Public Opinion and the Supreme Court

By Sam Barr | July 21, 2009 at 10:29 am

James L. Gibson writes at The Volokh Conspiracy about the Supreme Court’s institutional legitimacy. He makes a number of claims, which I imagine are backed up by data and evidence:

1. The Supreme Court has a high level of institutional legitimacy.
2. This public support has been roughly constant for 25 years.
3. The more citizens know about courts, the more legitimacy they extend to them.
4. The “highly legitimizing symbols of judicial power” (robes, courthouses, “your honor”) are largely responsible for this enhanced respect among “knowledgeable” citizens.
5. The Court’s legitimacy went up after Bush v. Gore, as Republicans viewed it more favorably, and Democrats just as favorably as before, because they saw the decision as grounded in law, not politics… presumably because of the robes.

These claims lead to the conclusion that the Supreme Court “can get away with virtually any policy, so long as it is draped in the appropriate symbolic shroud.”

Now, a number of scholars (e.g. Robert Dahl) have argued that the Supreme Court is actually quite constrained by public opinion — there might be some lag time or some short period of trailblazing, but in the end, the Court won’t and can’t stand in the way of a determined and active political majority. It is “inevitably a part of the dominant national alliance,” as Dahl wrote.

If Gibson wants to contradict that idea, that’s his right. Where he runs into trouble is in trying to make this argument coexist with his tendency towards back-patting regarding the role of citizens in this courtroom drama. First, Gibson does not seem to think it even slightly objectionable that “legitimizing symbols” play the role that one might hope would be played by, you know, sound judicial decisions (of which Bush v. Gore was certainly not one). Second, he argues that the public, in addition to conferring legitimacy, actually extracts some degree of accountability from the Court. He writes, “Citizens who are unhappy with the Supreme Court can properly petition their legislative representatives, for instance, to change the jurisdiction of the institution, removing some types of cases from the Court’s docket.” Never mind that this is extraordinarily tenuous and generous — how is this supposed to sit with the claim that the Supreme Court can get away with anything so long as it maintains appearances?

Gibson’s endgame is to attack the idea that “elite opinion should dominate” judicial policy making, but his case is confusing. Why would we want public opinion to hold sway if it is so malleable as to be affected by the sight of robes, and so lacking in normative value as to actually approve of a terribly reasoned decision like Bush v. Gore? Gibson wants to demystify and democratize the Court, but it seems to me that Dahl and his cohorts already did that — by pointing out that the Court is, by nature and necessity, in lockstep with democratic majorities, exactly the claim that Gibson seems to contradict.

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