Academic journal article
By Marshall, Thomas R.
Judicature , Vol. 89, No. 3
The Rehnquist Court leaves behind important legacies such as the decline in unanimity and the rise of concurrences; the sharply reduced number of full, written decisions; the growing role of interest groups; a mixed record of conservative-versus-liberal decisions; and the ascendancy of career, federal appeals judges to the Court. Less clear is how accurately the Rehnquist Court's decisions represented American public opinion.
Whether federal court decisions should reflect American public opinion at all is a long-standing question dating back to the late 1700s. How well the federal courts actually do represent public opinion is a question of more recent vintage. Only since the advent of modern polling during the 1930s can federal court rulings actually be compared to nationwide public opinion poll questions. During the Rehnquist Court era American pollsters asked more than 2000 poll questions tapping public knowledge of or attitudes toward Supreme Court nominees, the justices themselves, knowledge of Court procedures and decisions, or the Court's decisions. Matching public opinion poll questions and Supreme Court decisions yields a set of 109 Rehnquist Court decisions that can be classified as either consistent or inconsistent with American public opinion.
Consider, for example, -PGA Tour, Inc., v. casey Martin (2001). A 78-to-17 percent Gallup Poll majority agreed that "professional golfers with serious physical disabilities should be allowed to use golf carts when playing in professional golf tournaments." A 7-2 Court majority so ruled and PGA Tour v. Martin is counted as "consistent" with American public opinion.
By contrast, a 67-to-27 percent ABC Poll majority said that "at public school events such as sporting events ... students should be permitted to use the public address system to lead the audience in religious prayers." Yet a 6to-3 Court majority in Santa Fe Independent School District v. Doe (2000) held that such prayers were unconstitutional, and the Santa Fe ruling is counted as "inconsistent" with public opinion. A small number of rulings were counted as "unclear" because of evenly divided or inconsistent polls and are excluded from the analysis below; two wellknown examples include Bush v. Gore (2000) and Zelman v. Simmons-Harris (2002).
Overall, the Rehnquist Court's record of representing American public opinion is strikingly similar to that of five earlier Courts since the mid-1930s. Setting aside the handful of closely-divided or inconsistent polls, some 63 percent of the Rehnquist Court's decisions were consistent with poll majorities, and the remaining 37 percent were inconsistent with the polls. That compares to nearly identical figures of 62 percent consistent and 38 percent inconsistent for the Hughes, Stone, Vinson, Warren, and Burger Courts together. Indeed, since the 1950s the Supreme Court produced nearly identical figures: 61 percent consistent for the Warren Court, 62 percent for the Burger Court, and 63 percent for thé Rehnquist Court.
The Rehnquist Court not only produced decisions that agreed with American public opinion about three-fifths of the time, it also did so consistently over time. Figure One tracks the three-year moving averages of consistent decisions (in percentages) from the Rehnquist and Burger Courts. Like the earlier Burger Court, the Rehnquist Court each term typically produced decisions at least a majority of which agreed with poll majorities. While the Rehnquist Court's three-year averages seldom exceeded 70 percent consistent, it never dropped below the 50:50 mark either. In short, the Rehnquist Court, like other Courts since the mid-1930s, was consistently majoritarian-in that a majority of its decisions usually agreed with poll majorities. The image of the modern Court as a countermajoritarian political institution-one that regularly disagrees with public opinion-finds no support here. (see Figure 1.)
That the Rehnquist Court's decisions agreed with the polls three-fifths to two-thirds of the time is best explained by three patterns: first, by the issues involved in a case; second, by the Court's norms and practices, and third, by the justices themselves. …