Posted in: United States

The Court and the People

By | February 7, 2017

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“No matter whether the country follows the flag or not, the Supreme Court follows the election returns,” wrote the Chicago humorist and author Finley Peter Dunne in 1901. More than a century later, many legal scholars and historians take Dunne’s famous quip—which identified a relationship between Supreme Court decisions and popular opinion—as gospel. There has been no shortage of literature in recent years arguing that Supreme Court justices are swayed by political trends and prevailing public sentiment when deciding cases, sometimes at the expense of the constitutional text. Moreover, despite common conceptions of judicial independence, the Court rarely advances beyond the bounds of popular opinion. In landmark cases, such as Brown v. Board of Education and Obergefell v. Hodges, the Court’s rulings have consistently been preceded by widespread shifts in social and political attitudes. On the other hand, many scholars have argued that the Court has the ability to effect meaningful change. So what exactly is the nature of the relationship between the Supreme Court and public opinion?

The Will of the People

One theory is that Supreme Court decisions closely align with public opinion because the Court requires popular support in order to function. In his book The Will of the People, Barry Friedman, a professor at the New York University School of Law, argues that when the Supreme Court invalidates actions of other branches of government, it is in fact “enforcing the will of the American people.” Friedman argues that the justices and the public are partners in a “marriage” that justifies judicial review—a marriage that persists “so long as the justices’ decisions [remain] within the mainstream of popular understanding.” And since the Court is accountable to the will of the majority, the justices for at least the last seventy years have made sure that their decisions have been more or less in tune with public opinion. Friedman points out that for the Court to be aligned with public opinion does not necessarily require that every Justice be so aligned—he told the HPR that “at some level, it’s only the median justice that’s required if the Court is split.” Similarly, Matthew Hall, a professor at the University of Notre Dame, has suggested that the Supreme Court is constrained by public opinion insofar as it fears that non-judicial actors, such as schools or government agencies, will refuse to implement unpopular decisions. Hall argues that without the ability to enforce its decisions, the Court is reluctant to alter policy in areas of public interest contrary to popular opinion.

It is certainly true that the Court’s power is limited. Justices cannot implement their own decisions, and in all instances, the Court must rely on other institutional actors to enforce its rulings. In the Federalist Papers, Alexander Hamilton predicted that the judicial branch would be “beyond comparison the weakest of the three departments” of the federal government, with “no influence over either the sword or the purse.” And while the Court’s power today far exceeds what Hamilton would have envisioned, the Court remains vulnerable to political retaliation, whether in the form of jurisdiction-stripping (Congress’ power to regulate the Supreme Court’s jurisdiction), impeachment of justices, or Court-packing.

Both Hall and Friedman note that how much external pressure influences the Court depends largely upon case salience. After all, it is remarkable how invisible Supreme Court decisions can be. As Friedman has written in the New York Times, “most cases get decided with little fanfare” and “deal with mundane issues that, whatever their legal interest, hardly gain a toehold in the public’s short attention span.” Only high-profile cases—ones that tend to deal with volatile civil rights and social issues, such as abortion—attract the attention of the general public. And in these cases, the Justices’ concerns about the Court’s image and its legitimacy render them reluctant to challenge popular opinion too directly. This is nothing new. Over 200 years ago, in Marbury v. Madison, Chief Justice John Marshall was exceedingly careful to ensure that his opinion did not issue orders that the losing party (Secretary of State James Madison and President Thomas Jefferson) would have been able to defy, thus defending the stature of his nascent Court. In the landmark 1954 decision in Brown v. Board of Education, in which the Court ruled that racial segregation in public education was unconstitutional (and then again in Brown II, which imposed its remedial decree), the Justices’ internal deliberations reveal their preoccupation with avoiding a ruling that could not be enforced. As Hall explained in an interview with the HPR, “a consistent failure of the Court to implement its decisions would undermine [its legitimacy] in the long run, which would reduce its ability to function.”

The Will of the Justices

However, it may be important to distinguish between the ability and the willingness of justices to make sweeping decisions that challenge the status quo. Michael Klarman, a legal historian and professor at Harvard Law School, told the HPR that in a majority of cases, “[justices] have a lack of inclination to do things that are dramatically contrary to public opinion.” Klarman attributes this reluctance to a variety of reasons. For one, Supreme Court justices are still a part of the greater society and are influenced by the same cultural biases and trends that affect all Americans. As the great Supreme Court justice Benjamin Cardozo put it, “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” In addition, the justices belong to the same historical moment as their fellow Americans, which makes it unlikely that their rulings will deviate substantially from the moral standards of their era.

Therefore, in a case such as Plessy v. Ferguson (1896), where the Court upheld the constitutionality of racial segregation mandated by state law, Klarman argues that the Justices had no inclination to invalidate the law, rather than suggesting that they declined to do so out of concern about implementing such a decision. By the 1890s, racial attitudes and practices in the United States had drastically regressed, eliminating the progress that had been made during Reconstruction. And among the eight justices deciding Plessy (one of the Justices did not participate) were a Confederate soldier who may have belonged to Klan-like organizations, a prominent opponent of black suffrage during the Civil War, and a former slave owner who had opposed emancipation after the war. In this context, most Justices probably regarded segregation as morally and legally permissible, and had no inclination to end the practice.

Korematsu v. United States (1944), where the Court upheld the constitutionality of an executive order excluding 120,000 persons of Japanese ancestry (two-thirds of whom were citizens of the United States) from their homes and ordering them into internment camps during World War II, illustrates the same point.Today, the decision is rightfully seen as one of the Court’s greatest historical blunders, but at the time public opinion was overwhelmingly in favor of the internment. A Japanese invasion of the West Coast was widely viewed as imminent, and the outcome of the war was very much in doubt.The justices who upheld the internment, just like the American population at large, were mindful of the attack on Pearl Harbor that preceded the exclusion order, and the nation had a long history of discrimination against Asians. Consequently, the exclusion and internment order elicited virtually no protest, either by public figures, the press, or traditional rights-protecting organizations. The justices may well have doubted that an order invalidating the internment would have been complied with at the time, but there is also no evidence to suggest that they had any desire to contravene popular opinion.

On other issues, however, especially regarding social reform, the personal predilections of the justices do not always line up precisely with contemporary public opinion. For example, the justices were troubled by racial segregation before most Americans, leading them to overrule Plessy in Brown, even though public opinion was still very much split on the issue. And the Court ruled in Engel v. Vitale (1962) that even voluntary, nondenominational prayer in public schools was unconstitutional, although most Americans at the time disagreed. Klarman explains this phenomenon by noting that Supreme Court justices constitute an “elite subgroup of very well-educated, relatively affluent people”—a subgroup that tends to be more liberal on many issues of social reform.

The Backlash Thesis

In such cases, the justices’ culturally elite status may lead them to deviate from popular opinion. Yet such decisions can sometimes harm, rather than help, the causes that they ostensibly seek to advance. Throughout history, controversial Court decisions have often mobilized opponents of the rulings, generating powerful backlashes that retard the causes at issue. As Klarman explained, “there’s a limit to how much courts might be able to push the country further in the direction it’s already moving.” This “backlash” phenomenon has played out in many cases, such as Roe v. Wade and Brown, but is perhaps most graphically illustrated by Furman v. Georgia, where the Court invalidated all of the nation’s existing capital punishment schemes. This 1972 ruling threatened to permanently bar the death penalty because of the apparent arbitrariness with which it was being applied, (rather than ruling that capital punishment was in itself necessarily a “cruel and unusual punishment”).

The backlash to this decision was immediate and enormous. Support for capital punishment increased from 50% to 62% in just 2 years, and 35 state legislatures hurriedly reformed their death penalty statutes in an effort to satisfy the Court’s new requirements. Just four years later, the Court seemed to completely reverse course, approving the new generation of death penalty statutes. Klarman argues it was the Court’s “failure to arrive at a compromise position that would have appealed to the median voter” (for example, invalidating the death penalty only for certain crimes, such as those in which nobody was killed) that generated this backlash. Essentially, when the Court outstrips public opinion, it risks significantly retarding the movement the Justices may ostensibly be trying to advance.

To be sure, positive results can also emerge from controversial judicial decisions. Thomas Keck, a professor at Syracuse University’s Maxwell School, pointed out in an interview with the HPR that while “controversial rights-protecting judicial decisions can provoke increased mobilization by opponents of the judicial decision,” they can also “provoke increased mobilization by supporters”; both sides of the ledger deserve attention. Keck argues that over time, advocates of social change have often been successful at using litigation, among other tools, to accomplish their objectives. This litigation need not commence with a Supreme Court victory, as in Brown v. Board of Education. For example, on the issue of marriage equality, the Supreme Court did not enter the fray until the reform movement was well on its way to success. By the time the Supreme Court ruled in favor of marriage equality in Obergefell v. Hodges in 2015, victories had already been achieved in 37 states, through lower court rulings, state legislation, and referenda. Keck concedes that litigation does not always work, and even when it succeeds it may not be the main causal force leading to policy change, but he insists that courts can represent a promising forum for those unable to effect change through the political process.

The Court Today

At a time when many believe that picking Supreme Court justices is the most important task of the President, and that one of the most consequential issues at stake in last year’s presidential election was the future of the Supreme Court, one might easily argue that the power of the justices has become excessive. Moreover, at a time when the Court seems to divide five to four across consistent ideological lines on nearly every important constitutional law issue, Senate Republicans refused to even hold a hearing on President Obama’s nomination of Judge Merrick Garland to the Supreme Court, and the Republican Party was temporarily contemplating blocking any future nominations indefinitely, one might easily conclude that the Court has become too politicized. So precisely what purpose does the Supreme Court serve today?

Friedman, the NYU law professor, maintains that the Court, and judicial review, “serves an incredibly important separating function in society—to help us keep clear the difference between our deeper, more fundamental constitutional values, and our everyday political preferences.” By deciding constitutional questions, the Court raises their salience in public debate and forces the nation to consider its deepest commitments on issues such as abortion rights, the influence of money in politics, and same-sex marriage. Sometimes, the Court’s ruling may mobilize opponents, resulting in counter-legislation or other forms of backlash. Other times, supporters may coalesce around the decision and foster its acceptance by society. Yet whatever the future political composition of the Supreme Court, history tells us that its rulings will remain more or less in step with the evolving views of America. Almost two hundred years ago, the keen French political scientist Alexis de Tocqueville observed that the power of Supreme Court justices is “immense, but it is power springing from opinion.” And perhaps that’s not such a bad thing.

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