

Gibson, Caldeira, and Spence (2003a, 2003b, 2005) expound the theory of positivity bias in their analysis of the legitimacy of the U.S. Supreme Court in the aftermath of Bush v. Gore. This theory asserts that preexisting institutional loyalty shapes perceptions of and judgments about court decisions and events. In this article, we use the theory of positivity bias to investigate the preferences of Americans regarding the confirmation of Judge Samuel Alito as an associate justice of the Supreme Court. More specifically, from the theory of positivity bias, we derive the hypothesis that preferences on the Alito confirmation are shaped by anterior commitments to the Supreme Court. Based on an analysis of a national panel survey, we find that those who have a high level of loyalty toward the Supreme Court rely much more heavily on what we term judiciousness—in contrast to ideology, policy, and partisanship—in forming their opinions on whether to confirm Alito. Thus, institutional loyalty provides a decisive frame through which Americans view the activity of their Supreme Court.     

Chief Justice Roberts's Health Care Decision Disrobed: The Microfoundations of the Supreme Court's Legitimacy

The 2012 challenge to the Affordable Care Act was an unusual opportunity for people to form or reassess opinions about the Supreme Court. We utilize panel data coupled with as‐if random assignment to reports that Chief Justice Roberts's decision was politically motivated to investigate the microfoundations of the Court's legitimacy. Specifically, we test the effects of changes in individuals' ideological congruence with the Court and exposure to the nonlegalistic account of the decision. We find that both affect perceptions of the Court's legitimacy. Moreover, we show that these mechanisms interact in important ways and that prior beliefs that the Court is a legalistic institution magnify the effect of updating one's ideological proximity to the Court. While we demonstrate that individuals can and did update their views for multiple reasons, we also highlight constraints that allow for aggregate stability in spite of individual‐level change.     

Federalism Outcomes and Ideological Preferences: The U.S. Supreme Court and Preemption Cases

The record of the U.S. Supreme Court in decisions affectingfederal-state relations has been one of inconsistency betweenstates' rights and national supremacy. This inconsistency hasperplexed both legal and political science scholars who havehad great difficulty placing decision-making regarding federalismoutcomes by the Court in any sort of theoretical context. Contraryto much conventional wisdom, ideological preferences do notautomatically translate into federalism outcomes. We extendmodels of judicial decision-making in political environmentsby including state policy. State policy outcomes may be eithermore liberal or more conservative than the policy would be underfederal control. Thus, the ideological preferences of the justicesmay contradict their preferences toward nationalism or statesrights. Testing the model using 94 preemption cases, we findthat individual justices and most Courts are willing to sacrificetheir federalism values in the pursuit of some other policygoal. This finding has implications for both the federalismliterature and strategic models of Court behavior, as well asfor cases the Court is currently reviewing.     

Constitutional law in social choice perspective

Constitutional scholars do not typically employ spatial reasoning in their work. And yet, constitutional jurisprudence and much work in judicial politics implicitly rest on assumptions best cast in spatial terms. These include assuming that positions in constitutional disputes, and the views of Supreme Court justices, generally lie along a common liberal-to-conservative ideological dimension. Although the single dimension assumption is often appropriate, it suffers inherent limitations. First, Supreme Court decision-making rules, both within and across cases, expose problems of dimensionality. Second, important substantive doctrines likewise reveal dimensionality. Third, and finally, throughout the Supreme Court’s history, positions deemed liberal (or conservative) in one period have emerged as conservative (or liberal) in a later period, suggesting that dimensionality is a persistent feature in our jurisprudential history. Social choice proves uniquely suited to explaining these important aspects of constitutional law. After briefly introducing the discipline of constitutional law and its relationship to social choice, this article offers three illustrations of how social choice analysis deepens our understanding of important substantive areas. The analysis exposes dimensionality within Supreme Court decision-making rules, within separation-of-powers doctrine, and over historical shifts in the liberal and conservative valence of once-prominent jurisprudential positions. Failing to appreciate dimensionality, which lies at the core of social choice theory, when studying the Supreme Court and constitutional law risks a truly one-dimensional understanding of a richer and multidimensional institution and body of doctrine.     

Coalition formation on the U.S. Supreme Court: 1969–2009

We apply a fallback model of coalition formation to decisions of the U.S. Supreme Court, focusing on the seven natural courts, which had the same members for at least two terms, between 1969 and 2009. The predictions of majority coalitions on each of the courts are generally borne out by the 5–4 decisions, whereas the predictions of the Martin-Quinn (Political Analysis 10(2):134–153, 2002) model, which assumes a single underlying dimension along which the justices can be ordered, are not. The present model also provides insight into the dynamic process by which subcoalitions build up into majority coalitions and, in addition, identifies “kingmakers” and “leaders” on the natural courts. Furthermore, it provides evidence, from coalitional memberships, that a few justices shifted over time from one ideological camp to another.     

Delaying Justice(s): A Duration Analysis of Supreme Court Confirmations

Presidents traditionally have had great success when nominating justices to the Supreme Court, with confirmation being the norm and rejection being the rare exception. While the confirmation process usually ends with the nominee taking a seat on the Court, however, there is a great deal of variance in the amount of time it takes the Senate to act. To derive a theoretical explanation of this underlying dynamic in the confirmation process, we draw on a spatial model of presidential nominations to the Court. We then employ a hazard model to test this explanation, using data on all Supreme Court nominations and confirmations since the end of the Civil War. Our primary finding is that the duration of the confirmation process increases as the ideological distance between the president and the Senate increases. We also find evidence that suggests that the duration increases for critical nominees and chief justices and decreases for older nominees, current and previous senators, and nominees with prior experience on state and federal district courts .     

Dead or Alive? The Federalism Revolution and Its Meaning for Public Administration

Federalism jurisprudence shapes the powers that public administrators have to achieve policy priorities. Federalism, however, is neither static nor simplistic as a concept, and a proper understanding of the environment in which public administrators work rests on a careful analysis of U.S. Supreme Court decisions. The authors review claims that a 2005 decision, Gonzales v. Raich, terminated a federalism revolution that had been ushered in a decade earlier. Does Raich in fact mark the end of the Supreme Court's federalism doctrine? Analysis of this question clarifies whether the past and current Court has articulated any direction touching on administrators' powers at both the national and state levels. The authors argue that before the federalism revolution is declared dead or alive, public administration can better understand the realities of the Supreme Court's doctrinal boundaries by examining a more detailed analysis of jurisprudence for what is says about the foundations of federalism such as the commerce clause, Fourteenth Amendment, Tenth Amendment, Eleventh Amendment, spending clause, and statutory interpretation issues.