Solimine, Michael E.

Walker, James L.

English

University of Minnesota Law School

University of Minnesota Law SchoolScholarship RepositoryConstitutional Commentary1994The Supreme Courte, Judicial Review, and thePublic: Leadership Versus DialogueMichael E. SolimineJames L. WalkerFollow this and additional works at: https://scholarship.law.umn.edu/concommPart of the Law CommonsThis Article is brought to you for free and open access by the University of Minnesota Law School. It has been accepted for inclusion in ConstitutionalCommentary collection by an authorized administrator of the Scholarship Repository. For more information, please contact lenzx009@umn.edu.Recommended CitationSolimine, Michael E. and Walker, James L., "The Supreme Courte, Judicial Review, and the Public: Leadership Versus Dialogue"(1994). Constitutional Commentary. 748.https://scholarship.law.umn.edu/concomm/748THE SUPREME COURT, JUDICIAL REVIEW, AND THE PUBLIC: LEADERSHIP VERSUS DIALOGUE* Michael E. Solimine** James L. Walker*** [T]he most interesting thing about the great flag-burning debate of the late 1980s would be how quickly that debate evaporated . ... . . . I can't even remember what my own opinion was on the flag issue, though I remember I had a strong one. -P.J. O'Rourke! In his article, Dialogue and Judicial Review,z Barry Fried-man poses a trenchant challenge to some received wisdom of American constitutional law. Much constitutional discourse is predicated on the assumption that the United States Supreme Court is a counter-majoritarian institution, and normative theo-ries supporting the exercise of judicial review are seen, by some, as having to accommodate that fact. Many writers make this ac-commodation by showing that the other branches of government are not majoritarian.J Friedman takes a different tack. Accord-ing to Friedman, the assumption of counter-majoritarianism is wrong, for there are several indicia that the Court is a majoritarian political institution and in particular that it does re-spond to, and in turn influences, public opinion. Thus, as Friedman notes, the Court sometimes makes refer-ence to legislative enactments among the various states when * Copyright © 1994 by Michael E. Solimine and James L. Walker. ** Professor of Law, University of Cincinnati College of Law. B.A., 1978, Wright State University; J.D., 1981, Northwestern University. *** Professor of Political Science, Wright State University. B.A., 1963, Santa Clara; M.A., 1964, Ph.D., 1974, University of California at Berkeley. 1. P.J. O'Rourke, Parliament of Whores: A Lone Humorist Attempts to Explain the Entire U.S. Government 77 (Atlantic Monthly Press, 1991). 2. 91 Mich. L. Rev. 577 (1993). 3. See Harry H. Wellington, Interpreting the Constitution: The Supreme Court and the Process of Adjudication 28-30 (Yale U. Press, 1990). 1 2 CONSTITUTIONAL COMMENTARY [Vol. 11:1 rendering a decision;4 "[p]ublic opinion polls establish that, con-trary to common thought, judicial decisions often gamer substan-tial public support";s and polls show that the public, in general, holds the Court in high regard.6 Moreover, the public can indi-rectly influence judicial decisions through the appointment pro-cess, since Presidents usually nominate Justices with compatible ideologies.7 In short, "[t]he Court facilitates and shapes the con-stitutional debate''s since its decisions are generally consistent with, and to some extent formative of, the public's views of the issues which reach the Court. Friedman's contribution to our understanding of constitu-tional law is important because it focuses on the supposed empir-ical underpinnings of the counter-majoritarian assumption. Unfortunately, we think that Friedman's use and interpretation of social science data is partially flawed. That data is more com-plex and nuanced than he indicates, and this fact calls into ques-tion the breadth of some of the conclusions he reaches.9 First, the polling data with respect to public support of par-ticular decisions is, at best, equivocal. As Friedman himself notes, with some cases, such as the flagbuming decisions of 1989 and 1990,10 solid majorities of the public seem to be opposed to the results.u Many other decisions, in contrast, receive support in the polls. But on the whole, the data does not tell us much. The leading work is that of Thomas Marshall, who has associated the results of 139 decisions in fully argued Court cases to nation-wide polls on those cases. Of that number, about 55% were con-sistent with the will of the majority as revealed by the poll.t2 This percentage is hardly awe-inspiring, and may, in fact, just as easily 4. Friedman, 91 Mich. L. Rev at 597 (cited in note 2). The best example is the Court's death penalty jurisprudence. 5. ld. at 607. 6. Id. at 624. 7. I d. at 675-76. 8. ld. at 654. 9. To be sure, Friedman frames his article as a response to the legal community, and not to political scientists as such. ld. at 586 n.41. Nonetheless, his project is explicitly a descriptive one, and he refers at several points to studies by political scientists, including a number discussed in this paper. ld. at 624 n.235 (citing works by Marshall and Caldeira and Gibson). Thus, we are evaluating him on his own terms. 10. United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989). 11. Friedman, 91 Mich. L. Rev. at 605-06 (cited in note 2). 12. Thomas R. Marshall, Public Opinion and the Supreme Court 71-79 (Unwin Hy-man, 1989) (data from 1935-1986) ("Supreme Court") (if "unclear" decisions are not in-cluded, agreement rises to 63% in the years 1935-86); Thomas R. Marshall, Public Opinion and the Rehnquist Court, 74 Judicature 322 (1991) (data from 1986-1990) ("Rehn-quist Court"). 1994] CORRESPONDENCE 3 be used to demonstrate a lack of public support for the Court's decisions. There are also several other problems attendant to such associations: only a tiny fraction of Court decisions have been studied, and the polling questions themselves, of necessity, often oversimplify the holding of a case.tJ Moreover, the vast majority of Court decisions escape the scrutiny of public opinion polls entirely. It may be true that the polls tell us that the Court possesses relatively high levels of public prestige and support, especially as compared with other American institutions.l4 One recent study found a high correlation over the past three decades between the ideological mood of the public and all Court decisions, when the latter are categorized as either liberal or conservative.ts But here, too, the evidence is equivocal. The Court's public support has declined during periods, such as the Warren era, when the Court rendered controversial decisions, some of which engen-dered significant public opposition.t6 Likewise, the Court's pub-lic support is largely diffuse and, with the exception of opinion leaders, seems largely divorced from the satisfaction of particular policy preferences.17 One might say that the Court receives the most public support just when it needs it the least. Finally, we think that Friedman's metaphor of an interactive dialogue between the Court and public is, at best, incomplete. He envisions the Court as rendering decisions, which generate reaction among attentive publics, such as Congress. Congress might then make laws which, in turn, may be subject to legal challenge and eventually reach the Court again. The Court may thus be viewed as synthesizing and focusing the debate over im-portant public issues, and as placing issues on the policy agenda.ts This normatively appealing vision, taken at its broadest, is premised on several unrealistic assumptions. The public at large is uninformed about the Court or its decisions, and indeed large 13. Gregory A. Caldeira, Courts and Public Opinion, in John B. Gates and Charles A. Johnson, eds., The American Courts: A Critical Assessment 303, 304-13 (Congressional Quarterly Press, 1991). 14. Marshall, Rehnquist Court at 326 (cited in note 12). 15. William Mischler and Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Deci-sions, 87 Am. Pol. Sci. Rev. 87 (1993). 16. Gregory A. Caldeira, Neither the Purse Nor the Sword: Dynamics of Public Con-fidence in the Supreme Court, 80 Am. Pol. Sci. Rev. 1209 (1986). 17. Gregory A. Caldeira and James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 Am. J. Pol. Sci. 635, 658-59 (1992). 18. Friedman, 91 Mich. L. Rev. at 669-70 (cited in note 2). 4 CONSTITUTIONAL COMMENTARY [Vol. 11:1 segments of the public possess incorrect knowledge about Court decisions.t9 Much of the blame can probably be assigned to the news media, whose reporting on court decisions is almost invaria-bly dominated by sound bites.w But some of the blame might also rest with members of the other branches of government who distort the Court's decisions for political gain. Friedman's principal examplezt of the Court as a facilitator of debate, Roe v. Wade and its progeny, is not a compelling one. Whatever else one thinks about the decision, the dialogue it set off seems to have, to this day, largely polarized the public over the entire abortion issue. That is, especially with regard to the legality and public funding of discretionary abortions, the pro-life and pro-choice factions appeared to have hardened their respec-tive positions.zz The dialogue metaphor is also weakened by the lack of any apparent direct causal mechanism between the Court and the public. To be sure, there are indirect mechanisms identi-fied by Friedman, such as the appointment of Justices by like-minded Presidents. Similarly, any judge is a product of her envi-ronment, and surely social and political mores, which change over time, are reflected in the Justice's decisions in cases. But having said that, there is little or no explicit recognition in the Court's decisions that public opinion, or previous or antici-pated public reaction, is a driving force. In some areas, substan-tive doctrines are informed by indicia of public sentiment.23 But 19. Marshall, Supreme Coun at 142-46 (cited in note 12). Compare Christopher L. Eisgruber, Is the Supreme Coun an Educative Institution?, 67 N.Y.U. L. Rev. 961, 1007-10 (1992) (arguing that at least some of public is competent enough to engage in dialogue with the Court); Charles H. Franklin, Liane C. Kosaki and Herbert M. Kritzer, The Sali-ence of U.S. Supreme Court Decisions 25 (delivered at annual meeting of the American Political Science Association, Washington, D.C., Sept. 2-5, 1993) (on file with authors) (new polling data shows that "[t]he picture of the public as minimally aware and generally ignorant of the Court's actions is ... simply wrong."). 20. Elliot E. Slotnick, Media coverage of Supreme Court decision making: problems and prospects, 75 Judicature 128 (1991). Elliot E. Slotnick and Jennifer A. Segal, Televi-sion News and the Supreme Coun (delivered at annual meeting of the American Political Science Association, Chicago, Sept. 3-6, 1992) (on file with authors). 21. Friedman, 91 Mich. L. Rev. at 647-48, 658-68 (cited in note 2). 22. Charles H. Franklin and Liane C. Kosaki, Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion, 83 Am. Pol. Sci. Rev. 751 (1989). For similar conclusions drawn about the abortion debate, see Ruth Colker, Abonion & Dia-logue: Pro-Choice, Pro-Life, and American Law 114-25 (Ind. U. Press, 1992); Mary Ann Glendon, Rights Talk: The Impoverishment of Political Discourse 164-68 (The Free Press, 1991); Michael J. Perry, Morality, Politics, and Law: A Bicentennial Essay 175-77 (Oxford U. Press, 1988). It was precisely her view that Roe v. Wade may have had this effect that has raised questions about Ruth Bader Ginsburg's commitment to abortion rights. See Ruth Bader Ginsburg, Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C. L. Rev. 375, 381-86 (1985); Ruth Bader Ginsburg, Speaking in a Judicial Voice, 67 N.Y.U. L. Rev. 1185, 1199-1209 (1992). 23. Friedman, 91 Mich. L. Rev. at 597 (cited in note 2). 1994] CORRESPONDENCE 5 the vast majority of opinions make no allusion to this factor.z4 Indeed, the Court will often take pains to point out that the law demands a result, irrespective of popular win.zs And, as in a Planned Parenthood of Southeastern Pennsylvania v. Casey,z6 sometimes the Court seems to be explicitly leading, rather than following, the public.27 It is difficult to demonstrate, in any sort of systematic way, that public opinion influences Court decision-making.zs Despite our reservations, we agree with Friedman's broad conclusions. But we think the overall data about public opinion leads to a restatement of the problem. Majoritarianism is not a dichotomous variable, but is instead continuous. It is dangerous for any branch, elected or not, to be too majoritarian. In our political culture, references are often made to the "tyranny of the majority."z9 Over time, over generations,3o the Court is as majoritarian as any other branch of government is, or ought to be. One of the functions of leadership is to create new majori-ties, and the Court has a leadership role as important as that of any other branch of government, as measured by public support and acceptance (or acquiescence) in its decisions. Shifting majorities of the public do disagree with many deci-sions, to the extent they perceive them, or are simply ignorant of 24. See Marshall, Supreme Court at 31-55 (cited in note 12); Marshall, Rehnquist Coun at 327-28 (cited in note 12). 25. Examples are legion. One relevant one is United States v. Eichman, 496 U.S. 310, 318 (1990) ("any suggestion that the Government's interest in suppressing speech becomes more weighty as popular opposition to that speech grows is foreign to the First Amendment."). 26. 112 S.Ct. 2791 (1992). 27. ld. at 2816 (Opinion of O'Connor, Kennedy, and Souter, JJ.) (Court will "speak before all others for [the American people's] constitutional ideals."). Cf. id. at 2882 (Scalia, J., concurring in the judgment in part and dissenting in part) (characterizing this language as a "Nietzschean vision of us unelected, life-tenured judges-leading a Yolk .... "). 28. Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model 240 (Cambridge U. Press, 1993). 29. The term tyranny of the majority is often associated with the 19th century de Tocqueville, but it actually dates as far back, at least, as the debates over ratification of the Constitution. ("A bill of rights ... serves to secure the minority against the usurpa-tion and tyranny of the majority .... [E]xperience ... has proved the prevalence of a disposition to use power wantonly. It is therefore as necessary to defend an individual against the majority in a republick as against the king in a monarchy.") Winthrop, the Letters of Agrippa, XVIII (1788), in Essays on The Constitution of the United States 115, 117 (P. Forded. 1892 & photo. reprint 1970), quoted in Introduction, in The Antifederal-ists xciii (Cecelia M. Kenyon ed., Bobbs-Merrill, 1966). 30. See Frank H. Easterbrook, Bills of Rights and Regression to the Mean, 15 Harv. J. Law & Pub. Pol'y 71, 72-73 (1992). 6 CONSTITUTIONAL COMMENTARY [Vol. 11:1 the great mass of the Court's jurisprudence.3t But this is also true of many decisions of the House of Representatives, arguably (at least by design) the most majoritarian of the branches. As just one example, it has been widely reported that a high percent-age of the public favors some sort of federal law controlling handguns. Such legislation never gets out of committee.3z Recent developments, such as the continued salience of the abortion issue, and the nominations of Robert Bork and Clar-ence Thomas,33 may well raise public consciousness of the activi-ties of the Court as many interest groups appear to seek to capture it for their own purposes. Ironically, while we think the data available is inconclusive, it might well be that the public in the future will demand an even more majoritarian Court, per-haps to our deep regret.34 31. As Friedman points out, some of his discussion is akin to a dialogic vision of the Court's statutory interpretation jurisprudence and the response of Congress. Friedman, 91 Mich. L. Rev. at 581 n.16 (cited in note 2). In that regard, it is worth noting that many congressional overrulings of statutory cases are driven by interest groups. Michael E. Solimine and James L. Walker, The Next Word: Congressional Response to Supreme Court Statutory Decisions, 65 Temp. L. Rev. 425, 449 (1992). 32. See Felicity Barringer, Majority in Poll Back Ban on Handguns, N.Y. Times, June 4, 1993, at A14. See generally Benjamin I. Page and Robert Y. Shapiro, Effects of Public Opinion on Policy, 77 Am. Pol. Sci. Rev. 175 (1983). 33. See L. Marvin Overby, et al., Courting Constituents? An Analysis of the Senate Confirmation Vote on Justice Clarence Thomas, 86 Am. Pol. Sci. Rev. 997 (1992); Kath-leen Frankovic and Joyce Gelb, Public Opinion and the Thomas Nomination, 25 PS 481 (1992). 34. Cf. Caldeira & Gibson, 36 Am. J. Pol. Sci. at 659 (cited in note 17) ("To the extent that the Court becomes politicized or perceived as such, it risks cutting itself off from its natural reservoir of goodwill and may become reliant for basic institutional sup-port on those who profit from its policies"). 

The Supreme Courte, Judicial Review, and the Public: Leadership Versus Dialogue

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The Supreme Courte, Judicial Review, and the Public: Leadership Versus Dialogue

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