The Supreme Court, Judicial Review, and the Public: Leadership versus Dialogue

Article excerpt

[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(1)

In his article, Dialogue and Judicial Review,(2) Barry Friedman 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 theories supporting the exercise of judicial review are seen, by some, as having to accommodate that fact. Many writers make this accommodation by showing that the other branches of government are not majoritarian.(3) Friedman takes a different tack. According 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 respond to, and in turn influences, public opinion.

Thus, as Friedman notes, the Court sometimes makes reference to legislative enactments among the various states when rendering a decision;(4) "[p]ublic opinion polls establish that, contrary to common thought, judicial decisions often gamer substantial public support";(5) and polls show that the public, in general, holds the Court in high regard.6 Moreover, the public can indirectly influence judicial decisions through the appointment process, since Presidents usually nominate Justices with compatible ideologies.(7) In short, "[t]he Court facilitates and shapes the constitutional debate"(8) 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 constitutional law is important because it focuses on the supposed empirical 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 complex and nuanced than he indicates, and this fact calls into question the breadth of some of the conclusions he reaches.(9)

First, the polling data with respect to public support of particular decisions is, at best, equivocal. As Friedman himself notes, with some cases, such as the flagburning decisions of 1989 and 1990,(10) solid majorities of the public seem to be opposed to the results.(11) 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 nationwide polls on those cases. Of that number, about 55% were consistent with the will of the majority as revealed by the poll.(12) This percentage is hardly awe-inspiring, and may, in fact, just as easily 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.(13) 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.(14) 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.(15) 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 engendered significant public opposition. …