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Public Opinion, the Court, and Justice Kennedy

- June 28, 2013

It has been rather challenging for legal scholars to portray the Supreme Court opinions of the past few days as somehow following logically from precedent or even from the past judgments of individual justices. As University of Chicago law professor Eric Posner puts it on Slate:

[..] trying to find a jurisprudential explanation for this opinion, like the opinions in Fisher and Shelby Country, is a fool’s errand. Same-sex marriage is advancing while affirmative action is receding because that’s what the relevant majorities of the justices care about.

This interpretation fits with what political scientists call the “attitudinal model” of Supreme Court decision making: judges decide cases according to their personal policy preferences even if they cloak their motivations in legal language. The point is not that the law doesn’t matter but that especially on value laden cases with ambiguous precedents justices often manage to find legal interpretations that fit their personal belief systems.

There is an intriguing alternative, or perhaps complementary, explanation: that gay rights are advancing while affirmative action is receding in the Court because that’s what the American public wants. This argument is implied by Patrick Egan’s terrific post here yesterday.[1]

But why would the Court respond to public opinion? Judges are not elected by the public. Isn’t the purpose of a counter-majoritarian institution precisely that it does not follow swings in public mood? Still, political scientists have amassed an impressive array of evidence in favor of the hypothesis that the Court follows changes in public opinion. But why?

There are at least three plausible mechanisms. The first, and most obvious, is that public opinion may influence which judges are nominated and confirmed. John Kastellec, Jeffrey Lax, and Justin Philips find direct evidence (ungated version) for this hypothesis.

Second, justices may care about public opinion for a host of reasons that can conveniently be labelled under the rubric “institutional legitimacy.” This is what Egan alludes to when he evaluates what happens to public opinion after a Court adopts a ruling. The theory is that even the U.S. Supreme Court relies to some extent on voluntary cooperation from other institutional actors. The Court may care, for instance, that its decisions are not overturned by Congress (especially on non-constitutional cases) or that they are interpreted broadly rather than narrowly.  These other actors do depend for their survival on public opinion and thus may pay a higher political prize for undermining the Court when public acceptance of the Court is high. Indeed, politicians may benefit from challenging Court decisions that are unpopular (such as the abortion rulings in some parts of the country), although this is probably more pronounced in settings where the authority of courts is less well established (see current debates over the European Court of Human Rights in the United Kingdom).

I find a third mechanism more intriguing in terms of interpreting this week’s decisions; namely the social-psychological theory that people with more moderate ideological views are more likely to change their views in response to information about what others think. William Mishler and Reginal Sheehan found that:

the impact of public opinion is greatest among moderate justices who are likely to hold critical swing positions on the Court

Respect for and attention to public opinion is easily visible in both of Kennedy’s opinions on the gay rights cases but especially in his dissent in Hollingsworth, where he criticizes the majority for disrespecting the views of the public as expressed through the initiative process:

In the end, what the Court fails to grasp or accept is the basic premise of the initiative process. And it is this. The essence of democracy is that the right to make law rests in the people and flows to the government, not the other way around. Freedom resides first in the people without need of a grant from government.

The role of changing public values and their expression in the democratic process is similarly on display in the Windsor judgment:

For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. That belief, for many who long have held it, became even more urgent, more cherished when challenged. For others, however, came the beginnings of a new perspective, a new insight. Accordingly some States concluded that same-sex marriage ought to be given recognition and validity in the law for those same-sex couples who wish to define themselves by their commitment to each other. The limitation of lawful marriage to heterosexual couples, which for centuries had been deemed both necessary and fundamental, came to be seen in New York and certain other States as an unjust exclusion.

Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community. And so New York recognized same-sex marriages performed elsewhere; and then it later amended its own marriage laws to permit same-sex marriage. New York, in common with, as of this writing, 11 other States and the District of Columbia, decided that same-sex couples should have the right to marry and so live with pride in themselves and their union and in a status of equality with all other married persons. After a statewide deliberative process that enabled its citizens to discuss and weigh arguments for and against same- sex marriage, New York acted to enlarge the definition of marriage to correct what its citizens and elected representatives perceived to be an injustice that they had not earlier known or understood.

I could highlight other cases here (like Lawrence) but I want to focus on the broader hypothesis that changes in public opinion may be important not so much because of the appointment process  or concerns about legitimacy (although I believe these are credible mechanisms) but because Kennedy’s beliefs about what the Supreme Court ought to do are genuinely influenced by changing societal beliefs and their expression in the democratic process. This is an attitudinal model where the attitudes of some justices are more likely to change than those of others.  A speculative conclusion from such a theory is that the outcome of the pro-gay marriage referenda in 2012 may have been as important as any legal argument in shaping the outcome of the gay-rights cases. Both the second and the third mechanisms suggest that a final victory for same sex marriage depends on the continuation of these trends in public opinion and policy (the first suggests that the outcome of the next elections is crucial).

I don’t  have any illusions that I will be able to empirically discriminate between these mechanisms but I find a discussion of these issues more useful than the sometimes rather forced attempts by some legal scholars to make jurisprudential sense out of these decisions (although I understand that is their job).


[1] Evidence for a decline in public support for governmental intervention on behalf of racial minorities is less clear than the positive trends in gay rights. To start with, it depends a lot on what questions you ask. For example, Americans often support affirmative action but reject giving minorities “preferential treatment.” The general social survey finds that only about 35% of Americans now believe that racial differences in outcomes are “due to discrimination” compared to about 45% in the 1980s.