Recently Democrats and pundits have been discussing changes to the Supreme Court, weighing expanding the number of Supreme Court justices and giving them term limits. Democrats aren’t the only ones who support change; for instance, Sen. Ted Cruz (R-Tex.) pushed this during the 2015 Republican primaries. But since Senate Majority Leader Mitch McConnell (R-Ky.) refused to consider President Barack Obama’s Supreme Court nomination of Merrick Garland in March 2016, such prominent Democrats as Eric Holder and Elizabeth Warren have argued that Republican violations of long-standing norms require significant changes to the court.
How do citizens think about such major institutional changes? I’ve explored whether “prospect theory” from behavioral economics can tell us anything more than we might learn from familiar explanations as partisanship, psychological attachment to the institution, and ideological agreement with the court.
How do people actually think about change?
Prospect theory argues that most individuals do not weigh decisions objectively; rather, they are influenced by whether they think they have something to gain or something to lose. For instance, in a classic experiment, researchers asked one group of college students what they would be willing to pay to acquire university mugs and pens, while another group was given identical objects at the start of the study and then asked how much it would take to sell them. The students in the first group were consistently willing to pay less for the objects than the amount that students in the second group required to part with them. The insight is that losses loom larger than gains; the rewards of gaining something are smaller than the pain of losing that same thing.
Similarly, research finds that when offered the choice between a sure loss or a gamble in which they could lose either twice as much or nothing at all, they will choose the gamble. Conversely, when people stand to gain something, they will generally pick a sure thing over taking a gamble that would offer either nothing or quite a bit more than the sure thing.
What might this mean for thinking about changing an institution as significant as the U.S. Supreme Court? If prospect theory applies, then citizens who believe that the court brings them significant benefits, or who expect to benefit from its future judgments, should be likely to resist any changes that might risk that gain. Similarly, those who feel they have not benefited from the court’s judgments, or who expect to lose something in future decisions, should be more willing to risk changing how the court operates to avoid those losses. To test this, I fielded a national survey in 2019 through the Cooperative Congressional Election Study.
Looking backward and forward
When Americans think about the Supreme Court, are they thinking about gains or losses? To find out, I conducted an experiment that involved asking how respondents think society and people like themselves have been affected by the court’s decisions. All respondents were asked to answer both questions on a seven-point scale that ran from “benefited a great deal” to “been hurt a great deal.” These questions let me measure how respondents thought about benefits or losses they may have gotten from the court. The experiment involved asking half the respondents about the court’s influence over the past 75 years — an era that included decisions from the Warren court strengthening voting rights as well as landmark decisions like Brown v. Board of Education. I asked the other half to evaluate the court’s effects over the past 15 years, a period of growing conservatism due to a disproportionate number of appointments by Republican presidents.
I then asked how respondents expected the court to affect society and people like themselves during the next 15 — or 75 — years. I also altered the question wording so a third of respondents were asked how they would be “influenced by” the court, a third were asked how they might “benefit from” future decisions, and a third were asked how society and people like them might be “hurt by” future decisions of the court. Respondents answered on a six-point scale, running from “substantially better off” to “substantially worse off.” From that, I assess whether respondents expect gains or losses from the court.
Not surprisingly, given the court’s current conservative makeup, Republicans expect to benefit more from future decisions of the court than do Democrats. Partisanship, however, is only weakly related to respondents’ past evaluations of benefits and their expectation of future gains from the court.
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Americans would support changing the court
I also asked whether respondents would support “change” on the court. The first question left it just that generic. The next three questions asked whether they’d support three specific measures: adding justices to the court above its current nine-person membership; instituting an 18-year term limit for justices; and electing rather than appointing Supreme Court justices.
A majority, 62 percent of respondents, support changing the court in some respect. Seventy-three percent endorse term limits; 60 percent support electing justices directly; and 51 percent support changing the number of justices, the one proposal that would not require a constitutional amendment. These percentages should, perhaps, be interpreted with some caution, as they could differ from what respondents would express without being previously exposed to questions about the court’s influence and the manipulations embedded in those questions. However, my findings regarding support for term limits and adding justices are within 5 percentage points of results from another national poll asking similar questions last month.
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I used two statistical models to see whether the belief in past gain or loss or the expectation of future gain or loss influenced respondents’ support. Those who expect more benefits from the court in the future are likely to resist change. What people believed about past gains or losses didn’t influence their support for changing the court. Not surprisingly, Democrats were more likely to favor changes than Republicans. Similarly, those who believe the court makes decisions that are consistent with their ideology are more likely to resist change — but that’s not as important as partisanship or expectations of gains or losses. This research demonstrates there is substantial support for changing the court and that people’s perceived expectations about gains and losses matter in thinking about changes to this pivotal institution.
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Eileen Braman is an associate professor of political science at Indiana University.