The Nexus between Public Opinion and the Supreme Court

June 7, 2009

It is difficult to ascertain the manner in which or the extent to which public opinion shapes, affects, or is incorporated in the decisions of the judiciary. So difficult, in fact, it took a research librarian and myself a couple of days to even find proper research queries–much to my dismay– to yield any pertinent data or information on the subject. Beyond difficulties in obtaining relevant research literature, the literature itself is rife with complexities and, intriguingly, contradictory beliefs and research methodologies; nevertheless, these studies reach similar conclusions. This has, overall, made my research on the nexus between public opinion and the courts exceptionally difficult.

Much debate is present in research literature, focusing on how, if at all, public opinion shapes the decisions of the U.S. Supreme Court and other appellate courts. The way in which researchers attempt to demonstrate and measure the connection between public opinion and the courts varies. In part, methodology itself is subject to scrutiny. This leads to increasing variation in the research literature. Most studies attempt to measure the courts’ tendency to reach more liberal and, conversely, conservative decisions. Despite the contradictions and differences in approach, marked similarities exist in the findings of the research. Public opinion does, in fact, have an impact on the decision-making of justices. The extent to which public opinion, however, influences the decision-making of the justices is not clear. Within this context, on the other hand, it is clear that the political context of the U.S. has a distinct impact on the decision-making capacity of justices. The political context includes two important elements that influence the court’s’ calculus: public mood and social mood. The following is an imprecise definition of both terms but, nonetheless, fulfills the working purposes of this journal. The public mood is loosely understood to be linked to economic perceptions of the public, and social mood is the demand (or lack thereof) for social progress which is manifested in various ways.

Another important facet is that when a unified government exits, partisan control of Congress and the Executive, public opinion and a justice’s individual preferences are not likely to influence the decision-making of the justices. Rather, when power struggles exist in Congress and the Executive or between those bodies, public opinion is relied upon in the sense that it supports the manner in which a justice reaches their decision, despite it possibly being at odds with the desires of the two other branches of government and those in power therein.

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