Public Opinion, Public Support, and Counter-Attitudinal Voting on the U.S. Supreme Court

Public Opinion and Setting the Agenda on the U.S. Supreme Court

“…Baum (2006, p. 66) writes that there are some cases where “a potential threat to legitimacy appears to be substantial and immediate.” Moreover, Hall (2014) finds that the Court is most responsive to public opinion on the merits, in its quest to secure compliance, when cases have received media attention. Bryan and Kromphardt (2016) likewise find that justices are most likely to deviate from their own ideological preferences in favor of public opinion in highly salient cases. By contrast, justices should be free to ignore public opinion in nonsalient issues because there is little threat of retaliation against unpopular decisions on the merits if the issue (and the decision) never make it into the public’s consciousness.…”

“…In other words, it assumes that the country would equally prefer liberal decisions for all cases within a term—from economics, to civil liberties, to defense. However, recent work finds that there is actual meaningful variation in American public opinion between issues (Bryan & Kromphardt, 2016; Coggins, Stimson, Atkinson, & Baumgartner, n.d.; Rice, 2014). In a given term, the country might be relatively conservative on, for example, civil rights but quite liberal on economics.…”

“…On the whole, these studies find that when the country’s general mood is more liberal (conservative), the Court is more prone to side with liberal (conservative) litigants. Some studies suggest justices are merely influenced by the same prevailing winds of ideological change that affects public opinion (Giles et al, 2008; McGuire & Stimson, 2004) and others suggest justices are directly constrained by public opinion (Bryan & Kromphardt, 2016; Casillas et al, 2011; Hall, 2014). Reasons for deference to public opinion include institutional maintenance and concern over the long-term legitimacy of the Court (Bryan & Kromphardt, 2016; Casillas et al, 2011) and the desire to have individual decisions implemented by elected (and thus electorally responsive) branches (Hall, 2014).…”

“…They must also consider public opinion. This is especially true given that Bryan and Kromphardt (2016) find that under certain circumstances justices actually vote against their ideological preferences on the merits in favor of public opinion. Thus, if justices are forward-looking at the agenda-setting stage, they should avoid granting cases where their preferences over the merits would be at odds with the American people.…”

“…With deep support from the public, justices are more free to make the occasional unpopular decision without the fear of backlash or nonimplementation from the elected branches, who wield both the powers of the purse and the sword. Without public trust in, and support for, the Court, justices make fear the public will not take its side when elected officials threaten to ignore or circumvent the Courts rulings (Bryan & Kromphardt, 2016).…”