The authors explore whether the federal courts act as countermajoritarian institutions by investigating the influence of public mood on decision making in the U.S. Courts of Appeals from 1961 to 2002. The results indicate that public opinion affects courts of appeals decision making indirectly through judicial replacements and institutional constrains from Congress, but the authors fail to uncover evidence that courts of appeals judges respond directly to changes in public opinion. They conclude that, absent membership turnover in the circuit or in Congress, the courts of appeals are not responsive to the will of the public.
judicial decision making, countermajoritarian, democratic, institutional visibility, public mood
Federal judges occupy a peculiar position in the American political system. Like members of Congress and the president, they have substantial policy-making powers. However, unlike their legislative and executive counterparts, they are not subject to popular will through elections. The electoral independence of the federal courts, coupled with their ability to make public policy (inclusive of the use of judicial review), has long fanned the flames of the debate regarding the proper role of the federal judiciary in the American polity. Scholars are acutely aware of the tension between judges' roles as policy makers and the actuality that federal judges are unelected, leading them to question whether the federal courts operate as countermajoritarian institutions or follow the mood of the public (e.g., Bickel 1962; Dahl 1957; Flemming and Wood 1997; Friedman 2009; Giles, Blackstone, and Vining 2008; Marshall 2008; McGuire and Stimson 2004; Mishler and Sheehan 1993; Norpoth and Segal 1994).
Indeed, the fear that a relatively small number of unelected judges can-and do-substitute their own will for that of duly elected public officials has motivated some to advocate for changes in federal judicial selection, ranging from setting term limits for federal judges (e.g., Calabresi and Lindgren 2006) to calling for their direct election (e.g., Clark 1903). While there are significant normative concerns stemming from the role of federal judges as unelected policy makers (e.g., Comiskey 2009; Friedman 2009), our understanding of the countermajoritarian nature of the federal courts can also be furthered through the empirical analysis of the relationship between public opinion and judicial decision making.1 Simply put, if federal judges are responsive to changes in public opinion, this might mitigate the significance of the fact that these actors are unelected (e.g., Comiskey 2009; Marshall 2008). The purpose of this research is to contribute to the debate regarding the undemocratic nature of the federal courts by exploring whether public opinion shapes decision making on the U.S. Courts of Appeals.
An examination of the relationship between public opinion and the decisions courts of appeals judges make is significant for a number of reasons. First, this research contributes to our understanding of the countermajoritarian nature of the federal courts. Although there is a substantial literature devoted to this paradigm, it almost exclusively focuses on the role of the U.S. Supreme Court (but see, e.g., Cook 1977; Giles and Walker 1975; Kritzer 1979; Manning and Carp 2005; Manning, Kuersten, and Carp 2001; Massie 2002; Peltason 1971). While the U.S. Supreme Court is a tremendously consequential venue, the almost exclusive focus on this institution threatens the generalizability of our understanding of the possible influence of public opinion on judicial decision making. Second, this research is important in that it furthers our understanding of decision making on the courts of appeals. Though the study of these courts has flourished recently (e.g., Benesh 2002; Hettinger, Lindquist, and Martinek 2006; Klein 2002; Songer, Sheehan, and Haire 2000), there are still a host of questions regarding these bodies that demand attention, including these courts' responsiveness to public opinion (Benesh 2002, 141n63). …