American Public Opinion and the Rehnquist Court

By Marshall, Thomas R. | Judicature, November/December 2005 | Go to article overview

American Public Opinion and the Rehnquist Court

Marshall, Thomas R., Judicature

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.)

Explaining representation

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. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Cite this article

Cited article

Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

Note: primary sources have slightly different requirements for citation. Please see these guidelines for more information.

Cited article

American Public Opinion and the Rehnquist Court


Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25,

    New feature

    It is estimated that 1 in 10 people have dyslexia, and in an effort to make Questia easier to use for those people, we have added a new choice of font to the Reader. That font is called OpenDyslexic, and has been designed to help with some of the symptoms of dyslexia. For more information on this font, please visit

    To use OpenDyslexic, choose it from the Typeface list in Font settings.

    OK, got it!

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Author Advanced search


    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.