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Public Opinion and The Rehnquist Court - Marshall, Thomas R. (Author)
Public Opinion and The Rehnquist Court - Marshall, Thomas R. (Author)
Thomas R. Marshall
Public Opinion and the Rehnquist Court
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Public Opinion and the
Rehnquist Court
Thomas R. Marshall
S t a t e U n i v e r s i t y o f N e w Yo r k P r e s s
Cover photo credit, istockphoto/Jim Pruitt
Published by
State University of New York Press, Albany
KF8748.M288 2008
347.7326dc22
2007024544
10 9 8 7 6 5 4 3 2 1
Contents
Preface vii
List of Illustrations ix
List of Tables xi
Chapter One: Public Opinion and Supreme Court Policy-Making 1
A Representative Court? 1
How Pollsters View the Court 3
How the Justices View Public Opinion 4
Judicial Theories of Public Opinion 8
Linking Public Opinion and the Rehnquist Court 14
Conclusion 21
Chapter Two: Public Opinion and the Rehnquist Court 23
Studying Representation 24
Data Results 35
The State of Public Opinion Model 38
The Federal Policy Model 40
The State/Local Policy Model 41
Alternative Linkages 42
Conclusion 49
v
vi Contents
Notes 181
Bibliography 215
Index 259
Preface
P ublic Opinion and the Rehnquist Court asks two simple questions.
First, did the Rehnquist Courts decisions typically reflect American
public opinion? Second, to the extent its decisions did, why? To pre-
view this books findings, between three-fifths and two-thirds of the
Rehnquist Courts decisions agreed with American public opinion.
At least since the New Deal era, most Supreme Court decisions
have represented American public opinion, well-known exceptions
notwithstanding. Some justices agree with American public opinion
much more often than do others. The Courts pattern of representation
is sensitive to ideological shifts on the Court, caseload, the justices the-
ories of judicial decision-making, the justices backgrounds and roles,
and the attentiveness of American public opinion. The Rehnquist Court
enjoyed relatively high popularity, at least compared to the other polit-
ical branches. Yet it could not influence American public opinion
through its decisions.
Sixteen years ago, during the last Burger Court term, I wrote an
account of Supreme Court decision-making and American public opin-
ion, Public Opinion and the Supreme Court. That book relied heavily
on 146 matches between public opinion poll questions with Supreme
Court decisions since the mid-1930s. Since that time, judicial scholars
have made great advances in studying judicial politics and representa-
tion. I gratefully acknowledge the many authors work cited in this
book, as well as the polling data used herein, without which Public
Opinion and the Rehnquist Court would not have been possible. I hope
this book both updates and expands on my previous work. For their
comments, I thank Charles Hadley and Steve Wasby. For assistance in
producing this manuscript, I thank Erika Contreras, Lydia Villegos,
Shelby Henderson, Kenneth Zuercher, and Leah Cook. This book is for
Ruth, Aram, Erica, Deacon, Sara, Jack, Claire, Mark, and Bertie.
vii
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List of Illustrations
ix
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List of Tables
xi
xii List of Tables
A REPRESENTATIVE COURT?
1
2 Public Opinion and the Rehnquist Court
Figure 1.1
Number of poll questions, per year, during the Rehnquist Court
Table 1.1
Frequency of Direct Mentions of Public Opinion in
Supreme Court Decisions, by Era
Average Annual Number of Direct Mentions
17921859 .3
18601933 .5
19341959 2.4
19601986 3.1
19862005 6.5
Table 1.2
Evidence of Public Opinion Used in Supreme Court Opinions, by Era
1792-1859 1860-1933 1934-1986 1986-2005
Direct evidence: 9% 16%
specific poll results (8%) (15%)
poll results mentioned, but
no specific polls cited (1%) (1%)
Indirect evidence: 73% 81% 39% 28%
Elections, referendums (2%) (2%)
Community actions, word-of-
mouth, news stories, editorials,
mob actions) (9%) (14%) (4%) (2%)
Elite or specialized opinions (3%) (14%) (2%) (2%)
General knowledge (32%) (48%) (17%) (15%)
Statutes, lower court decisions (29%) (5%) (14%) (7%)
Normative, theoretical, or
abstract (non-empirical)
mentions only 44% 19% 70% 70%
Note: Percentages sum down and may exceed 100%, by column, due to multi-
ple sources indicated in an opinion. Percentages in parentheses indicate subcat-
egories.
ion.17 The Rehnquist Court did not originate any new or novel theories
of the role of public opinion. However, as Table 1.5 indicates, it relied
on the theory of evolving or contemporary public opinion much more
often than did earlier Courts, and it almost ceased to use the judicial
restraint theory of public opinion. Overall, nearly four-fifths of the
Rehnquist Courts direct mentions of public opinion reflected a gener-
ally positive view of public opinion. Only a fifth of its direct mentions
reflected the negative view that public opinion was a threat to rights.
That the justices themselves apparently hold a generally positive view
of American public opinion may, in part, explain why most Supreme
Court decisions agree with public opinion.
Table 1.3
Type of Case Involved in Direct Mentions of Public Opinion, by Era
1792-1859 1860-1933 1934-1986 1986-2005
Crime, trials, prisoners,
courtrooms 19% 24% 35% 41%
Press, media 6% 21% 2%
Dissent, speech, religion 18% 11%
Labor, strikes, bargaining 6% 14% 2%
Elections, campaign,
campaign finance 6% 8% 11%
Business regulations 48% 50% 8% 16%
Foreign, military policy 33% 9% 5% 1%
Civil rights, race 5% 12% 4% 9%
Privacy, sex, obscenity 3% 11%
All others 3% 6% 6%
Note: Percentages sum down and may exceed 100%, per column, because mul-
tiple topics are involved in a single case.
Table 1.4
Direct Mentions of Public Opinion, by Type of Opinion and Era
1792-1859 1860-1933 1934-1986 1986-2005
Direct mention of public
opinion in
Majority opinion 76% 79% 52% 44%
Concurring opinion 5% 0% 13% 14%
Dissenting opinion 19% 21% 35% 42%
Note: Percentages sum down, by column, to 100%.
quite skeptical that polls should carry much weight in judicial decision-
making. While the Rehnquist Court was as sensitive to public opinion
as were earlier Courts since the mid-1930s, it was clearly not poll
driven.18 The next section briefly reviews how the Rehnquist Courts
justices applied each of these four theories of public opinion.
Table 1.5
Theories of Public Opinion, by Frequency and Era
1792-1859 1860-1933 1934-1986 1986-2005
Speech or action influences
or informs public opinion, and
merits protection 6% 41% 34%
In press cases (6%) (17%) (3%)
In election, religion, speech
and dissent cases (16%) (10%)
all other cases (8%) (21%)
Public opinion alone is an
adequate check on policy 24% 50% 21% 7%
For government actions (14%) (44%) (11%) (6%)
For nongovernment groups (10%) (6%) (10%) (1%)
Law and policy should reflect
contemporary or evolving
public opinion 43% 29% 21% 64%
Public opinion threatens rights,
should be restrained 29% 18% 19% 20%
In fair trial rights cases (6%) (8%) (11%)
In speech and dissent cases (3%) (8%) (2%)
In economic rights (29%) (9%) (3%) (1%)
All other cases - (7%)
All other usages 5% 3% 6% 14%
Government influences public
opinion (3%) (2%)
Miscellaneous uses (5%) (3%) (3%) (11%)
Note: Percentages sum down and may exceed 100%, by column, due to multi-
ple usages in some opinions.
Judicial Restraint
A second theory is that public opinion alone is an adequate check on
abuses by government, and that the courts need not become involved in
a dispute. This theory became popular during the early 1900s when
several judges (most notably, Justices Holmes and Stone) urged the
Court to defer to Congress or state legislatures in economic policy-
making. Justice Frankfurter often argued that the Court should defer to
public opinion and elected officials in criminal, dissent, and redistrict-
ing cases.
Decisions in favor of judicial restraint were quite common during
the Rehnquist Court, but few such decisions were based on public
opinion. This theory apparently fell out of favor with the justices
12 Public Opinion and the Rehnquist Court
that Brown v. Board of Education (1954, 1955) and West Coast Hotel
v. Parrish (1937) correctly overturned earlier rulings, partly because
American public opinion, American social life, and Supreme Court
decisions had greatly changed since the earlier decisions in Plessy v.
Ferguson (1896) or Lochner v. New York (1905). OConnor argued
that overturning Roe v. Wades (1973) view that abortion was a funda-
mental right would call into question public confidence in the Supreme
Court: The Courts power lies . . . in its legitimacy, a product of sub-
stance and perception that shows itself in the peoples acceptance of the
Judiciary as fit to determine what the Nations law means and to
declare what it demands, at 865. In Justice OConnors view, the
Court could protect its legitimacy by upholding a well-known, recent
precedent that still enjoyed widespread legal acceptance, especially
when public opinion was still sharply divided over the decision.35
Predictably, other justices vigorously criticized this argument.
Justice Scalia, in dissent, argued that there was no fundamental right to
an abortion, and that Roe v. Wade (1973) was wrongly decided; he
also argued that later decisions sharply limited Roe. Justice Scalia then
criticized OConnors argument that the Court should resist public
opinion criticism of landmark rulings: I am appalled by the Courts
suggestion that the decision whether to stand by an erroneous constitu-
tional decision must be strongly influenced . . . by the substantial and
continuing public opposition the decision has generated . . . (W)hether it
would subvert the Courts legitimacy or not, the notion that we would
decide a case differently from the way we otherwise would have in
order to show that we can stand firm against public disapproval is
frightening . . . (T)he notion that the Court must adhere to a decision for
as long as the decision faces great opposition and the Court is under
fire acquires a character of almost czarist arrogance, at 998999.
Several other decisions argued that public perceptions should
influence Supreme Court rulings. Most of these cases involved criminal
trials, and suggested that an appeals court should correct a lower
courts plain errors if there was evidence of actual innocence, or if
the error seriously affects the fairness, integrity, or public reputation
of judicial proceedings.36 This argument about the public reputa-
tion of the courts reappeared in later criminal cases.37 The Rehnquist
Court also considered the importance of public perceptions in other
areas, arguing that public opinion should be given serious weight in
campaign finance regulations,38 gambling regulations,39 regulations
concerning payments to or paid appearances by public employees,40
financial and banking regulations,41 and government-funded legal ser-
vices to the poor.42
14 Public Opinion and the Rehnquist Court
that groups policy attitudes than do the remaining justices. Over half
of all Supreme Court justices now symbolically represent some group,
such as women, blacks, Catholics, or Jews. Chapter six examines
whether symbolic nominees, once confirmed, also represent their
groups policy views through their votes.
ers all fifteen models and offers an empirical model between American
public opinion and the Rehnquist Court.
CONCLUSION
23
24 Public Opinion and the Rehnquist Court
run for public office. Typically, the justices now remain on the Court
until they die or retire at an advanced age, often in ill health.6 Because
they usually remain so long on the Court, few justices were actually
appointed by the current president.
The justices might also ignore contemporary public opinion for
another reason. Several well-known theories of how the Court should
make its decisions bear no obvious relationship to contemporary public
opinion, or else encourage the justices to disregard public opinion. For
example, the theory of original intent encourages the justices to look
back at the practices of much earlier times. Stare decisis encourages jus-
tices to look back at the Supreme Courts own earlier decisions. The
preferred position doctrine encourages justices to value minority
rights over majority preferences. Historically, many American politi-
cians saw the Supreme Court as a barrier against majority public opin-
ion. As Alexander Hamilton wrote in Federalist 78, the Supreme Court
would be an excellent barrier against the legislature and public opin-
ion, and an essential safeguard against the effects of occasional ill
humors in the society. Very few decisions actually cite polls or use
agreement with the polls as a justification for decision-making.
Some well-known Supreme Court decisions are clearly at odds with
American public opinion, as measured in nationwide polls. In these
instances the Court may hand down an unpopular decision, and then
continue to uphold the precedent for years. Two well-known examples
are the school prayer and the flag-burning decisions. To date, public
opinion poll majorities still oppose the Engle v. Vitale (1962) and
Abington School District v. Schempp (1963) school prayer and bible
reading decisions.7 In the flag-burning cases, Texas v. Johnson (1989)
and U.S. v. Eichman (1990), the Rehnquist Court struck down both a
state law and a federal law outlawing flag burning as a political protest
despite vocal, overwhelming, and consistent public opinion opposition.8
All this notwithstanding, it may seem surprising that the Supreme
Court is typically responsive to public opinion. Several studies,
reviewed below, indicate that the Supreme Courts decision-making
usually follows liberal-versus-conservative poll trends, and agrees with
specific public opinion poll majorities. Indeed, some justices, most
notably Chief Justice Rehnquist (1986), argue that justices often sense
and share prevailing public opinion.
STUDYING REPRESENTATION
All these arguments suggest that there is little reason to expect that the
justices will consider public opinion when they decide cases. However,
Public Opinion and the Rehnquist Court 25
Data Sources
Unfortunately, no published index of scientific, nationwide polls that
match Supreme Court decisions exists. The most useful source of polling
information is the Roper Archive, now available online, by searching
under the key word Supreme Court. Of all the questions using this
phrase during the Rehnquist Court, many ask respondents their views
on a specific controversy currently being considered or else previously
decided by the Court.17 However, many poll questions raising issues in
cases before the Court do not actually use the phrase Supreme Court.
These poll questions were identified by searching for key words from
Court decisions in the online Roper Archive, or by checking published
polls, such as the Gallup Poll, The Polls section of Public Opinion
Quarterly, and various newspaper or magazine polls.
For each poll-to-decision match considered here, the poll responses
were used to classify the Supreme Court decision as consistent,
inconsistent, or as unclear with public opinion, and to compute
the poll margin, described further below.18 Most poll questions
report only three responses (e.g., favor, oppose, and no opinion), as is
typical in modern polling. A few poll questions that report more
responses (e.g., strongly favor, somewhat favor, undecided, somewhat
oppose, strongly oppose) were collapsed to indicate the percentage of
respondents who favored, versus those who opposed the Court deci-
sion, or who reported no response. Very few poll questions used filter
questions. The percentage of respondents who responded no opinion,
or who gave no response, was usually small, averaging about 5%
across these poll-to-decision matches.
The most frequent source of poll matches during the Rehnquist
Court era was the Gallup Poll (54 matches); followed by Princeton
30 Public Opinion and the Rehnquist Court
Coding Rules
These 111 poll-to-decision matches were coded to follow the same
rules from an earlier study (Marshall 1989: 7577). Briefly, the coding
rules are:
DATA RESULTS
Table 2.1 breaks down the 111 poll-to-decision matches by the type of
issue presented. Although not a random sample of the Rehnquist
Courts decisions, they are a diverse sampling of topics. Pollsters most
often wrote questions on criminal rights, and privacy, morality, or
abortion decisions. The mix of poll matches also greatly changed from
earlier Courts, in large part reflecting changes in the Courts docket
(Pacelle 1991). Labor and workplace disputes or national security deci-
sions were often matched with poll questions during earlier Courts, but
now rarely elicit a matching poll question (Marshall 1989: 73). By
comparison, more health and family law decisions cases can be
matched than in earlier periods.
Overall Results
About three-fifths of the Rehnquist Court decisions considered here
were consistent with American public opinion. Depending on whether
cert denial decisions are included or excluded, some 61 or 60%, respec-
tively, of Rehnquist Court decisions were consistent with the polls
when a clear poll majority or plurality existed. If the unclear cases
(where public opinion polls were closely divided or inconsistent) are
excluded, then 64% of Rehnquist Court decisions were consistent with
poll majorities or pluralities.
This level of agreement with the polls is strikingly similar to that of
earlier Courts since the 1930s. Earlier Courts were consistent with
American public opinion in about three-fifths of their decisions. So was
the Rehnquist Court. Indeed, excluding cases of unclear polls, the
records of the Warren, Burger, and Rehnquist Courts are virtually iden-
ticalranging only from 61 to 64% consistent (Marshall 1989:
7879). Apparently, the modern Supreme Court reached a very stable
plateau in representing American public opinion over the last half-cen-
tury. Roughly three of five decisions agree with the polls, while two of
five do not.
The Supreme Courts over-time stability in representation is also
apparent in yet another way. The Rehnquist Court was more often con-
sistent with public opinion in its cert denial decisions (77% consistent)
36 Public Opinion and the Rehnquist Court
Table 2.1
Number of Poll Matches, by Issue, Including or Excluding Denials of Certiorari
Including Cert Excluding Cert
Denials Denials
Number Percentage Number Percentage
of Cases Matches of Cases Matches
Labor unions, strikes 3 3% 2 2%
Criminal rights, courts, police 29 26% 25 28%
Education, schools 16 14% 10 11%
National security, foreign policy,
communism, immigration 6 4% 3 3%
Privacy, morality, abortion 23 21% 18 20%
Civil rights, race, integration 8 7% 6 7%
Business regulation, taxes 7 6% 6 7%
Elections, campaign finance 9 8% 8 9%
Intergovernmental relations, federalism 10 9% 8 9%
Free speech, dissent, obscenity, media 7 6% 7 8%
Social welfare, poverty 1 1% 0 0%
Transportation, commerce 4 4% 4 5%
Religion 12 11% 9 10%
Health, hospitals, HMOs 16 14% 10 11%
Families, family law 10 9% 6 7%
Women and gender claims 4 4% 4 5%
Note: Numbers and percentages sum down, by column, in excess of 111 or 88
cases (or 100%) because several decisions are coded in two or more issue cate-
gories.
than in its full, written opinions (60% consistent). Earlier Courts from
the mid-1930s to the mid-1980s were also more often consistent in cert
denial cases (70% consistent) than in full, written opinions (62%)in
each comparison excluding unclear polls.
Table 2.2
Supreme Court Agreement with Public Opinion, by Court,
Including All Poll Matches
Hughes Stone Vinson Warren Burger Rehnquist
% consistent 65% 54% 68% 52% 53% 61%
% inconsistent 24% 46% 32% 33% 33% 35%
% unclear 12% 14% 15% 4%
Percent of cases 101% 100% 100% 99% 101% 100%
Number of cases (17) (13) (19) (21) (76) (111)
Public Opinion and the Rehnquist Court 37
Table 2.3
Supreme Court Agreement with Public Opinion, by Court,
Excluding Instances of Unclear Polls
Hughes Stone Vinson Warren Burger Rehnquist
% consistent 73% 54% 68% 61% 62% 64%
% inconsistent 27% 46% 32% 39% 38% 36%
Percentage of cases 100% 100% 100% 100% 100% 100%
Number of cases (15) (13) (19) (18) (65) (107)
The state of public opinion model assumes that Supreme Court deci-
sions will be most consistent with the polls under three conditions: first,
when public opinion itself is very one-sided; second, when public atten-
tion is closely focused on the issue in the case, such as during crisis
times or on a high-profile controversy; or third, when nearly all
Americans hold opinions on a dispute. Under these circumstances the
justices can more easily sense and share prevailing public opinion
(Rehnquist 1986). From the mid-1930s to the mid-1980s, Supreme
Court decisions significantly more often agreed with the polls when
public attention was closely focused upon the decisions key issue
(Marshall 1989).
Crisis-Times Cases
In a second version, the state of public opinion model predicts that the
Court will more often represent public opinion when public attention is
closely focused on an issue. The crisis-times thesis dates back to the
1940s and 1950s, when the Court seldom supported controversial or
unpopular fundamental freedoms claims during World War II or the
subsequent anticommunist Red Scare period (Becker 1970: 229).36
Admittedly, few Rehnquist Court decisions rose to the high level of
public visibility for the crisis-times cases during the 1940s and 1950s.
However, several controversies were closely related to the top national
concern, as measured by Gallup Polls question, What do you think is
the most important problem facing this country today? Table 2.4
reports figures by whether the single, top national concern was
involved, or not.37
Just as for earlier Courts, the Rehnquist Courts decisions were
more often consistent with public opinion during crisis-times cases. The
Rehnquist Court was consistent in 74% of its crisis-times decisions,
versus only 61% of decisions when the issue was not the top national
concern. This pattern is also evident from the mid-1930s to the mid-
1980s, when earlier Court decisions were consistent with the polls for
76% of crisis-times cases, but for only 59% of other cases.
In an alternative test, the Court might be more consistent with
public opinion when the controversy is an especially important one,
and likely to garner attention from the public or the legal commu-
nity. Here, the decisions were split according to whether Court
scholars (Biskupic and Witt 1997, updated) consider the case unusu-
ally important or not. No strong findings resulted, with 67% of less
important, versus 60% of more important decisions being consistent
with the polls.
Issue Clarity
A third test breaks down these 111 rulings according to how many
respondents reported no opinion to the poll question. When very few
respondents (5% or fewer) indicated no opinion on an issue, the jus-
tices might sense that the issue is one on which public opinion is atten-
40 Public Opinion and the Rehnquist Court
tive. The Rehnquist Courts rulings were more consistent with public
opinion when nearly all poll respondents give an opinion70% consis-
tent, versus only 49% consistent when over 5% of respondents answer
no opinion to a poll question a pattern similar to earlier Courts
since the mid-1930s.
Overall, there was some support for the state of public opinion
model. Most of the results in Table 2.4 were in the expected direction,
although only when nearly all Americans held opinions on an issue
were the Rehnquist Courts decisions significantly more often in agree-
ment with the polls. Only the test for one-sided or landslide poll
margins failed to muster any supportive evidence.
The federal policy model makes three key assumptions. First, most fed-
eral laws and policies agree with American public opinion. Second, the
Supreme Court usually upholds a challenged federal law or policy. As a
result, the Court is very consistent with American public opinion in
these disputes. Third, extending this argument a bit further, challenged
federal laws and policies are a major part (roughly a third) of the
Courts docket. Thus, the federal policy model helps explain why the
Court so often reflects public opinion.
Earlier research (Marshall 1989: 8388) indicated that this linkage
model was very important. Most (72%) of the federal laws and policies
that the Supreme Court reviewed were consistent with nationwide polls
between the mid-1930s and the mid-1980s. Further, earlier Courts
upheld 81% of those federal-level laws or policies that were consistent
with public opinion and even 63% of those that were not.
The Rehnquist Court was less deferential to federal laws and poli-
cies than were earlier Courts since the New Deal, however. Several
well-known Rehnquist Court rulings gave the federal governments
decisions less deference than earlier Courts might have done, including
the FDA v. Brown Williamson Tobacco Corp (2000), Reno v. ACLU
(1997), Printz v. U.S. (1997), Rasul v. Bush (2004) and Padilla v.
Rumsfield (2004) rulings counted here.38 As a result, the federal-level
linkage model may need to be reevaluated.
Tables 2.4 and 2.6 report how the Rehnquist Court and earlier
Courts treated challenged federal laws and policies, broken down by
whether or not the challenged federal laws themselves agreed with
public opinion. Challenged federal laws and policies were as often con-
sistent with nationwide polls during the Rehnquist Court as during ear-
Public Opinion and the Rehnquist Court 41
lier Courts73% were, versus 72% in earlier years (in both cases
excluding instances of unclear or evenly divided polls). However, the
Rehnquist Court less often deferred to consistent federal laws and poli-
ciessupporting the federal law (or policy) only 67% of the time when
the challenged law was consistent with the polls, versus 81% of the
time in earlier courts. When the federal law or policy was inconsistent
with nationwide polls, the Rehnquist Court upheld it 60% of the time,
versus 63% of the time for earlier courts. As a result, the Rehnquist
Court was only consistent with nationwide public opinion 59% of the
time when a federal law or policy was before itversus 69% of the
time for earlier courts since the mid-1930s.
In short, the federal policy model was not as good a linkage model
for the Rehnquist Court as it was for earlier Courts since the mid-
1930s. The Rehnquist Courts dwindling deference toward federal
policy-making should not be simply of interest to legal scholars and
attorneys. It also weakened the linkage between Supreme Court deci-
sion-making and American public opinion. Chapter three returns to
this issue.
The state/local policy model is quite different than the federal policy
model, and makes three key assumptions. First, the Supreme Court
upholds state/local laws or policies less often than it upholds federal
laws and policies. Second, state/local laws and policies themselves less
often agree with nationwide public opinion than do federal laws and
policies. Third, when a state/local law or policy disagrees with nation-
wide public opinion, the Supreme Court usually agrees with nationwide
public opinion. Extending this argument, disputes over state and local
laws and policies comprise the majority of the modern Courts docket.
From the mid-1930s through the mid-1980s, this model accu-
rately described Supreme Court decisions involving state or local laws
and policies. However, the Rehnquist Court gave more deference to
state/local policy-making than did earlier Courts since the 1930s.
Does this model still accurately describe the Courts relationship to
public opinion?
How does the Rehnquist Court compare to earlier Courts? First, the
Rehnquist Court usually upheld state/local laws and policies that agreed
with nationwide public opiniondoing so 71% of the time if the
state/local law or policy was consistent with nationwide polls, but uphold-
ing only 43% of inconsistent state laws and policies. By comparison, from
42 Public Opinion and the Rehnquist Court
ALTERNATIVE LINKAGES
Did the Rehnquist Court reflect public opinion in some other circum-
stances, rather than others? Table 2.4 reports several results, including
fundamental freedoms disputes, First Amendment claims, economic
claims, polling artifacts, the publics liberalconservative views, whether
the decision was a full written decision or not, and shorter Court eras.
Economic Cases
Economic cases, such as workplace, taxes, lawsuits, business regula-
tions, transportation, or commerce disputes, have long been a major
Table 2.4
Percentage of Consistent Decisions, by Explanatory Variables,
for the Rehnquist Court
Percentage Consistent Number of Cases
Overall results 64% (107)
By size of poll margin
Landslide margin (over 30%) 62% (76)
Smaller poll margin (29% or less) 68% (31)
By state of public opinion
Crisis-times cases 74% (19)
Non-crisis times cases 61% (88)
By importance of decision
Most important cases 60% (52)
Less important cases 69% (55)
By level of issue clarity*
Undecided is 5% or less 70% (76)
Undecided is over 5% 49% (31)
By level and context
Consistent federal law 67% (27)
Inconsistent federal law 40% (10)
Consistent state/local law 71% (52)
Inconsistent state/local law 57% (22)
By type of issue
Fundamental freedoms case 62% (77)
Non-fundamental freedoms case 67% (30)
First Amendment claims 57% (28)
Non-First Amendment claims 66% (79)
Economic cases 53% (17)
Non-economic cases 66% (90)
By timing of the poll*
Pre-decision poll 71% (65)
Post-decision poll 52% (42)
By ideology of public opinion*
Conservative public opinion 70% (59)
Liberal public opinion 55% (44)
No clear ideology 75% (4)
By type of decision*
Full, written opinion 60% (85)
Cert denials, others 77% (22)
By Court period
Pre-Justice Thomas 59% (41)
Post-Justice Thomas 67% (66)
Note: The maximum number of decisions in this table is 107; instances of
evenly-divided or inconsistent polls are excluded from this table. To compute
the percent of inconsistent decisions, subtract the percent of consistent deci-
sions from 100%.
* = stat. signif. at .05
Public Opinion and the Rehnquist Court 45
part of the Supreme Courts docket. In economic cases, the Courts deci-
sions were predicted to be more often consistent with public opinion
than in non-economic decisions, largely because of the modern Courts
greater deference to elected officials in economic disputes. However,
unlike earlier Courts, the Rehnquist Courts economic decisions less
often agreed with public opinion than non-economic decisions.
Polling Artifacts
Some accounts argue that the Supreme Court is highly regarded as an
institution and that its decisions at least modestly influence public
opinion.42 If this is true, then the Courts decisions should more often
agree with the polls if the poll was taken after, not before, the decision
was announced.
To test for this effect, these 111 decisions were divided into two
groups: those in which the matching poll was taken before, versus
after the decision was announced. No support appeared for this argu-
ment, as reported in Table 2.4. Nor was there any support in an ear-
lier study (Marshall 1989: 90). In fact, the Rehnquist Courts
decisions were more often consistent with public opinion when the
poll was taken before the decision was announced.43 As chapter seven
indicates, Supreme Court rulings do not have an endorsement
effect on public opinion.
Ideology
Many scholars (Friedelbaum 1994; Gottlieb 2000; Savage 1992;
Yarbrough 2000) describe the Rehnquist Court as a relatively conserv-
ative Court, at least compared to the Burger and Warren Courts.
Further, the justices have a great deal of freedom in deciding cases and
the justices votes usually reflect their own liberalconservative views
(Segal and Cover 1989; Segal and Spaeth 1993; Segal, Epstein,
Cameron, and Spaeth 1995). As a result, the justices ideological lean-
ings may be closely tied to how often the Court represents public opin-
ion. Here, the hypothesis is that the Rehnquist Courts decisions will
more often reflect public opinion when poll majorities themselves are
politically conservative, rather than when poll majorities are liberal.44
Considerable support exists for this hypothesis. When American
public opinion was politically conservative, the Rehnquist Courts
decisions agreed with the polls 70% of the time. When public opin-
ion was politically liberal, the Rehnquist Courts decisions agreed
with the polls only 55% of the time. Further, public opinion itself
was relatively conservative on cases that reached the Rehnquist
46 Public Opinion and the Rehnquist Court
Type of Decision
Sometimes the Supreme Court sets a case for oral argument and then
hands down a full, written opinion, but much more frequently, it
simply denies certiorari and declines to hear the case at all.45 When did
the Rehnquist Court more often agree with public opinion?
The Rehnquist Courts decisions were divided in two groups: its
full, written opinions, versus its denials of certiorari, denials of an appli-
cation for a stay, and denials of habeas corpus. Just as in an earlier
study (Marshall 1989: 7879), the Rehnquist Courts full, written deci-
sions were less often consistent with public opinion. Sixty percent of the
Courts full, written opinions agreed with public opinion, while 77% of
its cert denial (or denial of a stay, or denial of habeas corpus) decisions
did. Chapter three reconsiders this finding and the implications of the
Rehnquist Courts dwindling number of full, written opinions.
Table 2.5
Percentage of Consistent Decisions, by Issue
Percentage Consistent Number of Cases
Type of issue
Criminal rights, courts, police 76% (29)
Education, schools 64% (14)
National security, foreign policy,
communism, immigration 50% (6)
Privacy, morality, abortion 68% (22)
Race, integration 63% (8)
Business regulation, taxes 57% (7)
Elections, campaign finance 75% (8)
Intergovernmental relations,
federalism 60% (10)
Free speech, dissent, media,
obscenity 29% (7)
Religion 50% (10)
Health, hospitals, HMOs 56% (16)
Families, children, family law 66% (9)
Table 2.6
Percentage of Consistent Decisions for the Rehnquist Court and Earlier
Courts since the Mid-1930s
RehnquistCourt EarlierCourts Difference
Overall results 64% 63% +1%
By state of public opinion
Crisis-times cases 74% 76% -2%
Non-crisis times cases 61% 59% +2%
By level of issue clarity
Undecided is 5% or less 70% 79% -9%
Undecided is over 5% 49% 57% -8%
By size of poll margin
Landslide margin (over 30%) 62% 65% -3%
Smaller poll margin (29% or less) 68% 60% +8%
By level and context
Consistent federal law 67% 81% -14%
Inconsistent federal law 40% 37% +3%
Consistent state/local law 71% 56% +15%
Inconsistent state/local law 57% 57% 0%
By type of issue
Fundamental freedoms cases 62% 66% -4%
Nonfundamental freedoms cases 67% 56% +11%
First Amendment claims 57% 63% -6%
Non-First Amendment claims 66% 63% +3%
Economic cases 53% 71% -18%
Non-economic cases 66% 60% +6%
By timing of the poll
Pre-decision poll 71% 67% +4%
Post-decision poll 52% 57% -5%
By ideology of public opinion
Conservative public opinion 70% 65% +5%
Liberal public opinion 55% 72% -17%*
No clear ideology 75% 80% -5%
By type of decision
Full, written opinion 60% 54% +6%
Cert denial, other 77% 67% +10%
Note: The total number of decisions is 130 for earlier Courts and 107 for the
Rehnquist Court; decisions with evenly divided or unclear polls are excluded
from this table. To compute the percent of inconsistent decisions, subtract the
percent of consistent decisions from 100%, by column.
* = stat. signif. at .05 for the difference, by time periods.
Public Opinion and the Rehnquist Court 49
CONCLUSION
51
52 Public Opinion and the Rehnquist Court
though they typically sit on the Supreme Court for two decades or
longer (Epstein et al. 1998, Segal and Cover 1989, Segal et al. 1995).
Once appointed, most justices vote consistently with their pre-appoint-
ment views as demonstrated by their voting behavior on lower courts,
now usually federal appeals courts, or by their political and legal back-
ground, or by the arguments they made as a legal scholar.
To be sure, not all the Rehnquist Courts decisions were politically
conservative. Several well-known rulings (such as the flag-burning deci-
sions) were politically liberal (Clayton 1999; Kahn 1999). Nor did any
of the justices inevitably vote in the same ideological direction.1
Nonetheless, the Rehnquist Courts generally conservative record has
been widely commented upon. Some critics charge that the Rehnquist
Courts conservative bloc (most frequently, Justices Rehnquist,
OConnor, Scalia, Kennedy, and Thomas) reached politically conserva-
tive goals even at the expense of upholding precedents (Brisbin 1997:
90-92; Chemerinsky 1999a; Gottlieb 2000: 66; Maltz 1994).
The Rehnquist Courts conservative record, coupled with its fre-
quent 54 or 63 ideological divisions, raises an important question.
Does ideology affect how well the Court represents American public
opinion? Under the business-as-normal model, assume that each jus-
tice usually simply votes his or her own liberal-versus-conservative
leanings in a predictable and straightforward manner (Segal and
Spaeth 1993, 2002). If so, then how often the Court agrees with public
opinion depends on two issues. First, is American public opinion lib-
eral or conservative on cases that reach the Supreme Court? Second,
do liberal or conservative justices happen to hold a Court majority at
the time of the ruling?
Through the pairwise method it is possible to test whether one
additional conservative vote (or, alternatively, one additional liberal
vote) would have made the Rehnquist Court more representative of
public opinion. Or, would two or three additional conservative (or,
alternatively, liberal) votes have affected how well the Rehnquist Court
represented public opinion?
As an example, consider the 54 Roper v. Simmons (2005) decision,
overturning the death penalty for convicted murderers who were
younger than eighteen at the time of their crime. Roper v. Simmons
agreed with nationwide public opinion2 and was classified both as a lib-
eral decision and as consistent with the polls. If there had been one, two,
or three additional liberal votes, the Courts 54 decision would simply
have been 63, 72, or 81, and still consistent with public opinion.
However, had there been one (or two or three) additional conservative
votes, the Roper decision would have come out as conservative and as
54 Public Opinion and the Rehnquist Court
supreme court decision, and upholding the Kansas state law (the
Sexually Violent Predator Act), the Rehnquist Court agreed with a
large (82-to-17%) Gallup Poll majority. In so deciding, the Rehnquist
Court poll corrected the Kansas state supreme court decisionthat
is, it reversed an inconsistent lower court decision.
Figure 3.2
Percentage of Supreme Court decisions consistent with public opinion,
prior to the Rehnquist Court, with differing vote changes, by
ideology (Note: Figure 3.2 includes only full, written
decisions and excludes unclear decisions.)
to 61% the number of these judicial decisions that agreed with public
opinion. The Rehnquist Court thereby had a poll correction rate of
+8% (or 61% 53% = +8%).
Whether or not a lower court decision agrees with American public
opinion also helps to predict whether the Supreme Court will uphold or
overturn a lower court decision, once certiorari has been granted. If a
lower court decision agreed with nationwide polls, the Rehnquist Court
upheld it 60% of the time. However, if a lower court decision disagreed
with nationwide polls, the Rehnquist Court upheld it only 38% of the
time.9 In other words, if the Supreme Court granted certiorari, a lower
court decision that agreed with nationwide polls had a much better
chance of being affirmed than a lower court decision that did not.
The figures are based only on cases for which the Rehnquist Court
granted certiorari, then handed down a full, written opinion. In reality,
much like earlier Courts, the Rehnquist Court denied certiorari on
nearly 99% of all the thousands of appeals it received each term. What
would a comparison of the much smaller cert grant pool and the
much larger cert denial pool show?
In the Rehnquist Courts much larger cert denial pool, some 77%
of the last lower court decisions were consistent with nationwide polls.
By denying certiorari on these lower court decisions, the Rehnquist
Court was thereby also consistent with nationwide public opinion 77%
of the time. By comparison, in the much smaller cert grant pool,
barely half (only 53%) of the last lower court decisions agreed with
nationwide polls. In the cert grant pool, the Supreme Court then
reversed, vacated, or reversed and remanded enough lower court deci-
sions to raise that 53% figure to 61% consistent with public opinion.
Restated differently, the Rehnquist Court denied certiorari on a pool of
cases 77% of which were consistent with American public opinion, and
granted certiorari on a pool of cases only 53% that were consistent with
public opinion. Although based on small samples of decisions, it seems
that the Rehnquist Courts certiorari grants also brought judicial deci-
sion-making more closely into line with public opinion.
The Rehnquist Court did not invariably engage in poll correction.
Its highest poll correction rates occurred on high profile (as measured
by Gallup Polls most important problem question) decisions (a
+13% poll correction rate), criminal issues (+24%), and morality and
abortion issues (+18%). Decisions involving health care and economic
issues represent the opposite extreme, with a negative 30% and
15% poll correction rate, respectively. By level of last lower court,
the Rehnquist Court had a +8% poll correction rate against federal
appeals courts and a +26% poll correction rate against state courts
(typically, state supreme courts).
58 Public Opinion and the Rehnquist Court
Some justices more often engaged in poll correction against the lower
courts than did others. During the Rehnquist Court, Justices Rehnquist,
Kennedy, and OConnor had the highest poll correction rates+18%,
+17%, and +13%, respectively. Justices Ginsburg, Blackmun, Stevens,
Thomas, and Souter did not engage in poll correction at allreceiving
8%, 5%, 7%, 3%, and 5% rates, respectively.10
Whether poll correction is intentional on the justices part is an
intriguing, yet difficult question to answer. According to Chief Justice
Rehnquists (1986) sense and share argument, the justices may some-
times pick unpopular lower court decisions to review and reverse.
Alternatively, poll correction may simply be an inadvertent by-product
of the justices other goals, such as producing politically conservative
(or liberal) decisions, reducing demands on their time to a manageable
level (Baum 1997), or supporting their favorite judicial theories. Higher
level judges may be more sensitive to nationwide public opinion
because they are more closely scrutinized during the nominations
process, make decisions that receive media or congressional scrutiny, or
feel that they should reflect national, not statewide or regional atti-
tudes. Higher level courts are also collegial courts, thereby limiting the
influence of a single judge. Higher level judges typically receive more
information about public opinion through amicus briefs and the media
(Epstein 1999). Higher level judge may also follow contemporary
public opinion to avoid having a decision overturned or (admittedly
less likely) having the Courts jurisdiction curbed. Supreme Court jus-
tices are relatively free to disregard precedents that reflect long-out-
dated popular opinion, although lower level judges are not so free to
do so. Whichever is the case, both at the certiorari stage and at the full
opinion stage, the Rehnquist Courts business-as-normal patterns of
poll correction brought judicial decision-making more closely into line
with public opinion and, in so doing, served as a majoritarian check on
the lower courts.
Poll correction is not unique to the U.S. Supreme Court. Federal
appeals courts also engage in poll correction against federal district
courts. In a longer over-time analysis since the 1930s (Marshall 2003),
when both a federal district court and a federal appeals court made a
decision that received Supreme Court review, some 61% of federal
appeals court decisions, but only 49% of federal district court decisions
agreed with nationwide polls. Thus, federal appeals courts had a +12%
poll correction rate against federal district courts. Federal district court
decisions that reached the U.S. Supreme Court directly were consistent
with nationwide polls only 24% of the time, but the Supreme Courts
decision agreed with the polls 51% of the time in these disputesa
Judicial Norms, Representation, and Public Opinion 59
The terms judicial activism and judicial restraint are used in sev-
eral different ways, perhaps the most common of which is to refer to
the Supreme Courts willingness (or reluctance) to strike down dis-
puted federal, state, or local laws and policies, including agency deci-
sions (Canon 1982; Halpern and Lamb 1982; Todd 2004). Here, a
judicial activist decision is one that strikes down a law or policy
either on constitutional or other grounds, or else adopts such a
narrow statutory interpretation that the law or policy is effectively
nullified. The term judicial restraint means that the Supreme Court
upholds a federal, state, or local law or policy, or defers to an
agencys statutory interpretation.
The Rehnquist Courts decisions on the proper role of the federal,
state and local governments are among its most significant and contro-
versial legacies (Chemerinsky 2001; Fallon 2002; Gottlieb 2000;
Massey 2002; Yarbrough 2000). The Rehnquist Court upheld many
state and local laws, actions, and policies that might well have been
struck down by the Burger Court or the Warren Court. Some authors
60 Public Opinion and the Rehnquist Court
(Davis 1989; Shapiro 1976, 1980) describe the Rehnquist Courts incli-
nation to make decisions favoring states and localities as resulting pri-
marily from changes in the Courts membershipespecially the
pro-states views of Justices OConnor, Kennedy, Scalia, and Rehnquist.
While it certainly did not uphold all state/local laws or policies, the
Rehnquist Court was much more favorable toward state and local
policy-making than earlier Courts were.
For the federal government, the picture is more complex, and the
Rehnquist Courts record of judicial activism versus restraint varied
from area to area. The Rehnquist Courts skepticism toward federal
policy-making was especially evident in cases involving relations
between the executive and legislative branches, toward claims by the
president, and in decisions that involved federal control or supervi-
sion over the states and localities. In a string of rulings, mostly since
the early 1990s, the Rehnquist Court reexamined long-standing fed-
eralism doctrines, struck down several key federal laws, and set out
new theories of state-federal relations. These rulings were often
decided narrowly, by a 5-4 vote, with the Courts conservative bloc
(typically, Justices Rehnquist, OConnor, Scalia, Kennedy, and
Thomas, and, in earlier years, sometimes Justice White) prevailing.
These decisions ranged widely in their constitutional logicfrom the
Guarantee Clause of Article IV, to the Fourteenth Amendment, to
the Tenth Amendment, to the Eleventh Amendment, to the
Commerce Clause.
For example, several well-known Rehnquist Court rulings
expanded a states sovereign immunity standing under the Eleventh
Amendment.13 The Rehnquist Court handed down several federalism
rulings unfavorable to the federal government, striking down or nar-
rowly construing federal laws to make them less widely applicable.14
The Rehnquist Court also narrowed Fourteenth Amendment or
Commerce Clause suits against states.15 Taken together, these rulings
often tilted the scales in favor of states or localities and against the fed-
eral government.
Not all the Rehnquist Courts federalism decisions favored the
states (Ponnuru 2004). Several key decisions upheld federal regulations
or allowed lawsuits against the states to proceed.16 Nor did dissenters
(in the Rehnquist Courts last decade, typically, Justices Stevens, Souter,
Ginsburg, and Breyer) accept either the logic or the precedent value of
these federalism rulings.17 Nonetheless, the trend in favor of state gov-
ernment decisions is an important Rehnquist Court legacy.
Elsewhere, the Rehnquist Courts record on federalism was very
mixed. In criminal cases, the Rehnquist Court often favored federal and
Judicial Norms, Representation, and Public Opinion 61
Courts actual record was that 64% of its decisions agreed with the
polls.19 Restated, by adopting a pure judicial restraint model, the
Rehnquist Court would have agreed 7% more often with American
public opinion. However, adopting a pure judicial activism model
would have reduced from 64% to 29% the frequency with which the
Rehnquist Court agreed with American public opinion.20
These findings hold up even if federal and state/local laws or poli-
cies are considered separately. In both areas, by simply practicing judi-
cial restraint, the Rehnquist Court would have better reflected
American public opinion. On challenges to federal laws and policies,
the Rehnquist Courts decisions agreed with public opinion 59% of the
time - but if it had always practiced judicial restraint, that figure
would have jumped to 73% consistent. In its decisions on state and
local laws and policies, the Rehnquist Courts decisions agreed with
public opinion 65% of the timebut if it had always practicing judicial
restraint, that figure would have increased to 70% consistent.21
To summarize: the Supreme Courts views on judicial activism and
restraint affect how often its decisions reflect American public opin-
ion. As Rosen (2006) argued, by adopting a pure judicial restraint
stance, the Rehnquist Court would have better represented public
opinion. Stated otherwise, the Rehnquist Court did not poll correct
federal, state, and local actions in the same way as it poll corrected the
lower courts.
One of the Rehnquist Courts most dramatic trends was the declining
number of full, written opinions. From its first to its last term, the
number of full, written decisions declined substantiallyfrom 152 to
79, with a record low number of only 77 full, written decisions during
the 1999/2000 term, according to the Harvard Law Review.22 By com-
parison, during the last two terms prior to the Rehnquist Court, the
Burger Court handed down an average of 155 full, written decisions
per term. The number of full, written opinions declined, although there
was a steady increase in the number of appeals filed per term.
Journalists and judicial scholars have debated both the reasons for,
and the importance of the Rehnquist Courts light docket (Banks
1995) or shrunken docket (Hellman 1996). In 1988 Congress elimi-
nated nearly all the Courts mandatory jurisdiction, thereby modestly
decreasing the Courts plenary docket (Hellman 1996: 412). Declining
conflict between circuits modestly contributed to the decline in the
Judicial Norms, Representation, and Public Opinion 63
life (Chemerinsky 1996; Closen 1998). On the other hand, other schol-
ars argue that the Rehnquist Courts shrinking docket and the limited
scope of many decisions yield positive results in that states, Congress,
and the lower courts enjoy more flexibility in dealing with modern
problems (Dorf 1998; Sunstein, 1996).
Whatever its causes or consequences, what impact had the
Rehnquist Courts shrinking docket on representing public opinion?
What if the Rehnquist Court had not reduced by nearly half the
number of full, written decisions?
Consider that the Rehnquist Courts business-as-normal pattern
was to select lower court rulings only half (53%) of which agreed with
nationwide polls, and then to reverse enough of these decisions to raise
that figure from 53% to 61%a poll correction rate of +8%.
Lowering the number of full, written opinions by about seventy-five a
term means that the Rehnquist Court thereby failed to poll correct
about six lower court decisions a term. Over the entire Rehnquist
Court, this would be nearly a hundred lower court decisions that were
not poll corrected.
By this estimate, the dwindling number of full, written decisions,
per term, had a modest, negative impact on representation. If the
Rehnquist Court (hypothetically) had denied certiorari on all appeals,
the net number of consistent judicial decisions would have dropped by
yet another six decisions, per term. By contrast, if the Rehnquist Court
had decided an extra seventy-five or so full, written decisions per
termthereby keeping its output at the Burger and Warren Court
levelsthe number of consistent judicial decisions would have
increased by six decisions, per term.
These numbers may seem quite modestindeed almost trivial
in light of the thousands of appeals the Court denies each term.23 Yet
even a modest change in poll correction may have an important
impact. First, some Supreme Court decisions are of sweeping
national significance. When the Court overturns an inconsistent
lower court ruling on a highly visible issue, it demonstrates its
responsiveness to public opinion, occasionally even increasing or
reducing its own popularity. Second, Supreme Court decisions are
precedents for the future disputes. One additional decision that is
consistent with public opinion may lead to many more consistent
lower court rulings in the future. Third, Supreme Court rulings send
a signal to interest groups and potential litigants that the Court
might hear more appeals from the lower courts in the near future
(Baird 2004; Richards and Kritzer 2002).
Judicial Norms, Representation, and Public Opinion 65
CONCLUSION
67
68 Public Opinion and the Rehnquist Court
Two measures were coded for each type of group. First, did the
groups position agree with public opinion? Second, did the Rehnquist
Courts decision agree with the groups position? Because groups
seldom participate by filing amicus briefs at the certiorari stage, due to
time and strategic concerns (Caldeira and Wright 1988; Epstein 1993),
only full, written decisions are included in the analysis.
As a benchmark, the federal governments involvement through the
solicitor generals arguing a case or filing an amicus brief was also
coded in the same manner. The solicitor general is a very successful liti-
gant, both as a direct party and as an amicus participant (Caplan 1987;
Deen, Ignagni, and Meernik 2003; Kearney and Merrill 2000; Salokar
1992; Sheehan, Mishler, and Songer 1992; Strauss 1998; Yates 2002),
in part due to that offices litigation experience (Days 1998; McGuire
1998), restraint in filing appeals, and careful selection of cases. The
solicitor generals position, which also typically reflects current federal
law, policy, and politics, also benefits from the long-standing norm of
judicial deference to Congress, the White House, and federal agencies
(Johnson 2003).7 Often, but by no means always, the solicitor generals
position is close to the Courts own preferences (Bailey, Kamoie, and
Maltzman 2005).
As Table 4.1 reports, interest group positions were not closely
related to American public opinion. These twelve types of frequently
active interest groups, active either as a direct party or much more fre-
quently through an amicus brief, agreed with public opinion only half
(51%) the time.8 Nearly as often (49% of the time) interest groups dis-
agreed with public opinion. These results are almost identical to those
from the 1930s through the mid-1980s when only 50% of interest
group positions agreed with nationwide polls (Marshall 1989). Interest
groups much less often agreed with public opinion than did the solici-
tor general or federal agencies, whose positions agreed with public
opinion 80% of the time.9 Taken individually, six of the twelve groups
mostly took positions agreeing with American public opinion, and six
did not. At the extreme, Catholic and pro-life groups were the most
likely to agree with public opinion, and liberal, religious groups were
the least likely to do so.
Interest groups that agreed with public opinion were much more
successful than those that did not. All twelve types of groups suffered
a drop in their success rates when they disagreed with public opinion.
Still excluding the federal government, if an interest groups position
agreed with public opinion, the group won 67% of the time. If a
group disagreed with majority public opinion, however, its success
rate dropped to 41%a 26% penalty. This penalty differed greatly
Interest Groups, Representation, and Public Opinion 71
between groups. Catholic and pro-life groups had the smallest penalty
(only 1%), while feminist and pro-choice groups had the largest
penalty (55%).10
Table 4.1
Interest Group Involvement and Success during the Rehnquist Court
Groups Agreement withPercentage Success
Public Opinion When
Agree Disagree
with Pub. with Pub.
% Agree % Disagree Opinion Opinion
Type of group and
number of positions
taken
Civil liberties, free speech,
media (41) 41% 59% 65% 29%
States, counties, cities (50) 62% 38% 61% 47%
Civil rights, race (23) 35% 65% 50% 33%
Education (12) 33% 67% 75% 63%
Corporations, businesses,
associations (26) 42% 58% 73% 33%
Legal, bar associations (14) 57% 43% 75% 67%
Labor unions (7) 57% 43% 75% 33%
Feminist, pro-choice (18) 44% 56% 75% 20%
Liberal religious (22) 32% 68% 57% 47%
Catholic, pro-life (22) 86% 14% 68% 67%
Conservative (54) 57% 43% 65% 48%
Law enforcement (11) 64% 36% 100% 50%
All 12 types of groups (300) 51% 49% 67% 41%
Federal government (56) 80% 20% 69% 73%
Note: The category for all twelve types of groups excludes the federal govern-
ments involvement.
How does this 26% penalty for disagreeing public opinion com-
pare to the impact of an interest group disagreeing with the federal gov-
ernment? Overall, these twelve types of interest groups agreed with the
federal governments position roughly half (48%) of the time.11 If a
groups position agreed with the federal governments position, the
group won 77% of the time. However, a group that took a position
disagreeing with the federal government won only 36% of the timea
penalty of 41%. In percentage terms, then, the penalty for disagreeing
with public opinion was about two-thirds the penalty for disagreeing
with the federal government.
72 Public Opinion and the Rehnquist Court
public opinion cost the group 23% in their winloss ratios. During the
Rehnquist Court, disagreeing with public opinion cost these groups
31% in their win-loss ratios.
Now, consider the success rates of the three most politically con-
servative types of groups: Catholic and pro-life, conservative, and law
enforcement groups. Prior to the Rehnquist Court, these groups took
twenty-one positions that could be compared to public opinion polls;
they were successful 54% of the time if they agreed with public opin-
ion, and 50% of the time if they did not. During the Rehnquist Court
these groups took eighty-seven positions that could be compared with
public opinion polls. As expected, these groups enjoyed a reward
during the Rehnquist Courtwinning 70% of the time when they
agreed with public opinion, versus 50% of the time when they did not.
Over time, then, conservative groups winloss ratios improved by
16% if they agreed with public opinion, although not at all if they did
not. By comparison, the penalty for disagreeing with public opinion
was 4% prior to the Rehnquist Court, versus 20% during the
Rehnquist Court.
Some groups winloss ratios are much more sensitive to public
opinion than to Court eras. Consider the experience of corpora-
tions, professional, and trade associations. Prior to the Rehnquist
Court, these groups took nineteen positions that could be compared
to nationwide polls, winning 57% of the time when they agreed
with the polls, but only 30% of the time when they disagreed with
the polls. During the Rehnquist Court, corporations and profes-
sional and trade associations took twenty-seven positions that could
be compared with nationwide polls, winning 73% of the time when
they agreed with the polls, but only 33% of the time when they did
not. This group experienced a small reward from the Rehnquist
Court. Their winloss ratio improved by 16% when agreeing with
public opinion, although only by 3% when disagreeing with public
opinion. By contrast, the penalty for disagreeing with public opin-
ion was much greater. Before the Rehnquist Court era, the penalty
for disagreeing with public opinion was 27%, and during the
Rehnquist Court the penalty for disagreeing with public opinion
was 40%.
To summarize: just as expected, some interest groups suffered a
penalty from the Rehnquist Court, while other groups enjoyed a
reward. Even so, all three types of groups experienced a penalty for dis-
agreeing with public opinion, both before and during the Rehnquist
Court. Since the 1930s, American public opinion has significantly
mediated the success rates of interest group litigants.
74 Public Opinion and the Rehnquist Court
CONCLUSION
This chapter adds to the growing list of caveats about interest group
influence on Supreme Court decision-making. The U.S. solicitor gen-
erals position significantly affected whether or not the Rehnquist
Courts full, written decisions agreed with American public opinion.
None of the twelve types of interest groups considered here had such a
significant impact. On the average, disagreeing (versus agreeing) with
public opinion decreased an interest groups chances of winning a
Rehnquist Court decision from 67% to 41%. All types of interest
groups suffered a penalty for disagreeing with public opinion, although
the size of the penalty varied greatly from group to group.
For several interest groups, the penalty for disagreeing with public
opinion was even greater than the size of their penalty (or reward) that
Interest Groups, Representation, and Public Opinion 75
resulted from the shift from earlier Courts to the Rehnquist Court. Not
a single type of interest group significantly mediated the relationship
between American public opinion and the Rehnquist Courts full, writ-
ten decisions. Why this occurs is an intriguing question, but one that
cannot be fully answered from this data. Under the attitudinal model, it
may be that the justices usually vote their own values, and interest
group positions add relatively little to this process. Perhaps the justices,
if strategically motivated, fear specific interest groups much less than
public opinion. Because most state, local, and federal decisions being
challenged at the Supreme Court do reflect contemporary public opin-
ion, interest groups challenging these policies also suffer from whatever
judicial deference exists among the justices. Conceded, this sample of
poll-matched decisions is a small one, and a much larger sample of
decisions might uncover different findings. However, results from ear-
lier Courts are quite similar to those for the Rehnquist Court.
In sharp contrast to interest groups, the U.S. solicitor general did
not pay a penalty for disagreeing with public opinion. The solicitor
general also significantly mediated the linkage between public opinion
and Rehnquist Court decision-making. The same results occurred for
earlier Courts since the 1930s. For the modern Court, then, the null
interest group model accurately describes the relationship between
public opinion and Supreme Court decision-making, at least at the full,
written stage. Accordingly, only the solicitor general is included in
chapter nines empirical model.
To be sure, these results do not suggest interest groups are insignif-
icant at the Supreme Court. Interest groups play a critical role in many
confirmation battles over Supreme Court nominees, and they often ini-
tiate, finance, and support appeals to the Supreme Court. By filing
amicus briefs at the certiorari stage, groups signal an appeals impor-
tance, and may persuade the Court to grant certiorari. Some amicus
briefs succeed in influencing dicta. All this notwithstanding, at the
Supreme Courts full, written stage, contemporary public opinion con-
strains interest groups ambitions much more than the reverse.
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CHAPTER FIVE
J ust as some Supreme Court decisions agree with public opinion, but
others do not, so, too, can the individual justices votes either agree
with public opinion, or not. Beginning in the 1930s, modern polling
made it possible to measure how closely the justices votes actually rep-
resent public opinion. During the Hughes, Stone, Vinson, Warren, and
Burger Courts, Justices Hughes, Brandeis, and Vinson voted with poll
majorities over three-quarters of the time. At the other extreme, ten jus-
tices did so less than half the time. Chief justices, justices from presti-
gious law schools, and justices who had been close presidential advisers
most often agreed with public opinion (Marshall 1989: 106).
Were the same patterns true for the Rehnquist Court? As an exam-
ple, consider the Lee v. Weisman (1992) ruling. By a 54 decision, the
Supreme Court affirmed a First Circuit Court of Appeals ruling ban-
ning prayers as invocations and benedictions during a public schools
graduation ceremony. Justices Kennedy, Blackmun, Stevens, OConnor,
and Souter joined or concurred in the majority opinion. Justices Scalia,
Rehnquist, White, and Thomas dissented.
The Lee v. Weisman ruling was matched with a 1993 Gallup Poll
that asked: The U.S. Supreme Court has ruled that conducting reli-
gious prayers at any public school graduation ceremony is unconstitu-
tional because it violates the First Amendment, which concerns the
separation between church and state. Do you, yourself, believe that
prayers should or should not be part of public school graduation cere-
monies? A large majority (74 to 23%) of those surveyed responded
that prayers should be allowed, and the Lee v. Weisman ruling was
coded as inconsistent with public opinion.1 The five majority justices
votes (Kennedy, Blackmun, Stevens, OConnor, and Souter) were
counted as inconsistent. The four dissenters votes (Scalia, Rehnquist,
White, and Thomas) were counted as consistent with public opinion.
By this standard, the Supreme Courts full, written decisions yield
votes for the individual justices that are either consistent with American
public opinion, inconsistent, or unclear (if the polls themselves are
77
78 Public Opinion and the Rehnquist Court
Table 5.1
Rehnquist Court Justices Ranked by Agreement with Public Opinion
Rank Justice % Consistent Number of Votes
1 White 73% 37
2 Rehnquist 69% 86
3 OConnor 63% 84
4 Breyer 60% 47
5 Scalia 58% 85
6 Kennedy 56% 77
7 Thomas 53% 60
8 Souter 51% 63
9-10 (tie) Ginsburg 50% 50
9-10 (tie) Powell 50% 6
11 Stevens 45% 86
12 Blackmun 41% 37
13 Marshall 38% 26
14 Brennan 35% 20
Table 5.2 extends Table 5.1 by showing how the justices vote,
depending on whether public opinion itself is liberal or conservative. As
many Court-watchers note, the justices typically vote their ideological
preferences, which are relatively stable over time. If this is true, then a
justices votes might be very consistent with public opinion, but only
because the polls agree with the ideological position the justice was
already likely to vote for. For example, if public opinion was always
conservative on issues that reached the Court, Justice Thomas or Justice
Scalia (the Rehnquist Courts two most conservative justices) would be
quite consistent with public opinion. However, this would simply be an
artifact of the state of public opinion.
This is a different issue than whether a justice simply votes consis-
tently with public opinion. Table 5.1 addresses only consistency, and
Justices and Representation 79
Table 5.2
Rehnquist Court Justices Voting Patterns, Percentage of Conservative
Votes, by Ideology of Public Opinion
Conservative Poll Liberal Poll
Justice Majorities Majorities %Difference
(82%) Scalia 85% 77% 8%
(82%) Thomas 83% 79% 4%
(80%) Rehnquist 88% 69% 19%
(74%) White 84% 50% 34%
(68%) Kennedy 76% 58% 18%
(59%) OConnor 72% 41% 31%
(33%) Breyer 52% 16% 36%
(29%) Souter 38% 20% 18%
(20%) Powell 25% 0% 25%
(16%) Ginsburg 23% 12% 11%
(15%) Stevens 19% 11% 8%
(6%) Blackmun 8% 0% 8%
(6%) Brennan 7% 0% 7%
(4%) Marshall 6% 0% 6%
Note: Justices are listed, in descending order, according to their percentage of
conservative votes, indicated in parentheses. Entries in the first and second data
columns indicate the percentage of conservative votes a justice cast in decisions
for which public opinion was conservative, or alternatively, liberal. The differ-
ence column indicates the percentage change in the two prior columns.
Because votes without a clear ideological content are excluded, the number of
votes, per justice, in Table 5.2 is slightly lower than in Table 5.1.
All the justices show some difference in their voting patterns, the
size of which varies greatly by justice. Justices Breyer, White, and
OConnor show the largest difference. Justices Thomas, Marshall,
Brennan, Scalia, Blackmun, and Stevens show the smallest differences.
80 Public Opinion and the Rehnquist Court
Table 5.3
Rehnquist Court Justices Voting Patterns, by Public Opinion Ideology,
by Groups of Justices
% Conservative Votes % Conservative Votes Difference
When Public Opinion When Public Opinion
is Conservative is Liberal
( 3) Most conservative
justices 86% 72% 14%
( 3) Moderate-to-conserv-
ative justices 76% 49% 27%
( 2) Moderate-to-liberal
justices 43% 18% 25%
( 6) Most liberal justices 15% 8% 7%
(14) Total justices 56% 41% 15%
Note: Results in Table 5.3 are significant at the .01 level.
In short, the Rehnquist Court was as often consistent with the polls
as were earlier Courts since the mid-1930s. Further, both the Rehnquist
Court, taken as a whole, and all its fourteen justices, taken individu-
ally, voted differently, depending on the publics ideology. The remain-
der of this chapter describes six models linking American public
opinion to the justices voting patterns.4
The political parties and ideology model predicts that a justices votes
are closely tied to political party and ideology. Both party and ideology
Justices and Representation 81
are important in the nomination and confirmation process, and are pre-
dicted to be tied to whether or not a justice represents public opinion.
A justices political party leaning would be known prior to his or her
confirmation, and for most justices, so, too, would be the justices ideo-
logical leanings.
Political Party
All the Rehnquist Courts justices had clear political party ties. With
two exceptions (Justice Powell and Brennan), all were from the
appointing presidents party. Presidents now typically choose federal
judges almost exclusively from their own party, and political party is
often closely tied to a judges ideology. Democratic judges more often
support liberal economic claims, civil rights and civil liberties claims,
and criminal defendants and prisoners claims (Baum 1998b; Goldman
and Slotnick 1997; Stidham, Carp and Songer 1996).
From the 1930s through the 1970s, the Democratic Party claimed a
plurality, and sometimes a majority of Americans party loyalties.
Accordingly, Democratic justices and justices appointed by Democratic
presidents might have been predicted to be more consistent with public
opinion. Yet since the mid-1980s, the grassroots balance between
Republicans and Democrats has grown much closer,5 and no prediction
is offered about which partys justices or which presidential party
appointees will be more consistent with public opinion. The appointees
of recent presidents of either political party (Reagan, Bush, and
Clinton) are predicted to be more consistent with public opinion than
earlier presidents appointees.
Justices Own Party Preferences. The fourteen Rehnquist Court justices
were first divided by the justices own party preferences. Overall, only
slight differences appeared. Republican justices votes were only slightly
more consistent with public opinion than were Democratic justices
votes56% versus 54% consistent, respectively, reported in Table 5.4.
Neither were significant differences by justices party reported for ear-
lier Courts since the 1930s (Marshall 1989: 108).
Party of the Appointing President. Typically, a president now picks jus-
tices from his own party. Only Justices Brennan and Powell were
crossover appointeesboth Democrats appointed by a Republican
president. As a separate test, all Republican presidents appointees were
compared to all Democratic presidents appointees. Again, there was
little impact of political party in terms of how often a justices votes
reflected public opinion. Appointees of Republican presidents voted
82 Public Opinion and the Rehnquist Court
Ideology
Most justices are consistent, over time, in their ideology. For example,
Justices Thurgood Marshall and William Brennan were described as
liberals at the time of their nomination, and later consistently voted in a
liberal direction. Justices Antonin Scalia and Clarence Thomas were
quite conservative when nominated, and then compiled conservative
voting records on the Court. Some justices, however, are less pre-
dictable, and change their voting behavior over time while on the Court
(Epstein et al. 1998; Martin and Quinn 2002). In two earlier studies
(Marshall 1989: 109110; Young 2001), ideologically moderate jus-
tices more often reflected public opinion in their votes than did liberal
or conservative justices.
Judicial scholars measure ideology in several different ways
through the opinions of journalists at the time of a justices nomina-
tion; or, alternatively, through scales, clustering techniques, bloc
analysis, or other measures based on justices actual votes on the Court.
Table 5.4 reports two measures of ideologyfirst, journalists impres-
sions of nominees ideology, and second, the justices actual voting
behavior while on the Court.
Justices and Representation 83
Table 5.4
Percentage of Justices Votes Consistent with Public Opinion,
by Political Party and Ideology
Percentage of Number of
Consistent Votes (Justices/Votes)
Overall average consistent 55% (14/764)
By political party
Justices own party
Republican 56% (8/578)
Democratic 54% (6/186)
Appointing presidents party
Republican 55% (10/604)
Democrat 56% (4/160)
Party and era of appointing president
Earlier Republicans 52% (5/235)
Earlier Democrats 59% (2/63)
Later Republicans 57% (5/369)
Later Democrats 55% (2/97)
By Ideology
Preconfirmation ideology**
Conservative 54% (7/423)
Moderate 62% (4/245)
Liberal 44% (3/96)
On-the-Court ideology**
Conservative 61% (3/231)
Moderate 60% (5/307)
Liberal 45% (6/222)
Note: Variables listed in Tables 5.4 through 5.9 are not significant at the .05
level unless so indicated. **= signif. at .01. Ratio-level variables reported in the
following tables include all fourteen justices.
Judicial Backgrounds
By personal background
Childhood region
East 50% (5/244)
Midwest 54% (3/209)
West 62% (4/245)
South 53% (2/66)
Region at nomination
East 57% (9/474)
Midwest 44% (2/123)
West 60% (2/161)
South 50% (1/6)
Mobility between regions**
Yes, moved between regions 62% (6/399)
No, did not 48% (8/365)
Childhood urban setting
Solely urban 53% (10/520)
Rural, small town, mixed 59% (4/244)
Childhood social class
Upper or upper-middle 58% (6/386)
Middle 55% (6/282)
Lower-middle or lower 49% (2/86)
Adult wealth
Above average 54% (5/330)
Below average 56% (4/434)
Minority status, by gender
Women 58% (2/134)
Men 55% (12/630)
Minority status, by race
Black 49% (2/86)
White 56% (12/678)
Minority status, by religion
Jewish 55% (2/97)
Catholic 54% (4/242)
Protestant 56% (8/425)
Combined minority status
Some minority status 55% (8/449)
No minority status 56% (6/315)
Age cohort
Born before 1930 54% (7/298)
Born 1930 or later 56% (7/466)
Table 5.5 (Continued)
Percentage of Votes Consistent with Public Opinion,
by Justices Backgrounds
Percentage of Number of
Consistent Votes (Justices/Votes)
Veteran status
Full, part-time, or related 57% (8/469)
None 52% (6/295)
By law school prestige
Top national law school 56% (13/738)
Less prestigious 38% (1/26)
By clerkship experience
Supreme Court clerk 60% (4/256)
No Supreme Court experience 53% (10/508)
Occupation upon nomination
Lower court judge 53% (10/609)
Appointive 64% (3/149)
Private practice 50% (1/6)
Prior judicial experience**
Some judicial experience 52% (11/635)
No prior judicial experience 69% (3/129)
Top administrative post*
Yes 61% (4/209)
No 53% (10/555)
Top executive or congressional post
Yes 57% (7/427)
No 53% (7/337)
Law school teaching experience
Yes 52% (6/382)
No 58% (8/382)
Perceived qualifications
High (.90 or higher) 52% (7/365)
Medium (.89 to .75) 59% (3/189)
Low (.74 or lower) 57% (4/210)
By political background
Candidate experience
Yes 63% (1/84)
No 55% (13/680)
Campaign experience**
Yes 60% (7/373)
No 51% (7/391)
Close presidential confidant*
Yes 73% (1/35)
No 54% (13/727)
* = signif. at .05 ** = signif. at .o1
Justices and Representation 87
Career Backgrounds
Prior to joining the Court, these justices had a variety of career experi-
ences. Careers that expose a future justice to more diverse, majority-
oriented experiences are predicted to dispose a justice to vote with
majority public opinion.
Law School Prestige. Historically, Supreme Court justices had a wide
range of law school training. Several never attended law school at all,
and were entirely self-taught. In recent years, a prestigious law school
background has apparently become a prerequisite for nomination to
the Court; only one Rehnquist Court justice (Marshall) did not attend a
top law school (Yale, Harvard, Stanford, or Northwestern). In an ear-
lier study (Marshall 1989), attending a prestigious law school signifi-
cantly predicted agreement with public opinion. The same pattern
occurred for the Rehnquist Court, although the lack of variation
among justices now decreases this predictors usefulness.
Justices and Representation 89
Political Backgrounds
Historically, many justices had experience in electoral politics, such as
serving as a U.S. senator or governor. In recent years, however, this
type of experience is no longer common. On the Rehnquist Court, only
Justice OConnor had any elective experience, and, as predicted, she
was above average in her agreement with public opinion (63% consis-
tent, versus 55% for the remaining justices).
Several justices had worked actively in an election as a campaign
advisor or strategist, as a political party activist, or as a candidates vol-
unteer supporter. Examples include Justice Kennedys role for a
California ballot proposition, or Justice Whites role as a Colorado
coordinator for President Kennedys 1960 Democratic presidential race.
As predicted, justices with such experience were significantly more con-
sistent with public opinion than the remaining justices60% versus
51%, respectively.
Presidential Confidant. Historically, several justices served as a close
presidential confidantan experience significantly related to high levels
of agreement with public opinion (Marshall 1989: 114). That practice
(sometimes criticized as cronyism) died out with President Johnsons
failed nominations of Homer Thornberry to the Court and Justice Abe
Fortas to chief justice. On the Rehnquist Court, only Justice White
would have so qualified, and, as predicted, White was more often con-
sistent with public opinion than other justices.17
Presidential Choices
Most Supreme Court nominees were a presidents first and only choice
to a vacancy. Yet a few justices were nominated and confirmed only
after one or more other presidential choices refused, were rated so
poorly by the American Bar Associations review committee that they
were dropped from consideration, were rejected by the Senate, or
Justices and Representation 91
Table 5.6
The Appointments Process Model
Percentage of Number of
Consistent Votes (Justices/Votes)
Presidential choice
First choice 55% (9/584)
Not first choice 55% (4/180)
Crossover appointee
Yes 38% (2/26)
No 56% (12/738)
Confirmation margin
Unanimous or voice vote 55% (7/426)
Fewer than 12 negative votes 52% (5/188)
Over a dozen negative votes 62% (2/146)
Crossover Appointments
Historically, a few presidents appointed opposition party supporters to
the Supreme Courtusually to appeal to voters in an upcoming elec-
tion, to give an air of bipartisanship, or to secure a confirmation when
the Senate was in the opposite partys hands. Crossover appointees
were never common, and the practice last occurred over a third of a
century ago. Only two justices on the Rehnquist Court (Brennan and
Powell) were crossover appointees. Although crossover appointees were
predicted to be more often consistent with public opinion than other
justices, they proved to be somewhat less so. The crossover appoint-
ment thesis not only finds little empirical support; it is also outdated,
since no such appointments have been made in over three decades.
Once confirmed, a justice can take on several roles on the Court. Most
notably, the chief justice is usually in the position to assign opinions,
assuming that he is in the majority in a vote (Maltzman and Wahlbeck
1996). The chief justice also fulfills an institutional role as the Courts
spokesperson before Congress, the executive branch, and the public
(Davis 1999). Some justices are task leaders or play-makers; others
are intellectual leaders; still others act as social leaders, or as argument
leaders during oral argument (Danielski 1972, 1986; Haynie 1992;
Mason 1958; Murphy 1964; Walker, Epstein, and Dixon 1988; White
1976: 200-215). Historically, a few justices pursued off-the-Court
goals, such as running for president or leading important commissions.
Some justices take on none of these roles.
Roles that lead to greater visibility or institutional responsibilities
(such as the chief justice), or involve bargaining skills (such as being a
task leader or writing landmark opinions) were predicted to lead to
greater agreement with public opinion. Unlike the socialization and
Justices and Representation 93
Chief Justice
Since the mid-1930s, chief justices agreed with public opinion more
than other justicesa significant and consistent pattern over time
(Marshall 1989: 124).20 The same pattern reappeared. Chief Justice
Rehnquist was 15% more often consistent with public opinion than
other justices. Further, after Justice Rehnquist became chief justice, his
level of agreement with public opinion rose by 9% (from 60% to 69%)
reported in Table 5.7. By the weight of the evidence, the chief justices
role as the Courts chief lobbyist and spokesperson21 encourages a
greater sensitivity to public opinion.
Table 5.7
The Judicial Roles Model
Percentage of Number of
Consistent Votes (Justices/Votes)
Chief justice**
Yes 69% (1/86)
No 54% (13/678)
Intellectual leadership*
Yes 63% (3/177)
No 53% (11/587)
Task leadership
Yes 62% (3/112)
No 54% (11/652)
Argument leadership
Yes 55% (2/135)
No 55% (12/629)
Swing votes and opinion assignment
Yes 57% (5/353)
No 54% (9/411)
Career significant opinions
authored per term
Above average 59% (4/189)
Below average 54% (10/575)
Rehnquist Court (only), significant
opinions authored per term
Above average 57% (8/407)
Below average 53% (6/357)
* = signif. at .05
94 Public Opinion and the Rehnquist Court
Reputation
Some justices are well-regarded by historians, judicial scholars, judges,
journalists, and attorneys. Yet most justices rank as only average,
below average, or even as a failure. Judicial scholars use two techniques
to rank justices. The first is a reputational method, based on scholars
views of the justices behavior on the Court, writing of opinions, intel-
lectual breath, legal influence, personal integrity, and bargaining skills
(Pederson and Provizer 2003, Schwartz 1997). The second approach is
based on more easily quantified measures, such as number of landmark
opinions written, or the total number of cases decided (Choi and Gulati
2004; Epstein, George, Giles, and Walker 1992).
Admittedly, it is premature to rank the Rehnquist Courts justices,
since some have already died or retired, but others are barely past their
first decade on the Court. Even so, some comparisons are tentatively
possible. Justice Brennan sometimes appears on lists of great or near-
great justices (Abraham 1999: 369372; Pederson and Provizer 2003:
215231; Schwartz 1997: 1113). However, contrary to predictions,
Brennan was among the justices who least often agreed with public
opinion.22 Chief Justice Rehnquists accolades as an outstanding chief
justice sometimes place him on lists of outstanding justices (Pederson
and Provizer 2003: 232245). Rehnquist also ranks as among the jus-
tices who most often agreed with the polls, particularly after he became
chief justice. The evidence from past Courts is also mixed.23
Justices now average about a quarter century on the Court before dying
or retiring (Ward 2003). The justices increasing years on the Court
often leave them as the last political survivors of their generation, and
increasingly distant, at least in age, from most Americans. This pattern
is likely to continue, due to medical advances and presidents preference
for relatively young justices who can survive two or three decades on
96 Public Opinion and the Rehnquist Court
the Court. Some critics also cite the Courts comfortable schedule, the
assistance of law clerks, and the reduction of the Courts mandatory
docket in explaining growing longevity. Law professors, in particular,
debate the pros and cons of longer tenure, perhaps as a result of the
Rehnquist Courts record eleven terms without a new appointment. To
some critics, longer tenure reduces the number of new openings on the
Court, denies some presidents the ability to nominate any justices, and
increases the number of ineffective or even decrepit justices
(Atkinson 1999; Calabresi and Lindgren 2006; Cramton and
Carrington 2006; Farnsworth 2005, 2006; Garrow 2000; Gruhl 1997).
The length-of-tenure model predicts that newly appointed justices
will be more consistent with public opinion than are longer-tenured jus-
tices. Further, the justices will most often vote consistently with public
opinion during their early years, rather than during their later years on
the Court. Very senior justices (e.g., those who have been on the Court
over twenty years) will be less consistent with public opinion than are
junior justices. Five versions of this model are examined in Table 5.8.
Table 5.8
The Length-of-Tenure Model
Percentage of Number of
Consistent Votes (Justices/Votes)
First four years versus later
First four years 62% (6/104)
Later tenure 52% (6/278)
Holdover effects
Newly appointed justices 62% (6/104)
Holdover justices 56% (/790)
Replacement effects
Newly appointed justices 62% (6/104)
Retired justices 49% (6/82)
Senior justices
Prior to 20th year 60% (7/443)
20th year or later 54% (7/235)
Senior and nonsenior justices
Senior justices 54% (7/235)
Nonsenior justices 56% (/538)
voting record thereafter. During the Rehnquist Court six new justices
were appointed, two each by Presidents Reagan (Scalia and Kennedy),
Bush (Souter and Thomas), and Clinton (Ginsburg and Breyer). If the
length-of-tenure model is correct, then these six justices should be
most consistent with American public opinion during their early years
on the Court.
This prediction finds some support. Together, these six justices
agreed with public opinion 62% of the time during their first four
years, compared to only 52% of the time during their subsequent years
on the Court. All the justices except Breyer and Ginsburg were more
consistent during their first four years than in later years.27 During the
Rehnquist Court, then, justices were more consistent with public opin-
ion early in their Court tenure than thereafter.28
Holdover Effects
A different comparison is whether newly appointed justices are more
consistent with public opinion than are holdover justicesthose who
continued to serve during a new justices first four years. Table 5.8 com-
pares newly appointed justices voting records with that of holdover jus-
tices. As an example, during his first four terms, Justice Scalia voted
consistently with public opinion 75% of the time. By comparison,
holdover justices (those who were already on the Court at the time of
Justice Scalias appointment and who were not themselves in their own
first four years) voted consistently with public opinion only 57% of the
time. Thus, during his first four years, Justice Scalia was 18% more con-
sistent with public opinion than were the holdover justices.
On the average, the Rehnquist Courts six newly appointed justices
were consistent with public opinion 62% of the time during their first
four yearsversus only 56% for the holdover justices. In other words,
newly appointed justices were 6% more consistent during their first
four years than holdover justices. Except for Justices Souter and
Ginsburg, all newly appointed justices were more consistent than the
holdover justices.29 By appointing president, the average effects were
higher for appointees of President Reagan (+10%) than Bush (+5%) or
Clinton (+1%).
Replacement Effects
During the Rehnquist Court six justices were appointed, each replacing
a retiring justice. During their first four years on the Court, these six
new justices cast 104 votes that could be matched with nationwide
98 Public Opinion and the Rehnquist Court
polls, of which 62% were consistent with public opinion, and 38%
were not. How does this compare to the last four terms of the six jus-
tices they replaced?
Together, the six retiring justices cast eighty-two poll-matched
votes during their last four years on the Court, only 49% of which
agreed with public opinion. This difference of 13% (or 62%, versus
49%) is termed the replacement effect. Admittedly, this is an indirect
test of the tenure and aging model, since each pair of justices cast votes
on different decisions. Even so, the result is similar to all the other tests
reported here. New justices are more often consistent with American
public opinion than were the justices they replaced.30
Senior Justices
Historically, about a third of justices served more than two decades on
the Court.31 Long-serving justices are appointees of much-earlier presi-
dents, are much older than the average American, and represent the last
survivors of their cohorts. On the Rehnquist Court seven justices
(Brennan, Marshall, White, Blackmun, Rehnquist, Stevens, and
OConnor) reached or exceeded twenty years of service. Their agree-
ment with public opinion after their twentieth year on the Court was
compared, first, to their own record in earlier years, and then to that of
more recently appointed justices on votes after the justices twentieth
year on the Court.
On the average, the Rehnquist Courts longest-serving justices
became less consistent with public opinion late in their tenure.
Together, these seven justices cast votes that were consistent with
public opinion 54% of the time after their twentieth year of service on
the Court, compared to 60% consistent before that stagea drop of
6% over time.32 Most justices became less consistent with public opin-
ion over time.33 This seniority effect was not observed for justices
prior to the Rehnquist Court.
By the final test, the most senior justices were compared to other
justices votes during the period after which the senior justices reached
their twentieth year of service. The seven Rehnquist Court justices
who reached their twentieth year of service were consistent with public
opinion 54% of the time thereafter. By comparison, during that period
the less senior justices (as well as senior justices prior to their own
twentieth year of service) were consistent with public opinion 56% of
the time.
By all these five tests, just as predicted, senior justices are less
often consistent with public opinion, although the differences vary in
Justices and Representation 99
size. Justices are 10% more consistent with the polls in their first four
years, versus thereafter. Newly appointed justices are 6% more consis-
tent than holdover justices. Newly appointed justices are 13% more
consistent in their first four years than were retiring justices in their
last four years. Justices who reach their twentieth year of service are
thereafter 6% less consistent with public opinion than they were in
earlier years. The Rehnquist Courts most senior justices were also 2%
less consistent than less senior justices. Apparently, growing longevity
does decrease the accuracy with which the justices represent public
opinion. This consistent evidence merits inclusion in chapter nines
empirical model of representation.
Robert Dahls thoughtful essay (1957) argued that the Supreme Court
would seldom be out-of-line with a contemporary political majority
except during and shortly after political realignments.34 During
realignments, justices appointed by an earlier president might resist
newly popular political, social, and economic ideas, and, at least tem-
porarily, succeed in overturning laws passed by a newly elected presi-
dent and congressional majority. Eventually, those justices deaths and
retirements would allow a new president to appoint new justices more
in line with the current political majority. Once a new presidents
appointees gained control of the Court, it would again become part of
a national majority.
The Dahl thesis was historical in nature and focused on the
Supreme Courts record of overturning legislation during historical
realignments. Because public opinion polls were not available for
most of American history, Dahls argument could not directly test
whether the Courts decisions during realignment eras actually agreed
with poll majorities. Comparing decisions to poll results is a more
direct test of whether political realignments affect the Courts pattern
of representation.
The evidence for the New Deal period did not support Dahls argu-
ment (Marshall 1989: 118). Republican justices appointed prior to the
1930s were actually slightly more, not less consistent with public opin-
ion than were New Deal appointees. Unfortunately, realignments occur
so seldom (by several accounts, about every thirty years) that there are
few opportunities to reexamine the Dahl thesis. Many justices are con-
firmed, serve on the Court, and retire or die entirely between realign-
ment periods.
100 Public Opinion and the Rehnquist Court
Table 5.9
The Realignment Model
Percentage of Number of
Consistent Votes (Justices/Votes)
Justices by appointing president
Earlier Democratic appointees 59% (2/63)
Earlier Republican appointees 52% (5/235)
Reagan appointees 59% (3/246)
Bush, Sr., appointees 52% (2/123)
Clinton appointees 55% (2/97)
From 1986 to 1992*
Earlier appointees 54% (7/203)
Reagan appointees 66% (3/103)
By White House shift
Prior to shift 61% (/163)
After shift 54% (/601)
For the 1994 realignment
Republican appointees 52% (7/338)
Democratic appointees 56% (2/94)
* = signif. at .05
public opinion 73% of the time. At the other extreme, a justice who
never moved between regions, who did serve as a state or federal judge,
and who was not politically moderate is predicted to agree with public
opinion only 44% of the time. No other variables were statistically sig-
nificant or added to the models predictive power.
How well does this simple model predict the justices voting
behavior during the Rehnquist Court? Despite the small number of
justices, the models predictions are quite accurate, with only a 3.7%
(absolute) error, as reported in Table 5.10. Most justices agreed with
the polls about as often as predicted. For the eight justices appointed
to the Court before Justice Rehnquist became chief justice, the aver-
age (absolute) error was 3.4%, versus 4.2% for the six justices
appointed thereafter.
Table 5.10
Predicted versus Actual Agreement with Public Opinion, by Justice
% Predicted % Actual
Consistent Consistent Difference
Brennan 44% 35% 9%
White 73% 73% 0
Marshall 44% 38% 6%
Blackmun 44% 41% 3%
Powell 54% 50% 4%
Stevens 44% 45% +1%
OConnor 63% 63% 0
Rehnquist 65% 69% +4%
Scalia 55% 58% +3%
Kennedy 52% 56% +4%
Souter 44% 51% +7%
Thomas 55% 53% 2%
Ginsburg 44% 50% +6%
Breyer 63% 60% 3%
CONCLUSION
107
108 Public Opinion and the Rehnquist Court
tudes of American men than did the male justices votes. Individually,
neither OConnor nor Ginsburg was the justice most likely to represent
womens attitudes.35
Table 6.1
Percentage of Rehnquist Court Decisions That Agreed with Group Attitudes
Excluding Including
Cert Denials Cert Denials
By gender
Women 58% 64%
Men 64% 68%
By race
Whites 62% 68%
Blacks 52%* 51%*
By religion
Protestants 62% 68%
Catholics 61% 66%
Jews 55% 57%
By political party
Republicans 62% 66%
Democrats 57% 60%
Independents 59% 64%
Note: Percentages in Table 6.1 are based on a maximum of 88 decisions
excluding denials of certiorari, or 111 decisions including denials of certiorari
(or denials of a stay or denials of a request for an immediate review). Excluded
are instances in which a groups opinion was evenly divided (within the .05-
level margin of error), or in which polls showed inconsistent and conflicting
results for a group. * = significant at .05.
Table 6.2
Agreement Scores, by Gender
Men Women
Women justices (2) 60% 58%
Men justices (12) 56% 55%
Difference 4% 3%
Note: Tables 6.2 through 6.7 are based on a maximum of 781 individual votes
by the justices, and exclude denials of certiorari, where individual justices votes
are not reported. Percentages in these tables indicate the percent of times each
group of justices voted with majorities or pluralities of a demographic group.
Significance levels: * =.05 level; ** = .01 level.
Table 6.3
Agreement Scores, by Race
Whites Blacks
Black justices (2) 52% 44%
White justices (12) 57% 54%
Difference 5% 10%*
Table 6.4
Agreement Scores, by Religion
Protestant Catholic Jewish
Protestant justices (8) 56% 56% 59%
Catholic justices (4) 57% 56% 46%
Jewish justices (2) 52% 53% 64%
Difference 5% 3% 18%*
Table 6.5
Agreement Scores, by Political Party
Republicans Democrats Independents
Republican justices (8) 54% 56% 56%
Democrat justices (6) 42% 54% 54%
Difference 12%** 2% 2%
** = signif. at .01
Table 6.6
Agreement Scores for Types of Justices, Only for Decisions
in which Groups Disagree on a Ruling
By gender of justice (5 rulings)
Women justices (2) 38% agree with women; 62% agree with men
Men justices (12) 37% agree with women; 63% agree with men
By race of justice (15 rulings)
Black justices (2) 20% agree with blacks; 80% agree with whites
White justices (12) 31% agree with blacks; 69% agree with whites
By religion of justices (9 rulings)
Jewish justices (2) 67% agree with Jews; 33% agree with non-Jews
Non-Jewish justices (12) 40% agree with Jews; 60% agree with non-Jews
By political party of justices
(7 rulings)
Republican justices (8) 58% agree with Republicans; 42% agree with
Democrats
Democrat justices (6) 37% agree with Republicans; 63% agree with
Democrats
Note: Percentages in this table are based on cases in which majorities or pluralities of
social groups disagreed on a decision, in which at least one symbolic justice sat on the
Court, and in which the justices cast recorded votes.
Table 6.7
Agreement Scores for Selected Core Cases Only
Agreement Scores Type of Case
By race
Black justices (2) 50% Civil rights, racial cases (6)
White justices (12) 66%
By gender
Women justices (2) 50% Gender rights claims (4)
Men justices (12) 70%
By religion
Jewish justices (2) 70% Religious cases (7)
Non-Jewish justices (12) 58%
Note: Agreement scores are reported for black, women, and Jewish Americans,
respectively. None of these results are significant at the .05-level.
Symbolic Representation and the Court 119
CONCLUSION
Court. Some symbolic nominees are quite aware that they did not rep-
resent their symbolic group, as witness Justice Brennans pro-choice
position on abortion (Leeds 1986: 79).
Third, some symbolic nominees are only very marginal members of
their group. In 1941, President Franklin Roosevelt (a Democrat) nomi-
nated Justice Harlan Fiske Stone (a Republican) to be chief justicea
widely acknowledged symbolic nomination (Abraham 1999: 176;
Mason 1956: 563568). Yet Roosevelt felt reassured that Stone had
voted to uphold New Deal legislation. Justice Clarence Thomas like-
wise symbolically represented black Americans, but had few ties to
organized black and civil rights groups, and many black groups
opposed his nomination (Perry and Abraham 1998). To some
observers, Justice Breyer was less clearly identified as Jewish than was
Ruth Bader Ginsburg (Perry and Abraham 1998).
Fourth, justices come to the Court with group ties, but also with a
commitment to particular methods of deciding cases that are little
related to social groups views on particular issues. For example, Justice
Scalia is often described as opposed to loose readings of congressional
intent and as favoring a theory of original intent (Brisbin 1997; Scalia
1989b). Whether such views will agree with the attitudes of Catholics,
Republicans, whites, or men on a given issue is unclear.
Fifth, the largely negative evidence for symbolic representation on
the Rehnquist, Burger, or Warren Courts does not necessarily mean
that there never was or could be stronger support for this model.
Indeed, symbolic representation may be both justice-specific and
time-specific. Denominational differences were probably more impor-
tant historically than they are today. Symbolic nominations may have
been more closely tied to a justices votes before the New Deal
realignment (Gallup and Castelli, 1987, 1989; Perry 1989, 1991).
Unfortunately, modern polling did not exist before the 1930s, and
that question must remain unanswered. Nor does this evidence deny
that a strong pattern of symbolic representation might occur in the
future - for example, when a disabled, gay or lesbian, Asian
American, Islamic American, or Hispanic American justice joins the
Court (Perry and Abraham 1998).
Finally, polling evidence on symbolic representation is admittedly
limited. For example, Justice Scalias minor fame as a symbolic nomi-
nee was not simply as a Catholic, but more particularly, as an Italian
Catholic. Polls do not reliably yield results so finely graded as Italian
Catholics, nor so fine as between Orthodox and Reform Jews. Many
nuances of symbolic representation cannot be adequately measured by
polling samples of six hundred to one thousand Americans.
Symbolic Representation and the Court 121
123
124 Public Opinion and the Rehnquist Court
from the post-decision debate. Positive poll shifts that occurred over
several years would mean that Court decisions find acceptance as they
are incorporated into American life. Positive poll shifts are the most
likely to occur if large numbers of Americans recognize that the Court
made a decision, correctly understand what the Court decided, and are
inclined to follow the Courts leadership.
There are sharp limits to how much Supreme Court decisions can
influence public opinion.4 The media heavily publicize only a handful
of decisions each year. Most decisions receive little or no press cover-
age. Only about a quarter of all Court decisions and very few denials of
certiorari receive any network television coverage (Davis 1994;
Franklin and Kosaki 1995; Larson and Tramont 1993; Slotnick and
Segal 1998; Spill and Oxley 2003). Further, press coverage is not
always favorable toward Court decisions (Clawson and Waltenburg
2003). Some Americans learn about decisions from word-of-mouth,
newspaper editorials, or specialized publications, but this is probably
rare (Franklin and Kosaki 1995; Vermeer 1993).
Factual Knowledge
Only about half of Americans can correctly describe even the Courts
highest-profile decisions. During the Rehnquist Court, pollsters wrote
forty-seven poll questions tapping the publics factual knowledge about
specific rulings, about the Supreme Court itself, or about individual jus-
tices.5 What does a review of these poll questions indicate?
Overall, the level of public knowledge varied widely. On twenty-
one closed-ended poll questions tapping factual knowledge about spe-
cific rulings, the percentage of correct answers ranged from a high of
78% to a low of 27%, with an average of 51% correct. Most of these
twenty-one poll questions tapped high-profile (or landmark) rulings,
such as the Miranda warning, school prayer, school integration, or
flag-burning rulings.6
As a comparison, the percentage of Americans giving correct
answers can be compared to pure random guessing. For instance, on a
closed-ended poll question with only two choices (such as a true-or-
false question), half (50%) of Americans could give a correct answer
simply through random guessing (assuming no one volunteered dont
know). If dont know is offered as an explicit choice, the percent-
age correct through pure random guessing would fall to 33.3%. By
this standard Americans are only modestly well informed about the
Courts landmark decisions. By pure random guessing alone, some
44% of Americans could give a correct answer on these poll ques-
Did the Rehnquist Court Influence Public Opinion? 125
favors all groups equally).12 This index is based on approval for the
Court as an institution, not on satisfaction with specific rulings.
Three major pollsters (Harris, NORC, and Gallup) repeatedly mea-
sure public confidence in the Supreme Court.13 These measures are each
based only a single poll question, not on a multiquestion index. Yet
these questions do have the advantage of being frequently asked over
long time periods. The Courts ratings can be also compared to those of
other political institutions.14
On the Harris and NORC/GSS confidence measures, the Rehnquist
Court always ranked higher than Congress or the executive branch, but
not always higher than the White House in the Harris Poll, or satis-
faction with the job a particular president is doing in the Gallup Poll.
The Courts ratings were also as stable or more stable over time than
were other institutions ratings.15 Figure 7.1 depicts the percentage of
Americans indicating giving clearly positive ratings (a great deal of
confidence) toward the Supreme Court since the 1970s, based on the
NORC/GSS ratings, along with ratings for Congress and the executive
branch. In Figure 7.1, the Rehnquist Court enjoyed roughly the same
ratings as did the earlier Burger Courtan average of 33% and 31%
favorable, respectively.16
Figure 7.1
Public confidence in the Supreme Court, the Executive Branch,
and Congress, NORC/GSS positive ratings
Did the Rehnquist Court Influence Public Opinion? 127
informed, about a decision (Hoekstra and Segal 1996; cf. Gibson 1989;
Mondak 1994).33
As a caveat, experimental results differ from real-world results for
three reasons. First, respondents in experiments are fully and recently
informed as to what the Court decided. However, on very few deci-
sions can as many as half of Americans correctly describe what the
Court decided. Most decisions receive so little media coverage that
barely a handful of Americans know of the Courts decision. Second,
most experiments measure opinion changes immediately after partici-
pants are informed about the Courts decision, and do not capture
how quickly the public forgets or changes their views. Third, few
experiments consider other influences on public opinion following a
ruling, such as media coverage or the praise or protests of interest
groups or public officials. Experiments that do consider these effects
report that additional information or criticism of the decision reduces
the Courts impact on public opinion (Mondak 1990, 1994). For all
these reasons, experiments probably exaggerate the Courts actual
influence on public opinion.34
Several studies examine the Courts influence using nationwide or
local surveys. The Courts highest profile rulings (such as its abortion
rulings) may raise public awareness, media attention (Flemming, Bohte,
and Wood 1997), and interest group commentary and criticism so
much that public opinion becomes polarized, rather than simply shift-
ing toward the Courts position (Franklin and Kosaki 1989; Unger
2003).35 The Court may more greatly impact public opinion when it
announces a first landmark ruling, rather than when it announces later
decisions in that same policy area (Johnson and Martin 1998). Some
studies examine polls in communities where a dispute originated.
Because of heightened media attention in these localities, decisions may
much more greatly affect local, rather than nationwide public opinion
(Hoekstra 2003; Hoekstra and Segal 1996).
To summarize: whether the Supreme Court can actually move
public opinion in favor of its decisions is unclear. The Rehnquist Court
was relatively popular, but by no means overwhelmingly so. Most deci-
sions receive little media attention. Certainly, the Rehnquist Court had
the opportunity to move public opinion toward its rulings, but did it, in
fact, do so?
The remainder of this chapter tests two linkage models between
Supreme Court decision-making and American public opinion, and
focuses on specific support for particular rulings, rather than diffuse
support (Easton 1965). Simply put, did the Rehnquist Courts rulings,
once announced, actually become more popular with the public?
Did the Rehnquist Court Influence Public Opinion? 131
Figure 7.2
Short-term poll shifts during the Rehnquist Court
Table 7.1
Explanations for Short-Term and Long-Term Poll Shifts
Short-Term Long-Term
Average Poll Shift Average Poll Shift
Unanimous decisions 6.3% (4) 2.0% (9)
Non-unanimous decisions 1.8% (12) .8% (9)
Full, written decisions 1.8% (12) .3% (11)
Others 6.3% (4)* 7.0% (1)
Liberal decisions 4.0% (7) .6% (5)
Conservative decisions 2.1% (9) .1% (7)
Activist decisions 2.4% (8) .5% (4)
Restraint decisions 3.5% (8) .8% (8)
Racial decisions 2.0% (1) 7.0% (1)
Nonracial decisions 3.0% (15) 1.0% (11)
Criminal rights decisions 10.0% (1) 7.0% (1)
Noncriminal rights decisions 2.5% (15) 1.0% (11)
Sexual and abortion decisions 3.0% (10) 1.3% (7)
Nonsexual and abortion decisions 2.8% (6) 1.0% (5)
Pearson product-moment
correlations
Year of decision .09 (16) .31 (12)
Media coverage .37 (14) .03 (12)
Time lapse (in months) .24 (16) .24 (12)
Initial poll support .03 (16) .13 (12)
Number of dissents .27 (12) .45 (11)
Note: The four unanimous short-term poll shifts are all cert denials.
Numbers in parentheses are the numbers of decisions involved. * = stat. signif.
at .1.
Figure 7.3
Long-term poll shifts during the Rehnquist Court
CONCLUSION
The evidence is clear and consistent. The Rehnquist Court did not legit-
imize its rulings in the sense of winning over public opinion. Previous
Courts since the mid-1930s demonstrated little ability to move public
opinion. The Rehnquist Court demonstrated even less ability to move
public opinion behind its decisions. Average poll shifts for the
Rehnquist Courts rulings were neutral to slightly negative, either con-
sidering pre- to post-decision poll shifts or post-decision poll shifts.
These results may be unexpected. The Rehnquist Courts approval
ratings were stable and similar to those of past Courts. There was no
sharp or steady decline in the Rehnquist Courts approval ratings.
Further, special surveys and experiments show that the Supreme Court
has at least the potential to move public opinion toward its rulings. Yet
by the available, albeit limited polling evidence, the Rehnquist Courts
rulings actually lost a slight amount of public support. Why this
occurred is puzzling, and while no definitive answer can be offered, two
suggestions may be put forth.
First, it is unlikely that these results occurred simply because these
poll questions were mostly on criminal rights, social, or racial issues
Did the Rehnquist Court Influence Public Opinion? 137
139
140 Public Opinion and the Rehnquist Court
trimester standard for abortions. At least in the justices own views, this
situation is not uncommon. During the Rehnquist Court, on the aver-
age, about once a term a justice (usually writing in dissent) explicitly
accused other justices (usually those in the majority) of overruling a
decision sub silentiothat is, abandoning one or more precedents with-
out explicitly saying so. Many law journal articles argue that the
Supreme Court, as well as lower federal or state courts, overrules prece-
dents sub silentio.7 The exact point at which a precedent has become so
qualified that it should be considered as failing the test of time is diffi-
cult to determine, and an eitheror classification may inevitably seem
subjective. However, if the standard for failing the test of time is that a
decision loses its practical effect, then the erosion of precedent and
overrulings sub silentio must be considered.
Some decisions lose their practical effect when a president,
Congress, or an agency abandons a policy previously approved by the
Court (Posner 2005: 42). Typically, these instances involve judicial
restraintin that the Court upheld an executive, congressional, or an
agency decision, but, even so, the executive, Congress, or agency later
changed the policy (for whatever reasons), thereby leaving the Supreme
Court decision without any practical effect. Political scientists have not
offered any counts of these instances, but they may well be numerous.
In the 111 Rehnquist Court decisions examined below, examples
include the so-called gag rule on abortion counseling; the ban on the
abortion pill RU-486; and Congresss decision not to renew the
Independent Counsel Act.
To these five ways in which a decision can fail the test of time
might be added a sixth: the decision is simply widely ignored or evaded.
These instances are the most difficult to quantify.8 The Warren Courts
school prayer rulings were widely ignored. Congresss continued use of
the legislative veto is another example, despite the Courts disapproval
in Immigration and Naturalization Service v. Chadha (1983) (Fisher
1993). Historically, a well-known example was President Andrew
Jacksons open disdain for the Marshall Courts Worcester v. Georgia
(1832) ruling in a dispute between the Cherokee Indians and the state
of Georgia (Abraham 1998:370).9
Many Supreme Court decisions eventually fail the test of time.
Some decisions do so very quickly. For example, in Payne v. Tennessee
(1991), a 63 majority explicitly overturned a 54 decision in Booth v.
Maryland (1987) and a 54 decision in South Carolina v. Gathers
(1989), both barring a victim impact statement at a capital sentencing
hearing. Other decisions fail the test of time only after a much longer
time lag. The longest time lag for the Court overturning one of its own
142 Public Opinion and the Rehnquist Court
Whether or not Supreme Court decisions prevail over time may depend
on several variablesamong them, the Courts own behavior in
announcing the decision, the type of issue involved, the level of public
opinion support for a decision, and the passage of time itself.12 Each of
these four explanations is briefly reviewed below, and then tested, first
with bivariate data, and then in a statistical model.
Public Opinion and the Test of Time 143
laws and policies, however, past research indicates that judicial activist
decisions more often prevail (Marshall 1989).
Another explanation is whether or not the decision is a full, writ-
ten opinion. As several justices argue, by handing down a full, written
opinion, the Court speaks with greater finality than in a denial of cer-
tiorari or a denial of a stay. Full, written and per curiam opinions are
predicted to prevail more often than denials of certiorari or denials of
a stay.
Two other explanations are tested. In past research (Ignagni and
Meernik 1994, Meernik and Ignagni 1995; cf., Lindquist and Yalof
2001; Maveety, Turner, and Way 2004; Meernik and Ignagni 1997;
Solomine and Walker 1992), the extent of interest group interest in a
ruling is linked to the likelihood that Congress will react to or overturn
a decision. The total number of interest group amici filed, and the
number of interest group amici filed for either the winning or the losing
side, and the number of losing minus winning amici briefs filed were
compared to whether or not the decision prevailed. The greater the
interest group involvement, the less likely is a decision predicted to pre-
vail. As before, only per curiam and full, written opinions are included
in this test.
Finally, Supreme Court decisions are predicted to fail the test of
time more frequently if the federal government (represented by either
the solicitor general or a federal agency) lost, either as a direct party or
in an amicus brief (Eskridge 1991a, Meernik and Ignagni 1997). Only
per curiam and full, written opinions are examined for this test.
new legislation, publish and approve a new agency rule, or pass a con-
stitutional amendment overturning a Supreme Court decision.19 Here,
all 111 Rehnquist Court decisions are counted with the time lag (in
years) from the original decision through the end of the Rehnquist
Court (the 2004/2005 term).
DATA ANALYSIS
Table 8.1 lists the percent of Rehnquist Court rulings that prevailed
(through its final 2004/2005 term), broken down by the hypotheses
above. Although few results in Table 8.1 reach statistical significance,
most results are in the expected direction. Unanimous decisions, core
First Amendment decisions, recent decisions, and decisions consistent
148 Public Opinion and the Rehnquist Court
with the polls all prevailed more often than decisions that were not.
Several early Rehnquist Court decisions have already failed the test of
time, while more recent decisions, as yet, show no such pattern.
Table 8.1
Percentage of Rehnquist Court Decisions Classified as Prevailing
% Prevailed Number of Decisions
Overall results 95% 111
By unanimity
Unanimous decisions 100% 17
Nonunanimous decisions 91% 67
By ideology
Liberal decisions 95% 42
Unclear ideology 67% 3
Conservative decisions 96% 66
By federal-level judicial activism
Activist decisions 100% 13
Restraint decisions 88% 25
By state-level judicial activism
Activist decisions 96% 28
Restraint decisions 96% 46
By outcome, per federal
government position
Federal government won 98% 40
Federal government not involved 87% 31
Federal government lost 94% 17
By type of decision
Full, written and per curiam
decisions 93% 88
All others 100% 23
By economic cases
Economic cases 100% 17
Non-economic cases 94% 94
By fundamental freedoms cases
Fundamental freedoms cases 95% 79
Non-fundamental freedoms cases 94% 32
By First Amendment cases
Core First Amendment claim raised 100% 30
No such claim raised 93% 81
By public opinion*
Consistent with public opinion 99% 68
Unclear decisions 100% 4
Inconsistent with public opinion 87% 39
Public Opinion and the Test of Time 149
Figure 8.1
Probability that a Rehnquist Cort decision will survive, by whether
the decision is consistent with public opinion or not
Years
CONCLUSION
time, most decisions fail the test of time. Of chief interest here, unpopu-
lar decisions fail at a much faster rate than do popular decisions.
The test-of-time model should be included in the linkage model
between public opinion and Supreme Court policy-making. Only two
variables significantly predict whether a decision will meet the test of
time, both for the 19351986 era and for the Rehnquist Court: the pas-
sage of time itself, and whether or not a decision is consistent with
public opinion. Other explanations for how long Supreme Court deci-
sions survive are time-bound. The justices unanimity, a decisions lib-
eral-conservative ideology, or a decisions visibility were strongly
related to a decisions longevity prior to, but not during the Rehnquist
Court. Regrettably, since modern polls are not available prior to the
1930s, the impact of public opinion cannot be measured before the
1930s. As another caveat, the half-life estimates for poll-matched deci-
sions may differ from decisions for which no polls are available.26
In short, American public opinion has a second chance at
Supreme Court decisions. Unpopular decisions last several fewer years
than do popular decisions. Accordingly, the test-of-time model is
included in chapter nines model summarizing the ties between
American public opinion and the U.S. Supreme Court.
CHAPTER NINE
153
154 Public Opinion and the Rehnquist Court
If the Rehnquist Court was, like the five earlier Courts, a majoritarian
Court, what best explains this pattern? Chapter one introduced and
outlined fifteen linkage models to explain the ties between American
public opinion and Supreme Court decision-making. Individually, each
model might seem plausible, but the real question is, does it hold up
empirically? Chapters two through eight tested each model. Some
proved to be good explanatory models, while others failed to win any
support at all. A few linkages that worked well in earlier years lost their
An Empirical Model of Representation 155
sion polls show that Rehnquist Court decisions, once announced, usu-
ally lost popularity. Post-decision polls point to the same conclusion.
Prior to the Rehnquist Court, Supreme Court decisions showed at least
modest gains in popularity after the decision was announced. During
the Rehnquist Court, however, those modest positive poll gains
dropped into negative numbers. Arguably, only over very long time
periods do Supreme Court decisions now actually gain in public
approval. The modern Court never had much ability to legitimize its
decisions, in the sense of winning public approval. During the last two
decades, the Court lost whatever persuasive ability that it previously
had with the public. Exactly why this occurred is somewhat puzzling,
since the Rehnquist Court was not an unpopular Court, and its deci-
sions agreed with public opinion as often as did earlier Courts. Even so,
the weight of the evidence is that the Supreme Court no longer can win
over public opinion by announcing decisions.
Robert Dahls realignment model does little to explain the ties
between public opinion and Supreme Court decision-making. In part,
this is because realignment cycles are often hard to identify, and many
justices are confirmed, serve, and then retire or die between realignment
periods. In part, this is because Dahls argument is more about the rela-
tionship between Congress, the White House, and the Court than
about the relationship between public opinion and the Court. In part,
lags in judicial appointments make it difficult to compare a group of
pre-realignment, versus post-realignment justices. Where comparisons
are available, the evidence is, at best, mixed. Republican justices
appointed prior to the 1930s realignment actually voted slightly more,
not less often consistently with public opinion than did the justices
appointed thereafter, or than the twelve justices appointed by
Presidents Roosevelt and Truman. If the mid-1980s are considered to
be a realignment period, then the evidence for the realignment thesis is
mixed. If the mid-1990s are taken as a realignment period, then no evi-
dence so far appears for the realignment thesis. While Dahls realign-
ment thesis remains interesting, it does not explain the relationship
between Supreme Court decision-making and American public opinion.
Although the evidence for some linkage models was mixed or negative,
more support appears for other models. In some cases, part of a linkage
model showed support, while in a few cases, the entire linkage model
showed support.
158 Public Opinion and the Rehnquist Court
whether any these changes will actually occur in the future remains to
be seen.
Finally, the test-of-time linkage was a very strong one, both before
and during the Rehnquist Court. Decisions that were unpopular, when
announced, do not endure as long as those with greater public sup-
port. Exactly how decisions fail the test of time can vary. Some deci-
sions are overturned by the Supreme Court itself, others by Congress
or the president or the agencies, or, in very rare instances, by a consti-
tutional amendment. Since the 1930s, popular Supreme Court deci-
sions have prevailed for several years longer than have unpopular
decisions. During the five decades from the mid-1930s until the
Rehnquist Court, the difference was about twenty-nine years. During
the Rehnquist Courts nearly two decades, the difference was about
seven years. Public opinion clearly gets a second chance at Supreme
Court decisions.
To summarize the evidence: the Rehnquist Courts relationship to
American public opinion was complex, but heavily rested on three ties:
the context of a controversy, the justices themselves, and the Courts cur-
rent norms. First, when public opinion was closely focused on an issue,
when nearly all Americans expressed an opinion on an issue, and when
the solicitor generals position agreed with public opinion, Rehnquist
Court decisions typically reflected public opinion. Rehnquist Court deci-
sions that received widespread public support also lasted longer than
unpopular decisions. Second, justices who moved between regions before
coming to the Court; justices with elective experience or experience in
top, nonjudicial positions; justices without prior judicial experience; less
senior justices; the chief justice; and the Courts intellectual leaders most
often cast votes that agreed with majority public opinion. Third, the
norm of judicial deference to elected policy-makers, and the norm of poll
correction against the lower courts both fostered representation. The
norm of a smaller docket of full, written decisions did not.
At least since the 1930s, most Supreme Court decisions agreed with
majority public opinion. Whether the Supreme Court will continue to
be an essentially majoritarian institution in the future seems likely, but
by no means guaranteed. Some trends, such as longer tenure for the jus-
tices, or the now-complete ascendancy of federal appeals court judges
as justices, suggest that future Courts may be much less majoritarian
than were past Courts since the 1930s. Whether these trends are offset
by prevailing public opinion, by other judicial experiences and roles,
and by Court norms that foster representation will decide whether the
future Supreme Court continues to reflect American public opinion
more often than not.
APPENDIX ONE
Poll-to-Ruling Matches
163
164 Public Opinion and the Rehnquist Court
List of Cases
171
172 Public Opinion and the Rehnquist Court
CHAPTER ONE
181
182 Notes to Chapter 1
24. For an early instance of this argument, see ONeil v. Vermont (1892),
in which three justices, in dissent, argued that a heavy fine or a fifty-five-year
hard-labor sentence for illegal liquor sales was cruel and unusual punishment.
25. This theory might seem to be the most likely to elicit mentions of spe-
cific poll questions. However, a large majority of such decisions do not report
specific poll questions, but rather rely on indirect evidence of public opinion,
such as state law, jury decisions, or even the positions of professional associa-
tions or religious groups (Robinson 2004). In part, this may be because polling
evidence is seldom available or presented in litigants briefs or in amicus briefs.
For an exception, see the survey of poll questions on the death penalty for men-
tally retarded murderers, presented in Atkins v. Virginia (2002), originally from
a brief submitted in another death penalty case, McCarver v. North Carolina
(2001). In Roper v. Simmons (2005) a 54 majority barred the death penalty
for convicted murderers who were under eighteen years old when the crime was
committed. In Roper the majority relied on objective indicators of attitudes,
particularly state laws, the trend in state laws, and the behavior of juries; no
polling evidence was reported in the majority, concurring, or dissenting opin-
ions. This third theorys growing popularity may inspire litigants to report sup-
portive poll questions, or even to commission polls, but this does not now
appear to be common.
26. A few rulings cite international public opinion, or at least opinion in
Anglo-European nations that share common cultural ties to the United States.
Opinions such as Atkins v. Virginia (2002) or Roper v. Simmons (2005) come
close to arguing that public opinion abroad is relevant to the standard of evolv-
ing public opinion. To date, such views rely more upon statutes and courtroom
practices than upon foreign polls, however. Dissenting justices vigorously criti-
cized the view that overseas practices and attitudes should affect Supreme
Court decisions; see Justice Scalias dissent in Atkins and Roper. See also the
exchange between justices in Knight v. Florida (1999). For a review of this
argument, see Comment (2005); Jackson (2005); and Young (2005).
27. Weems v. U.S. (1910) held that the Eighth Amendments ban on cruel
and unusual punishment is not fastened to the obsolete, but may acquire
meaning as public opinion becomes enlightened by a humane justice.
28. Trop v. Dulles (1957) held that expatriation for military desertion was
inconsistent with the evolving standards of decency that mark the progress of
a maturing society.
29. Well-known examples include death penalty cases, e.g., Furman v.
Georgia (1972), Gregg v. Georgia (1976), Roberts v. Louisiana (1976, 1977),
and Coker v. Georgia (1977).
30. Dickerson v. U.S. (2000), at 443.
31. At 656, in dissent, arguing against a death penalty sentence to be car-
ried out by using cyanide gas.
Notes to Chapter 1 185
32. At 331335, discounting poll evidence that the death penalty for men-
tally retarded convicted murderers is unpopular, and arguing that juries and
statutes are better indicators of contemporary public opinion.
33. Thompson v. Oklahoma (1988), at 822, 849858, struck down a
death penalty sentence for a convicted murderer who was fifteen years old at
the time of the crime, partly on grounds that such a sentence did, or at least
might offend evolving standards of decency. See also Justice Stevenss dissents
in Patterson v. Texas (2003) and In re Stanford (2002) concerning the death
penalty for convicted murderers who were under age eighteen at the time of
the crime.
34. At 2126, in dissent, arguing that hanging no longer finds public accep-
tance.
35. OConnor also argued that Supreme Court justices, unlike elected
politicians, could not gain back legitimacy by winning at the polls, at 868869.
As a result, popular support, or legitimacy, once lost, would be very difficult to
recover.
36. U.S. v Olano (1993), at 732; see also Mickens v. Taylor (2002). This
rule dates back to U.S. v. Atkinson (1936), at 160: In exceptional circum-
stances, especially in criminal cases, appellate courts, in the public interest,
may, of their own motion, notice errors to which no exception has been taken,
if the errors are obvious or if they otherwise seriously affect the fairness,
integrity or public reputation of judicial proceedings. In Dretke v. Haley
(2004), Justice Kennedy, dissenting, made a similar argument regarding execu-
tive clemency for convicted felons who were actually innocent. For another dis-
cussion, see Stewart (2003).
37. Jones v. U.S. (1999), at 388389, concerning the Federal Death
Penalty Act; and Neder v. U.S. (1999), at 9, 18, 34. See also the dissenting
opinion in the stop-and-frisk ruling in Illinois v. Wardlow (2000), at 127, or
Justice Ginsburgs opinion in Banks v. Dretke (2004) concerning disclosure of
exculpatory evidence in a murder case.
38. Buckley v. American Constitutional Law Foundation (1999), at 647,
upholding a restriction on campaign spending to avoid the appearance of cor-
ruption; and Nixon v. Shrink Missouri Government PAC (2000), at 383,
390391, allowing a restriction on PAC donations to a candidate to avoid
corruption or the perception of corruption. See also McConnell v. Federal
Election Commission (2003) and Federal Election Commission v. Colorado
Republican Federal Campaign Committee (2001). This argument dates back to
the landmark decision on campaign finance, Buckley v Valeo (1976), at 2526.
39. Cleveland v. U.S. (2000), at 371.
40. Crandon v. U.S. (1989), and U.S. v. National Treasury Employees
Union (1995), at 501, in dissent.
186 Notes to Chapter 2
CHAPTER TWO
that public opinion had a direct impact on Supreme Court decisions from the
early 1950s to about 1980, roughly at a lag of two to four years, but found no
evidence that the Courts rulings themselves affected the public mood.
13. Two-thirds of changes in the public mood are felt within 2.3 years at
the Supreme Court, and virtually all the impact of changes in the public mood
are felt within about seven years, according to Stimson, MacKuen, and Erikson
(1995: 558559).
14. For examples in Germany or Canada, see Brettschneider (1996) or
Petry (1999). For a study of the U.S. Supreme Courts abortion policies, see
Vitiello (1999).
15. During the Rehnquist Court this represents about 5% of all per
curiam and full, written opinions.
16. Because the pairwise method does not require that poll items be
repeated, it also allows an analysis going back to the origin of modern polling
during the mid-1930s. Unfortunately, the practice of repeating identically
worded poll items was uncommon until the 1950s. The public mood index
(Stimson 1999) begins with data in the 1950s, as do other trend studies (Devine
1970). For studies tracking repeat poll items before the 1950s, see Page and
Shapiro (1992) and Davis and Smith (1980).
17. When the phrase Supreme Court appears in a poll question describ-
ing a specific decision, it is typically used to describe a recently decided case, for
example, (T)he Supreme Court recently decided. . . .
18. In computing the poll margins, the poll question closest in time to the
decision was usedexcept in the case of inconsistent poll results, for which all
available polls were averaged to compute the poll margin.
19. Sources other than U.S. Reports or Supreme Court Reporter or slip
opinions were especially useful in identifying matches involving denials of cer-
tiorari, denials of applications for a stay, or denials of a writ of habeas
corpusall of which can seldom be identified from reading U.S. Reports, the
Supreme Court Reporter, or slip opinions.
20. Princeton Survey Research Associates, 6/2930/2000.
21. Gallup Poll, 8/1213/1997.
22. Princeton Survey Research Associates, 6/2930/2000.
23. Bush v. Gore (2000) is the Rehnquist Courts most controversial,
highly publicized unclear decision, due to multiple polls with closely divided
and inconsistent results.
24. Thus, Seling v. Young (2000) was not counted as an additional match,
since Kansas v. Hendricks (1997) was previously counted on the issue of civil
incarceration of sex offenders.
Notes to Chapter 2 189
25. In this case, the carrying and using offense was invoked for transport-
ing the firearm in a locked glove compartment or the trunk of a car during a
drug trafficking offense.
26. However, the Rehnquist Court never so ruled; see Seling v. Young
(2001).
27. Justice Stevens wrote most often on the meaning of cert denials; see
Singleton v. Commissioner of Internal Revenue, 439 U.S. 940 (1978). For a
similar, earlier argument, see Justice Frankfurters views in Maryland v.
Baltimore Radio Show, 338 U.S. 912 (1950).
28. In DeBoer v. Schmidt (1993), for example, Justices Blackmun and
OConnor dissented from the denial of an application for stay, but did not
clearly indicate how they would have voted on the merits of the case.
29. The death penalty appeal of Texas inmate Karla Faye Tucker came to
the Court as an application for a stay of execution, temporary restraining
order, and preliminary injunction, in In Re Tucker (1998), Tucker v. Texas
(1998), and Tucker v. Texas Board of Pardons and Paroles (1998). Ms.
Tuckers appeals were denied as a petition for writ of habeas corpus or a writ
of certiorari, and she was then executed.
30. The two justices often dissented from denials of certiorari in death
penalty cases, writing that Adhering to our views that the death penalty is in
all circumstances cruel and unusual punishment prohibited by the Eighth and
Fourteenth Amendments . . . we would grant certiorari and vacate the death sen-
tences in these cases. See, e.g., Adams v. Florida (1978).
31. Justices Breyer and Stevens used dissents from denials of certiorari to
describe their views of lengthy delays in death penalty appeals; see Lackey v.
Texas (1995); Elledge v. Florida (1998); or the debate among Justices Stevens,
Thomas, and Breyer in Knight v. Florida (1999). See also Justice Stevenss com-
ments in Barber v. Tennessee (1995), or the debate between justices in Coleman
v. Balkcom (1981) or McCray v. New York (1983), all cert denials. Justice
Scalia, Thomas, and Rehnquists dissent from denial of certiorari in
Tangipahoa Parish Board of Education v. Freiler (2000) was considered suffi-
ciently clear to indicate how the three justices would have voted.
32. These eighty-eight full, written decisions were adjusted to the figures
reported in Epstein et al. (2003: 8085) for five major (combined) issues: crim-
inal cases, economic cases, federalism and intergovernmental relations cases,
civil liberties cases, and miscellaneous cases.
33. If these figures are reweighted against the number of full, written deci-
sions reported in the annual reports of the Harvard Law Review, the percent-
age of consistent, inconsistent, and unclear decisions would be 64%, 32%, and
4%, respectively.
34. Gallup Poll, 8/1213/1997.
190 Notes to Chapter 2
35. For the original, uncollapsed, but absolute poll margins, the point-bis-
erial correlation is an insignificant .07.
36. Justice Black and Douglass dissent in Dennis v. U.S. (1951), at 580,
describes the crisis-times thesis: Public opinion being what it is now, few will
protest the conviction of these Communist petitioners. There is hope, however,
that in calmer times, when present pressures, passions, and fears subside, this
or some later Court will restore the First Amendment liberties to the high pre-
ferred place where they belong in a free society.
37. If any of the five top concerns in the Gallup Polls most important
problem question were used, the results would also be in the predicted direc-
tion, but statistically insignificant. The Rehnquist Court was consistent with
public opinion in 69% of decisions involving one of the top five national con-
cerns, versus 59% of cases in which the issue raised was not.
38. Chapter three discusses at greater length the Rehnquist Courts chang-
ing theories of federalism and intergovernmental relations.
39. For the history of this doctrine and a description of the Carolene
Products lawsuit, see Abraham (1982), Miller (1987), Rogers (1999), and
Yackle (1994).
40. This argument also assumes that local, state, or federal laws chal-
lenged at the Supreme Court restrict, not support a particular groups claims,
and that nationwide public opinion also opposes the groups claim.
41. When public opinion was politically conservative on these claims and,
hence, opposed the claim, the Rehnquist Court agreed with public opinion
68% of the time, versus supported the claim only 32% of the time. By contrast,
when public opinion was politically liberal, and, hence, supported the claim,
the Rehnquist Court agreed with public opinion 56% (as well as the fundamen-
tal freedoms claims) of the time. Overall, public opinion was conservative
(hence, opposed to the claim) about twice as often (69% versus 31% of the
time) as it was liberal (or supportive of the claim) during the Rehnquist Court.
42. Chapter seven reviews these studies at length.
43. Testing another possible polling artifact, the average percentage of
poll respondents who agreed with the Courts decision was also higher (55%,
versus 47%) when the matching poll did not mention the Supreme Court, com-
pared to when it did.
44. The terms liberal and conservative are defined according to the
meaning in Rathjen and Spaeth (1979).
45. The Supreme Courts docket is now nearly completely discretionary,
since Congress in 1988 virtually eliminated the Courts mandatory docket
(Baum 1998a).
46. Friedman (2004) and Merrill (2003) put the cutting point slightly
later, in 2004/2005 term.
Notes to Chapter 3 191
CHAPTER THREE
model, but only 38% of the time under a pure judicial activism model. For
these five Courts, this pattern would also result if only considering federal laws
and policies (70% actually consistent, versus 68% under pure judicial restraint,
but only 32% under pure judicial activism), or only state and local laws and
policies (59% actually consistent, versus 56% under pure judicial restraint, but
only 41% under pure judicial activism).
21. By type of decision, some 62% percent of the Rehnquist Courts fun-
damental freedoms decisions agreed with public opinion, a figure that would
have increased to 73% under pure judicial restraint. For economic cases the
actual figure was 53% consistent, versus 65% under pure judicial restraint.
22. The Harvard Law Review figures include a few per curiam opinions
that have sufficiently lengthy legal reasoning to be counted as a full, written
opinion. The Supreme Court Compendium (Epstein 2003) puts the number of
signed opinions at 145 during the 1986/1987 term, falling steadily to 74 in the
1999 term and 76 in the 2001 term.
23. According to the Harvard Law Review, there were 6,590 cases denied,
dismissed, or withdrawn during the final (2004/2005) term of the Rehnquist
Court.
CHAPTER FOUR
1985: 151156), but some groups pursue a lawsuit despite potentially negative
consequences (Lawrence 1990).
6. Because many individual groups took only a few positions, this coding
is for types of groups, not individual groups. The twelve types of groups (and
better-known examples in each category) include: (1) civil liberties, free speech,
and media (ACLU, People for the American Way); (2) states and local govern-
ments (typically state attorneys general or individual cities); (3) pro-civil rights
(NAACP, MALDEF); (4) education (NEA, National School Board Association,
AAUP); (5) corporations, businesses, and trade associations (Chamber of
Commerce, individual corporations); (6) bar associations (ABA); (7) labor
unions (AFL-CIO); (8) feminist, pro-gender equality, and privacy (Planned
Parenthood, NOW); (9) liberal religious (BNai BRith, National Council of
Churches, American Jewish Congress); (10) Catholic (U.S. Catholic
Conference); (11) conservative (NRA, Concerned Women for America, Family
Defense Council, Eagle Forum LDEF); (12) pro-law enforcement (Americans
for Effective Law Enforcement, Fraternal Order of Police).
A group was counted as taking a position either by being directly involved
as a party in a case, or (much more often) by filing an amicus brief. If different
groups in the same category took opposing positions (e.g., when state govern-
ments, typically represented by their respective attorneys general, took different
positions in amicus briefs), no position was coded for the group. Different
groups in the same category seldom took different positions, and intragroup
conflict occurred in less than three percent of all cases.
As a caveat, state, counties, and cities are not usually viewed as interest
groups, although their associations might be. Because units of state and local
governments and their associations often participated, any of these were
counted in the category of state and local governments. States, counties, and
cities participated as a direct party or as an amicus much more often than did
associations of these governments.
Two types of interest groups (states/counties/cities and legal groups) filed
enough lawsuits or amicus briefs to be included here, but not in a previous
study (Marshall 1989). Conservative groups and law enforcement groups are
broken out separately here, since both have become much more active since the
early 1980s.
7. From the 1950s through the mid-1980s, the solicitor general won
75% of the time when filing an amicus brief (Segal 1988). This rates held up
even when controlling for the lower courts decision and case facts (Segal and
Reedy 1988), new appointments to the Supreme Court (Segal 1990), or the
opposing attorneys experience (McGuire 1993, 1995). During the early
Rehnquist Court, the solicitor general averaged 66% success (through the 1996
term) and the federal government averaged 61% success on all cases as a direct
party (through the 2001 term). By contrast, states averaged 56% success
through the 2001 term (Epstein et al. 2003). By comparison, the solicitor gen-
Notes to Chapter 4 195
eral won 69% of decisions in this book, versus 58% for state and local govern-
mentsfigures very close to those in Epstein (2003).
8. These figures exclude the few cases in which public opinion itself was
unclearthat is, cases of inconsistent or closely divided (at the .05 level) poll
results.
9. Catholic and pro-life groups alone agreed with American public opin-
ion more often than did the federal government, doing so in 86% of their
twenty-two positions. Before the Rehnquist Court, however, Catholic and pro-
life groups only agreed with public opinion 50% of the time (Marshall 1989:
96).
10. Stated otherwise, American public opinion won 67% of the time, on
the average, when it agreed with a groups position. Public opinion won 59%
of the time, on the average, when it disagreed with a groups position.
11. These twelve types of groups took 104 positions agreeing with, but
112 positions disagreeing with the solicitor general. In the remaining instances
either the group or the solicitor general (or both) took no position.
12. From 1935 until 1986, the federal government was also very success-
ful, whether or not its position agreed with public opinion. When the federal
government was involved as a party or as an amicus, it won 76% of the time if
its position agreed with public opinion, versus 63% of the time when its posi-
tion disagreed with public opinion. For states, counties, and cities, the percent-
age of wins were 58% and 46%, respectively.
13. These groups positions were ideologically liberal over 96% of the
time; the very rare exceptions include the ACLUs conservative position in
Hill v. Colorado (2000) and McConnell v. Federal Election Commission
(2003).
14. The relatively small sample of full, written and per curiam decisions
and the large number of interest groups (twelve, plus the solicitor general) dic-
tated that group positions be entered one by one, rather than jointly.
15. The equation is .122 + .758 (solicitor generals position, with a stan-
dard error of .327, significant at .02). 2LLR = 108.7329; Cox & Snell R-2 =
.06; Nagelkerke R-2 = .09. The number of correctly predicted decisions rises
from 60% to 66%, or an improvement over the base rate of 10%.
16. This figure excludes the few cases with inconsistent or evenly divided
polls.
17. As a comparison, this is roughly the impact of the solicitor generals
filing an amicus on behalf of a respondent; see Kearney and Merrill (2000:
804810) who also report that the ACLU, the AFL-CIO, and the states enjoy
modest success in their amicus filings.
196 Notes to Chapter 5
CHAPTER 5
federal courts, and appropriating funds for a new Supreme Court building, see
White (1976: 200206) and Baum (1998a: 1415).
22. Prior to the Rehnquist Court, Justice Brennan ranked about the
middle of justices in agreeing with public opinion (Marshall 1989: 106). His
earlier 55% rating fell to 35% during the Rehnquist Court.
23. A composite ranking of the justices (Epstein et al. 1992) yielded no
significant results, at least since the mid-1930s. The pearson product-moment
correlation between a composite ranking and the percentage of consistent votes
was insignificant. If justices rated as failures are compared to the remaining
justices, then low-ranked justices are only a little less likely to vote consistently
with public opinion, compared to other justices. The figures are 55% or 56%
consistent for failures, compared to 60% for other justices, broken down by
the Blaustein and Mersky ranking or the Schwartz ranking, respectively
(Abraham 1999: 369372; Marshall 1989: 106). As a caveat, none of the
Rehnquist Courts fourteen justices are rated as failures.
24. Baum (1998a:135) lists Justices Scalia, Souter, Ginsburg and Breyer as
the most assertive on the current Court at asking questions. If these four jus-
tices are compared to the remaining five justices at that time (Rehnquist,
Stevens, OConnor, Kennedy, and Thomas) the percent consistent with public
opinion would be 55% versus 58%, respectively.
25. By another test of intellectual leadership, some justices publish much
more in law journals or in book form than do other justices. Four of the
Rehnquist Courts fourteen justices published two or more books (through-
out their entire lives, through fall 2005), and can be considered as publishing
leaders. These four justices (Rehnquist, Scalia, OConnor, and Breyer) agreed
with majority public opinion 61% of the time (over their entire time on the
Court), versus 52% for the remaining ten justices, a difference significant at
the .01 level.
26. This variable is computed by averaging the number of significant
opinions (Epstein et al. 2003). Those with an average of 1.0 or more significant
opinion, per term, were scored as above average; those with fewer were scored
as below average, both for the justices entire careers (through 1996) or solely
for the Rehnquist Court.
27. Justice Scalia was 75% consistent during his first four years, versus
51% in later yearsan early term effect of +24%. For Justices Kennedy,
Souter, Thomas, Ginsburg, and Breyer, the early term effects would be +3%,
+6%, +21, 4%, and 1%, respectively.
28. No such effect appears prior to the Rehnquist Court, however
(Marshall 1989: 117). Since new justices are typically the most precedent-ori-
ented (Hurwitz and Stefko 2004), these results are unexpected. For a review of
freshman effects, see Hagle (1993) and Wood et al. (1998).
Notes to Chapter 5 199
29. For Scalia, Kennedy, Thomas, and Breyer the figures were +18%,
+1%, +12% and +5%, and for Justices Souter and Ginsburg, 1% and 4%,
respectively.
30. Replacement effects occurred for five of the six newly appointed jus-
tices, all except Ginsburg. The size of these effects varies considerably; by pair-
ings, replacement effects are +14% (Scalia for Burger), +12% (Kennedy for
Powell), +30% (Souter for Brennan), +36% (Thomas for Marshall), 27%
(Ginsburg for White), and +4% (Breyer for Blackmun).
31. Excluding the justices serving on the Rehnquist Court in 2005, thirty-
one of ninety-eight justices served twenty years or more. The average length of
service varied from ten years (those appointed during the 1700s) to twenty
years (those appointed from 1800 to 1850).
32. These figures also include a justices service before the Rehnquist
Court.
33. Justices Brennan, Marshall, Blackmun, and OConnor dropped in the
frequency with which their votes agreed with public opinion (20%, 18%,
32%, and 4%, respectively); Justices Whites level of consistency rose (by
4%); Justices Rehnquist and Stevens figures did not change.
34. V. O. Keys three seminal articles (1952, 1955, 1959) describe realign-
ments as critical historical events that destabilize an existing party system and
create a new balance between the political parties. The Great Depression and
the New Deal period between 1929 and 1940 are usually cited as a dramatic
(or critical) realignment that made the Democratic Party the majority party
in presidential and congressional elections for the next three decades. Many
political scientists consider realignments to have occurred about 1828 to 1830
(or, alternatively, about 1836 or 1838) (Nardulli 1995; Silbey 1991), 1856 to
1860, 1896, and 1928 to 1932. Gates (1992) argues that the Court behaves
differently during and immediately before realignments. For recent critiques,
see Aldrich (1995), Carmines and Stimson (1989), Edsall and Edsall (1992),
Mayhew (2002), Nardulli (1995, Paulson (2000), Rosenof (2003), and Shafer
(1991).
35. Some state party systems can survive national realignments for long
time periods (Gimpel 1996). Shafer (1991: 3784) argues that the idea of polit-
ical realignments is less useful than electoral orders, and that political scien-
tists seldom agree upon a contemporary realignment.
36. To Burnham (1989, 1991), the Reagan era was only an incomplete
realignment.
37. For example, Justices Ginsburg and Breyer, both Democratic
appointees of a Democrat president, were the next justices after the Reagan-
Bush presidencies; the next two justices (Roberts and Alito, both Republicans)
joined the Court after a lag of eleven terms.
200 Notes to Chapter 6
38. The linear regression model is: .536 (constant) + .112 (if moved
between regions) .099 (if previously served as a judge + .081 (if described as a
political moderate at confirmation time). For this model, the R-2 is .81, with an
adjusted R-2 of .75. Region is significant at .01; prior judicial experience and
ideology are significant at .05.
39. Arguably, a case can be made for chief justice status. After becoming
chief justice, Justice Rehnquists rate of agreement with public opinion jumped
from 60% to 69%. Statistically, however, the chief justice variable fell victim to
the small number of chief justices (only one per Court) and to multicollinearity
(Chief Justice Rehnquist also moved between regions and was never a judge
before his appointment to the Supreme Court).
CHAPTER SIX
Justices Ginsburg and Breyer, both Jewish, had a much higher (79%) average
voting agreement score during their joint tenure on the Rehnquist Court, and
voted with each other at above-average rates. In the decisions sampled in this
book, Justices Ginsburg and OConnor had a 61% voting agreement rate,
while Justices Ginsburg and Breyer had an 85% voting agreement rate.
25. During his last two terms, Justice Marshall voted with Chief Justice
Rehnquist only 43% of the time, and voted with Justice Scalia only 41% of the
timein both instances Justice Marshalls lowest voting agreement rates with
any justice. By comparison, during his first two terms, Justice Thomas voted at
above-average rates with both Justice Rehnquist (averaging 81% agreement)
and Justice Scalia (averaging 86% agreement); see also Epstein, Hoekstra,
Segal, and Spaeth (1998).
26. During his last two terms, Justice Brennans average voting agreement
with Justices Scalia and Kennedy was only 46% and 49%, respectivelyboth
well below average. During those same two terms, Justice Scalia and Kennedy
voted together at well above average rates (85%), according to the Harvard
Law Review.
27. Even so, the two Jewish justices agreement was not complete, even on
questions of religious observances in public schools. Justices Breyer voted to
allow after-hours religious clubs in public schools, while Justice Ginsburg voted
against the practice in The Good News Club v. Milford Central Schools (2001).
28. For an account of federal judges backgrounds by gender or race, see
Slotnick (1984).
29. No comparisons for Hispanics or for those without religious prefer-
ences are presented, since no such justices served on the Rehnquist Court, and,
until recently, pollsters did not often break down responses by these categories.
30. No Independents sat on the Rehnquist Court; this category is provided
only as a comparison.
31. For an analysis of whether presidential appointees to the Supreme
Court vote together, see Lindquist, Yalof, and Clark (2000).
32. Justice Thomas, a non-Catholic at the time of his Senate confirmation,
was classified as Catholic, due to his Catholic upbringing and his rejoining the
Catholic Church in 1996. Justices Brennan and Powell were classified as
Democrats, since that was their party affiliation, although not that of their
appointing president.
33. The 5% standard for judging a demographic groups position on a
poll question roughly represents the 95% confidence level for men or women in
polls of 600 to 1,000 respondents. This standard is more problematic for
smaller groups (such as blacks or Jews) who may number only about one hun-
dred or twenty-five respondents, respectively, in a poll of one thousand adults
nationwide. Results for small groups should be treated more cautiously than
results for larger groups, such as men or women.
Notes to Chapter 6 203
41. For a similar finding based on litigant claims, see Segal (2000).
42. Republicans and Independents disagreed on only 3% of these issues;
Democrats and Independents disagreed on only 8% of these issues.
CHAPTER SEVEN
For the partial time periods in which both were asked, the Supreme Court
ranked behind the police and the presidency, but ahead of HMOs, the medical
system, television news, and electrical power utilities.
19. In a much earlier account (Murphy and Tanenhaus 1969), some 37%
of Americans held positive views toward the Court and 22% held negative
views, with the remaining 41% as indifferent or uninformed. More recently,
Tyler and Rasinsky (1991: 627) reported that the percent of Americans
expressing positive views of the Court ranged from 45% (gives all interested
citizens a chance to express their views before making decisions) to 72% (only
makes decisions after assembling relevant information).
20. Even those expressing hardly any confidence in the Supreme Court
may not support extreme measures, such as doing away with the Court or dis-
obeying the Court when they disagree with its decisions (Gibson, Caldeira, and
Spence 2003, at 362).
21. Do you approve or disapprove of the way the United States Supreme
Court is handling its job? reported for various dates between June 2000 and
March 2003.
22. Comparing the positive responses to negative responses, the Rehnquist
Court averaged a 3.4 to 1 favorable ratio on the Gallup Poll, a 2.3 to 1 favor-
able ratio on the NORC/GSS Poll, and a 2.1 to 1 favorable ratio on the Harris
Poll.
23. For example, a 1991 Los Angeles Times Poll reported a 45-to-43%
plurality disagreeing that the Supreme Court represents the opinions and
beliefs of people like you. A 1989 Harris Poll reported a 55%-to-41% major-
ity saying that the Supreme Court is not really in touch with what is going on
in the country.
24. On each of these twenty-two poll questions, the respondent was told
the justices name and then asked for a favorable or unfavorable rating. This
type of poll question results in many more respondents offering an opinion
than if the respondent were forced to volunteer the justices name. No ques-
tions were identified for Justices Brennan, Blackmun, Powell, or White.
25. Justices OConnor, Marshall, Stevens, and Rehnquist scored the best
positive-to-negative ratings (at 5 to 1, 4.2 to 1, 4 to 1, and 3.1 to 1, respec-
tively). Justice Thomas scored the worst rating (at 1.5 to 1).
26. CBS/New York Times, 5/1114/1987 and Los Angeles Times, 6/28
30/1991.
27. Research and Forecasts, 10/2011/2/1986.
28. CBS/New York Times, 5/1114/1987.
29. Los Angeles Times, 6/2830/1991: As you may know, the President
appoints justices of the Supreme Court. Would you favor or oppose the direct
Notes to Chapter 7 207
CHAPTER EIGHT
(Hausegger and Baum 1998, 1999: 166; see also Barnes 2004 and Spiller and
Tiller 1993). On the average, about eight majority opinions, per term, openly
invited a congressional override for the 1986 through 1990 terms; see Eskridge
(1991). Congress more often overturns decisions that include an invitation to
review (Ignagni and Meernik 1994). Congress may also use its control over
judicial budgets to signal disagreement with the Courts decisions (Toma 1991).
For a historical review, see Whittington (2001).
4. Paschal (1991) lists the 1991 Civil Rights Act as overturning ten deci-
sions.
5. Under the dormant commerce theory, Congress can agree to state leg-
islative restrictions that would otherwise likely fail on constitutional grounds,
restrict state laws previously accepted by the Supreme Court by legislating in
the area, or extend constitutional protections in an area where the Court previ-
ously allowed restrictions on rights claims (Paschal 1991: 206208).
6. Because some decisions are overridden many years after the original
decision, these numbers doubtlessly undercount the number of Congressional
overrides (Eskridge 1991a; Solomine and Walker 1992).
7. For law journal arguments debating whether lower federal or state
courts overruled precedents sub silentio, see Fowler (2000); Kash (1997);
Leathers (1998/1999); Ledewitz (1999); Nagareda (1998); or Tilleman and
Swindle (1999). For law journal articles debating whether Supreme Court rul-
ings overturned precedents sub silentio, see Cosby (1995); c.f. Esbeck (1998);
Macleod (1997; Ellington, Higashi, Kim, and Murakami (1998); Nice (1999);
Olivas 1997; Ray (2000); and Umhofer (2001).
8. For historical examples, see NoteBecker and Feeley (1973);
Evasion of Supreme Court Mandates (1954); Murphy (1959); Sheldon (1974:
197); and Wasby, dAmato, and Metrailer (1977).
9. President Jackson declined to enforce the Courts Worcester v.
Georgia (1832) decision; Georgia had imprisoned two white missionaries for
living on Cherokee territory, despite the Courts decision that the Georgia law
unconstitutionally regulated commerce with Indian tribes. The two missionaries
remained in jail from 1831 until 1833, until eventually pardoned by Georgias
governor. President Jackson finally did react to South Carolinas nullification
declaration on tariffs by requesting expanded federal judicial power; Congress
approved his request in 1833 (Biskupic and Witt 1997:15). No Rehnquist
Court decisions considered here appear to fall into this sixth category, with the
possible exception of the Courts medical marijuana rulings.
10. At 828, note 1, Collins v. Youngblood (1990), overruling Kring v.
Missouri (1883). The lag for precedents overruled by the Court itself ranged
from 3 years to 107 years, averaging 40 years, with a median of 23 years.
Blaustein and Field (1958) reported a 24-year average lag before the Court
overturned a precedent, compared to only a 2.4 year time lag for decisions
Notes to Chapter 8 211
fourths within ten years (Eskridge 1991; Hettinger and Zorn 2001; Solomine
and Walker 1992). Lindquist and Yalof (2001) put the average time for
Congress to overturn an appeals court decision at five years.
20. Karla Faye Tucker is on death row in Texas for having brutally mur-
dered two people in 1983. Some people who believe she has had a religious
conversion and has been rehabilitated want the State of Texas to reduce her
sentence to life in prison without parole. From what youve heard or read, do
you think her sentence should be reduced to life in prison without parole, or do
you think she should be executed as scheduled? Results: 37%reduced to life
imprisonment; 54%executed; 9%dont know (results for the 74% of
respondents who had heard of Tucker), CBS News Poll, 2/1/1998. For a survey
among national registered voters with similar results, see Fox News,
1/78/1998.
21. In addition to Sable, discussed earlier, Shaw v. Reno (1993) and
Miller v. Johnson (1995), making it more difficult, but not impossible or unnec-
essary, to draw minority-dominated congressional districts, were classified as
prevailing, notwithstanding Hunt v. Cromartie (2001), Lawyer v. Department
of Justice (1997), or Abrams v. Johnson (1996). Since Sable, Shaw, and Miller
were all inconsistent with the polls, the statistical relationships noted would be
stronger had these decisions been classified as failing the test of time or had an
ordinal dependent variable (such as prevailed, substantially modified, or failed)
been used.
22. This figure was computed by taking the minimum lag for overturn-
ings.
23. Congress overturns Supreme Court decisions much more quickly than
the Court itself overrides its own precedents, or than constitutional amend-
ments can be passed. Historically, for the 19351986 period, the hazard rate
(Box-Steffensmeier and Jones 1997) for Supreme Court decisions failing was
the highest in the first or second year after the ruling: 5.5% in the first year and
2.2% in the second year (Marshall 1989).
24. Because all arguable cases were classified as prevailing, these estimates
are a lower bound estimate of the half-life of Court decisions. Had decisions
such as Sable (1989), Browning Ferris (1989), Shaw v. Reno (1993), and Miller
v. Johnson (1995) been classified as failing, the expected half-life would be
shorter.
25. Both analyses are complicated by the limited time frame usedfor the
19351986 period (fifty-one years) or the 19862005 period (nineteen years).
Data for longer time periods may well yield longer half-life estimates. The
19351986 logit equation is: 2.16 (constant) 1.15 (if inconsistent with public
opinion) .04 (per year of the decision prior to 1986). The constant and both
predictors are significant at the .001 level, and the equation correctly predicts
90% of the decisions, compared to a base rate of 82%, or an improvement of
44% over the base rate. The 19862005 logit equation is 6.883 .394 (per lag
Notes to Chapter 8 213
year) + 2.456 (if consistent with public opinion). No other variables were sig-
nificant predictors for either time period, either alone or in combination with
years and public opinion. Results using rare events logit were virtually identical
to these results (King and Zeng 2001).
26. For most Supreme Court decisions no polling evidence is available,
and the importance of public opinion cannot be estimated, although other
explanations for a decisions longevity can be. For a discussion of congressional
overrides, see Hettinger and Zorn (2005).
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259
260 Index
Public Opinion and the Rehnquist Court offers the most thorough evidence yet in favor of the
U.S. Supreme Court representing public opinion. Thomas R. Marshall analyzes more than two
thousand nationwide public opinion polls during the Rehnquist Court era and argues that a clear
majority of Supreme Court decisions agree with public opinion. He explains that the Court
represents American attitudes when public opinion is well informed on a dispute and when the
U.S. Solicitor General takes a position agreeing with poll majorities. He also finds that certain
justices best represent public opinion and that the Court uses its review powers over the state and
federal courts to bring judicial decision making back in line with public opinion. Finally, Marshall
observes that unpopular Supreme Court decisions simply do not endure as long as do popular
decisions.
This is an excellent, well-written, and important book. Not only is it comprehensive in its
examination of opinions rendered by the Supreme Court, but it is also comprehensive with respect
to the relevant literature produced by Supreme Court scholars and with a clear understanding of
said literature.
Charles D. Hadley, coauthor of Womens PACs: Abortion and Elections
Marshall constructs a well-developed set of models, which are effectively used for organizing
previous studies and as the framework for his own research. This is an important addition to the
fields of law and courts and public opinion.
Stephen L. Wasby, author of The Supreme Court in the Federal Judicial System