Home > News > How blistering dissents help some Americans trust the Supreme Court
149 views 9 min 0 Comment

How blistering dissents help some Americans trust the Supreme Court

That includes Kagan’s sharp dissent in Brnovich v. Democratic National Committee

The Supreme Court on Thursday released its decision in the closely watched Brnovich v. Democratic National Committee. The court ruled that Arizona’s election laws that throw out ballots cast in the wrong precinct and ban ballot harvesting do not violate the Voting Rights Act. Justice Elena Kagan wrote a scathing dissent in the split decision, which included the six conservative justices on one side and the three liberal justices on the other. She accused the majority opinion of inhabiting a “law-free zone” and ignoring the text of the Voting Rights Act to base “its decision on a list of mostly made-up factors.”

By contrast, in its recent decision in Fulton v. City of Philadelphia, the Supreme Court unanimously ruled that the city could not end a foster-care service contract with a Catholic group that, based on its religious beliefs, refused to place children with same-sex couples. Some pundits have suggested that this unanimous decision means the court is committed to upholding the rule of law and does not decide cases in accordance with our polarized partisan politics.

Political scientists’ conventional wisdom suggests the unanimous decision in Fulton on a high-profile, polarizing issue should bolster the legitimacy of the Supreme Court. Meanwhile, the decision in Brnovich should harm the court’s legitimacy by making it seem political. Our research, however, suggests that might not necessarily be the case.

From Barrett’s confirmation to today’s voting rights decision, everyone is debating ‘legitimacy.’ Here’s what it means.

How we conducted our study

We conducted our experimental survey through Amazon’s Mechanical Turk, asking 1,123 people their opinion on a constitutional issue about campaign finance laws. After being asked, we had them read a hypothetical Supreme Court decision that disagreed with their stated point of view. As with most Mechanical Turk samples, the sample was younger, more liberal and more educated than the American population. We divided the sample into five randomly assigned groups. Approximately one-fifth read a decision with no dissent. Another fifth read a dissent that claimed that the majority was deciding cases for purely political reasons and explicitly accused the majority of imposing their own ideological values on society without any legal justification.

The remaining three-fifths read a decision accompanied by one of three legalistic dissents: one stating the majority failed to appropriately balance the government’s interests with the rights of individuals; another arguing the majority did not accurately apply relevant precedent; and a final one claiming that the majority was not adhering to the original meaning of the text of the Constitution.

We also asked respondents how the court should make decisions. We created scales that separated our sample into those who want a legalistic court and those who want a court that follows a doctrine called “popular constitutionalism.” Popular constitutionalism is a judicial philosophy that largely rejects the idea that judges should be the only ones who decide the meaning of the law and gives greater weight to popular interpretations of the Constitution. Popular constitutionalists think that judges should pay attention to public opinion when deciding cases, arguing that doing so would give the courts greater democratic legitimacy and thus strengthen the rule of law.

At the end of the survey, we asked a variety of questions to measure whether the respondent perceives the Supreme Court as legitimate, and whether they accepted the hypothetical decision or wanted to challenge it.

The Supreme Court’s Voting Rights Act case could gut civil rights protections. Then what?

Different groups of Americans expect different things from the Supreme Court

One group said they preferred a purely legalistic court that operates outside of the influence of politics or public opinion. When this group read about dissenting opinions, they were less likely to perceive the court as legitimate and were less likely to accept the decision.

Things were quite different for those who think the justices should consider public opinion. When this group read about dissenting opinions, they were more likely to perceive the court as legitimate. It didn’t matter which kind of dissent the respondent read; they generally reacted the same way to legalistic dissents and politicized dissents.

Mechanical Turk respondents do not represent the United States at large, and so we cannot say precisely what percentage of the population actually supports popular constitutionalism. However, of our group, 24 percent supported this approach. In a 2001 national poll, 68 percent of Americans said they want the Supreme Court to at least consider public opinion when making its decisions. There is little reason to think that this desire for a more representative court has decreased, especially as pollsters are finding high levels of public support for judicial elections and various types of court-curbing designed to bring the court in line with public opinion.

Biden is considering reforming the Supreme Court. That’s happened during every crisis in U.S. democracy.

Apparently some Americans prefer decisions with dissenting opinions

Our results suggest we should be cautious before concluding that either unanimous or split decisions improve or erode the court’s legitimacy in the public’s minds. The content of dissents also do not appear to affect legitimacy, even when they explicitly accuse the majority of ideological bias. Rather, even if justices write purely legalistic arguments, some portion of the public will see any dissents as further evidence that the judiciary has been overtaken by political polarization, and lose some faith in the court. For this group of people, unanimous decisions should improve the court’s legitimacy, and dissenting opinions may harm legitimacy.

But their reaction is likely to be washed out by the fact that another portion of Americans support popular constitutionalism and respond positively to dissents of any kind. They see dissents as evidence that the court is like the other political branches of government — debating the issues and coming to a decision that best represents the will of the people.

As with most years, the end of this Supreme Court’s term saw the release of decisions on some of the most contentious cases from the previous year. Our research suggests that popular constitutionalists evaluate the court and interpret its actions quite differently than do legal traditionalists. For one group, a dissent is a troubling sign of politicization. For the other, it is a promising signal of representation. These two groups almost certainly interpret many other court actions in diverging ways.

Don’t miss any of TMC’s smart analysis! Sign up for our newsletter.

Christopher M. Parker is an assistant professor of political science at the University of Rhode Island, with a focus on judicial politics and constitutional law.

Benjamin Woodson is an associate professor of political science at the University of Missouri at Kansas City, with a focus on political psychology and public opinion toward the judiciary.