Are Court Decisions Consistent with Public Preferences?
Kritzer, Herbert M., Judicature
Are Court decisions consistent with public preferences? by Herbert M. Kritzer
Public Opinion and the Rehnquist Court, by Thomas R. Marshall. State University of New York Press. 2008. xii+269 pages. $85.00.
In 1989 Thomas Marshall published Public Opinion and the Supreme Court. In that book, Professor Marshall mined the archive of public opinion questions, going back to the 1930s, that asked about issues that had come before the Supreme Court of the United States as well as questions assessing how the public viewed the Court. In Public Opinion and the Rehnquist Court, Professor Marshall reports parallel analyses for the era of the Rehnquist Court. While there are some specific exceptions, the thrust of the analyses reported is that the relationship between public opinion and the Rehnquist Court is little changed from what was found for the Hughes through Burger courts. While most of Public Opinion and the Rehnquist Court is a replication of the earlier work, there are some additional aspects to the analyses it reports.
In his 1989 book Professor Marshall identified what he labeled 12 "linkage" models "between mass public opinion and Supreme Court decision making" (pp. 14-25): state of public opinion, socialization, federal policy process, state/local policy process, appointment process, judicial rules, length of tenure, realignment, short-term manipulation, long-term manipulation, interest groups, and test of time. In Public Opinion and the Rehnquist Court, he expands the number of models to 15, including all of his earlier models and adding political parties and ideology, symbolic representation, and business-as-normal. By "linkage model," Marshall primarily refers to what intervening variables between public opinion and decision making condition whether decisions and votes align with public opinion.
As noted above, Professor Marshall draws on the large archive of public opinion questions to locate questions that deal with issues that came before the Court. In his earlier book, covering approximately 50 years, he located 146 "matches" where a public opinion poll had asked a policy question around the time that the Court decided a case dealing with the same issue. For the 20 years of the Rehnquist Court he found 111 matches, clearly a much higher rate, about 51/4 per year; however, compared to the immediately preceding Burger Court, the rate was not all that different, about 41/4 per year, according to his earlier book (p. 74). However, one should also note that the Burger Court decided more cases in an average year than did the Rehnquist Court, suggesting greater attention by pollsters over the two decades of the Rehnquist Court.
The central question
The central question in Professor Marshall's analysis is whether Supreme Court decisions, and individual justices' votes, are consistent with public preferences. In his first book, he found that in 63 percent of the situations where he could match public opinion polls to Court decisions, the decision was consistent with public preferences. For the Rehnquist era, the results are essentially identical: 64 percent of the Court's decisions accord with the public's preference (this is his figure omitting cases where the public opinion polls were closely divided or inconsistent). While Professor Marshall interprets these patterns as indicating that the Court tends to rule in a way consistent with public preferences, another way to state his results is that in about a third of its cases, the Supreme Court reaches a decision that is in opposition to the thrust of the public's preference. The intriguing question is whether a third is a "lot" or a "litde," the old question of whether the glass is two-thirds full or one-third gone?
Professor Marshall reports some variations in when decision are consistent or inconsistent with public preferences: more consistent in times of crisis, when less than five percent of the public is undecided on an issue, and when public opinion is consistent with the law. …