Welcome to the Roundtable, a forum for incisive commentary and analysis
on cases and developments in law and the legal system.
on cases and developments in law and the legal system.
By Luis Bravo
Luis Bravo is a sophomore at the University of Pennsylvania studying sociology.
Fearful of tyranny, the founding fathers made a concerted effort to limit the breadth of the United States government. For many decades, the Supreme Court ruled down efforts to expand the role of the government, citing federalism as outlined in the constitution. Yet, fast forward to today and we find the government being an inescapable presence in people’s daily life. Though many of these changes can be attributed to the introduction of the interstate commerce clause, different generations of the Supreme Court have interpreted the same enumerated power distinctively. What accounts for these different interpretations and why do different Supreme Courts amend previously held stances? Underlying fixed legislation is a dynamic public opinion that fluctuates based on societal conventions of the time. Though it is only one of a multitude of factors, public opinion is a powerful force with the ability to shape legal interpretation at all levels, including the Supreme Court.
When crafting the constitution, the founding fathers granted lifetime tenure for judges of the Supreme Court to isolate them from the influences of the political system and secure the “independent spirit” of the nation’s highest court.  While these judges may be removed from the impact of the electoral process, they do not live in a vacuum and are subject to external pressures. Much like the average informed citizen, they read the news, follow trends, and care about the opinion of others. With the Supreme Court being an integral component in societal change, many scholars have begun exploring the influences of judicial interpretation, specifically the relationship of interpretation and public opinion. A growing body of evidence seems to suggest public opinion is indeed a powerful force in legal interpretation, but there is an ardent debate regarding the actual mechanisms of this process.
In support of this theory, Mishler and Sheehman argue that there is an overarching relationship between public mood and Supreme Court decisions, albeit with a delay of around five years.  That is, the Supreme Court is responsive to changes in mass opinion, but will not act on these changes until after 5 years. On the other hand, the public is significantly more responsive on decisions made by the Supreme Court. Presidential appointments have the ability to tilt the political balance and stray the court away from majoritarian opinion. However, in spite of a growing gap in this relationship, there is a correlation nonetheless.
Similarly, Kramer also believes the Supreme Court is a majoritarian institution; however, attributes their concern with public opinion on a desire to bolster the legitimacy of the judicial branch.  Though the court would like to maintain public support via its credentials, Kramer argues this has been unsuccessful in recent times. As a result, the Court has increased its consideration of public mood to bolster its popularity. Still, he acknowledges that this isn’t a perfect model and there will be exceptions, particularly in cases which seem insignificant or distant from larger trends. In contrast, Cassillas, Enns, and Wohlfath also argue that the Supreme Court is a majoritarian institution, however, unlike argued by Kramer, mostly on non salient cases.  They find that on salient cases, the court is not afraid to decide against the majority opinion, but instead base their decision along ideological lines. On non salient cases, they find that the judges rely more heavily on public opinion as a guide. This seems to be a considerable and noteworthy deviations from other works that propose a similar relationship between public opinion and legal interpretation.
Still, there is a considerable body of work that rejects any relationship between both factors. As explained in many of the articles mentioned throughout this piece, early research considered the Supreme Court as a staunchly independent branch, distant and far removed from public opinion. Though recent research has produced results to the contrary, it is important to note that such majoritarian focus in part by the Supreme Court became more important in the latter part of the 20th century. This seems to complement, rather than contradict findings in more recent works that find the Supreme Court to be a majoritarian institution. Other articles cite different factors as more important than public opinion in predicting judicial decisions and sources of legal interpretation. The attitudinal model, for example, argues decisions can best be predicted by the individual attitudes of judges.  This bias overrides other factors including public sentiments. Most interestingly, other scholars find the Supreme Court to actually counter majoritative. Barnum argues that the Supreme Court in the post New Deal era decides against the will of the popular opinion, especially in cases surrounding the rights and privileges of minorities . In an interesting twist, however, they postulate that the court will rule absent a clear majority mostly in cases where an increasing support trend is evident. In this way, though it rules against the will of the majority it follows majoritarian principles by following the direction of public support.
In spite of opposing evidence, it general trend appears to be in favor of a majoritative view of legal interpretation in the Supreme Court. Whether or not this is a positive thing, continues to be debated. On one hand, this deviates significantly from the framer’s intent. The Supreme Court is meant to be a removed institution, unswayed by the public and ruling solely on the Constitution. A deviation from this could result in nearly any piece of legislation being justified as constitutional. On the other hand, an increasingly majoritarian Supreme Court could result in the will of the people being upheld more consistently, especially when other branches are unresponsive to public opinion. Though the ideal scenario is all but clear, it is evident public opinion will continue to be an important factor in legal interpretation. Even if we could prohibit rendering judgments on the basis of public opinion, the sentiments of the country influence the Court in many other ways including which cases are chosen to be on the docket and how each justice writes his/her opinions . Indeed, further research is necessary to analyze the precise impact of public opinion and be able to create effective policy solutions to mitigate the negative impacts of external influences.
 Hamilton, Alexander. “The Judicial Department.” In The Federalist Papers, n.d. https://www.congress.gov/resources/display/content/The+Federalist+Papers#TheFederalistPapers-78
 Mishler, William, and Reginald S. Sheehan. “The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions.” The American Political Science Review 87, no. 1 (1993): 87–101. doi:10.2307/2938958.
 Crook, Clive. “Does the Supreme Court Follow the People?” The Atlantic, June 29, 2011. https://www.theatlantic.com/national/archive/2011/06/does-the-supreme-court-follow-the-people/241255/
 Casillas, Christopher J., Peter K. Enns, and Patrick C. Wohlfarth. “How Public Opinion Constrains the U.S. Supreme Court.” American Journal of Political Science 55, no. 1 (January 1, 2011): 74–88. doi:10.1111/j.1540-5907.2010.00485.x.
 Seamon, Richard. “Two Models of Judicial Decision Making.” University of Idaho - College of Law, n.d. https://isc.idaho.gov/judicialedu/judges/DecisionMaking/TwoModelsOfJudicialDecisionMaking01.13.pdf
 Barnum, David G. “The Supreme Court and Public Opinion: Judicial Decision Making in the Post- New Deal Period.” The Journal of Politics 47, no. 2 (June 1, 1985): 652–66. doi:10.2307/2130901
 Black, Ryan C., Ryan J. Owens, Justin Wedeking, and Patrick C. Wohlfarth. US Supreme Court Opinions and Their Audiences. Cambridge University Press, 2016.
The opinions and views expressed through this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.
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