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There is some disagreement about whether the Supreme Court follows public opinion or shapes it. The lifetime tenure the justices enjoy was designed to remove everyday politics from their decisions, protect them from swings in political partisanship, and allow them to choose whether and when to listen to public opinion. More often than not, the public is unaware of the Supreme Court’s decisions and opinions. When the justices accept controversial cases, the media tune in and ask questions, raising public awareness and affecting opinion. But do the justices pay attention to the polls when they make decisions?
Studies that look at the connection between the Supreme Court and public opinion are contradictory. Early on, it was believed that justices were like other citizens: individuals with attitudes and beliefs who would be affected by political shifts.
Benjamin Cardozo. 1921.
The Nature of the Judicial Process . New Haven: Yale University Press. Later studies argued that Supreme Court justices rule in ways that maintain support for the institution. Instead of looking at the short term and making decisions day to day, justices are strategic in their planning and make decisions for the long term.
Jack Knight, and Lee Epstein. 1998.
The Choices Justices Make . Washington DC: CQ Press.
Other studies have revealed a more complex relationship between public opinion and judicial decisions, largely due to the difficulty of measuring where the effect can be seen. Some studies look at the number of reversals taken by the Supreme Court, which are decisions with which the Court overturns the decision of a lower court. In one study, the authors found that public opinion slightly affects cases accepted by the justices.
Kevin T. Mcguire, Georg Vanberg, Charles E Smith, and Gregory A. Caldeira. 2009. “Measuring Policy Content on the U.S. Supreme Court.”
Journal of Politics 71 (4): 1305–1321. In a study looking at how often the justices voted liberally on a decision, a stronger effect of public opinion was revealed.
Kevin T. McGuire, and James A. Stimson. 2004. “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences.”
Journal of Politics 66 (4): 1018–1035.
Whether the case or court is currently in the news may also matter. A study found that if the majority of Americans agree on a policy or issue before the court, the court’s decision is likely to agree with public opinion.
Thomas Marshall. 1989.
Public Opinion and the Supreme Court . Boston: Unwin Hyman. A second study determined that public opinion is more likely to affect ignored cases than heavily reported ones.
Christopher J. Casillas, Peter K. Enns, and Patrick C. Wohlfarth. 2011. “How Public Opinion Constrains the U.S. Supreme Court.”
American Journal of Political Science 55 (1): 74–88. In these situations, the court was also more likely to rule with the majority opinion than against it. For example, in
Town of Greece v. Galloway (2014), a majority of the justices decided that ceremonial prayer before a town meeting was not a violation of the Establishment Clause.
Town of Greece v. Galloway 572 U.S. ___ (2014). The fact that 78 percent of U.S. adults recently said religion is fairly to very important to their lives
Gallup. 2015. “Religion.”
Gallup . June 18, 2015. http://www.gallup.com/poll/1690/Religion.aspx (February 18, 2016). and 61 percent supported prayer in school
Rebecca Riffkin. 2015. “In U.S., Support for Daily Prayer in Schools Dips Slightly.”
Gallup . September 25, 2015. http://www.gallup.com/poll/177401/support-daily-prayer-schools-dips-slightly.aspx. may explain why public support for the Supreme Court did not fall after this decision.
Gallup. 2015. “Supreme Court.”
Gallup . http://www.gallup.com/poll/4732/supreme-court.aspx (February 18, 2016).
Overall, however, it is clear that public opinion has a less powerful effect on the courts than on the other branches and on politicians.
Stimson et al, “Dynamic Representation.” Perhaps this is due to the lack of elections or justices’ lifetime tenure, or perhaps we have not determined the best way to measure the effects of public opinion on the Court.
Public opinion polls have some effect on politics, most strongly during election season. Candidates who do well in polls receive more media coverage and campaign donations than candidates who fare poorly. The effect of polling on government institutions is less clear. Presidents sometimes consider polls when making decisions, especially if the polls reflect high approval. A president who has an electoral mandate can use that high public approval rating to push policies through Congress. Congress is likely to be aware of public opinion on issues. Representatives must continually raise campaign donations for bi-yearly elections. For this reason, they must keep their constituents and donors happy. Representatives are also likely to change their voting behavior if public opinion changes. Senators have a longer span between elections, which gives them time to make decisions independent of opinion and then make amends with their constituents. Changes in public opinion do not affect senators’ votes, but they do cause senators to lose reelection. It is less clear whether Supreme Court justices rule in ways that maintain the integrity of the branch or that keep step with the majority opinion of the public, but public approval of the court can change after high-profile decisions.
Alvarez, Michael, and John Brehm. 2002. Hard Choices, Easy Answers: Values, Information and American Public Opinion. Princeton: Princeton University Press.
Campbell, Angus, Philip Converse, Warren Miller, and Donald Stokes. 1980. The American Voter: Unabridged Edition. Chicago: University of Chicago Press.
Canes-Wrone, Brandice. 2005. Who Leads Whom? Presidents, Policy and the Public. Chicago: University of Chicago Press.
Downs, Anthony. 1957. An Economic Theory of Democracy. New York: Harper.
Lewis-Beck, Michael S., Helmut Norpoth, William Jacoby, and Herbert Weisberg. 2008. The American Voter Revisited. Ann Arbor: University of Michigan Press.
Lippmann, Walter. 1922. Public Opinion. New York: Harcourt, Brace and Co.
Lupia, Arthur, and Mathew McCubbins. 1998. The Democratic Dilemma. Cambridge: Cambridge University Press.
Pew Research Center (http://www.pewresearch.org/).
Real Clear Politics’ Polling Center (http://www.realclearpolitics.com/epolls/latest_polls/).
Zaller, John. 1992. The Nature and Origins of Mass Opinion. Cambridge: Cambridge University Press.
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