Why the Supreme Court Cares About Elites, Not the American People

Lawrence Baum & Neal Devins

 

Unlike political scientists and law professors who link Supreme Court decision making to public opinion, we argue that Supreme Court Justices care more about the views of academics, journalists, and other elites than they do about public opinion.  This is true of nearly all Justices and is especially true of swing Justices, who often cast the critical votes in the Court’s most visible decisions.

Our argument is grounded in social psychology. In particular, we argue that Supreme Court Justices are not single-minded maximizers of legal or policy preferences. Instead, Justices seek both to advance favored policies and to win approval from audiences they care about. These audiences may include the public but are more likely to include elites—individuals and groups that have high socioeconomic status and political influence. The primary reason is that Supreme Court Justices themselves are social and economic elites. As such, they are likely to care a great deal about their reputations among other elites, including academics, journalists, other judges, fellow lawyers, members of other interest groups, and their friends and neighbors.

This view leads us to a different conception of the forces that shape the Court from the one expressed by most political scientists as well as legal scholars such as Barry Friedman and Jeff Rosen.1 As those scholars see it, the Justices are devoted to achiev­ing what they see as the best legal policies, and they deviate from their most preferred policies only for strategic reasons—that is, when doing so advances those policies in the long run. Thus, to take one important example, the Justices accede to public opinion in order to maintain the Court’s legitimacy and its ability to make legal policy effectively.

In our view, in contrast, the Justices have concerns other than maximizing the achievement of their preferred legal policies, and prominent among those concerns is their interest in the regard of other people who are important to them. When the Justices deviate from their preferred legal policies, it may be because of strategic considerations, and some of these considerations relate to public opinion. However, it is more often the case that Justices are influenced by the views of other elites who are important to them for personal rather than strategic reasons. Thus, we agree with the scholars who emphasize that the Justices are primarily motivated by what they regard as good law or good policy; we disagree on the reasons that Justices sometimes deviate from the positions that they prefer.

Our argument proceeds in three parts. Part I calls attention to the various ways in which the Supreme Court is shaped by social and political forces, including changing social norms, appointments to the Court, and backlash from elected officials. Part II sets forth the social psychology model that we employ and, in so doing, criticizes the dominant political science models for failing to take account of the fact that Supreme Court Justices may care a great deal about what people in their social and professional networks think of them.  Part III backs up this claim, calling attention both to the limited influence of the mass public and to evidence suggesting that the Court is more attentive to the views of elites. Part III will also provide empirical support for the so-called “Greenhouse effect”—the pattern in which some Supreme Court Justices have drifted away from the conservatism of their early votes and opinions towards the stated preferences of cultural elites, including left-leaning journalists and the what some people think of as the liberal legal establishment that dominates at elite law schools.

 
I.
Social and Political Influences on Supreme Court Decision Making

Supreme Court decision making is very much a product of its times and, as such, there is little question that the American people play a significant role in the shaping of constitutional values. Elections, after all, determine who controls Congress, the White House, and much more. The American people, therefore, play an important role in shaping interactions between the judiciary and the other branches, including the determination of who is nominated and confirmed to the Supreme Court.  For example, Franklin Delano Roosevelt transformed Supreme Court decision making by appointing four pro-New Deal Justices from 1937 to 1939; likewise, the Rehnquist Court’s revitalization of federalism was tied to judicial appointments by Ronald Reagan and George H. Bush.

Furthermore, the Court is not immune from changing social norms and it is to be expected that the Justices’ opinions will eventually reflect changing social conditions.  Consider, for example, the nexus between the 1960s’ women’s movement and the Court’s increasing receptive­ness to constitutional attacks on gender classifications. Before 1971, the Court had never invalidated a gender classification under the Equal Protection Clause. By 1976 (with five Nixon and Ford appointees on the Court), the Court had deemed gender a problematic classification—a shift that matched profound change in gender roles, including the doubling, from 1940 to 1960, of the number of women working outside the home.

At the same time, we do not think that public opinion has a significant direct effect on Court decision making. The fact that a Court decision matches the majority view among the general public does not mean that the Court, in fact, took public opinion into account; likewise, Court decisions may diverge from public opinion even though they are shaped by social and political forces. More to the point, law professors and political scientists need to identify with some specificity whether majoritarian judicial review is tied to elected government pressures, changing norms over time (sometimes reflected in the appointments process), or public opinion. For this reason, although we agree with many of the specific claims (by Barry Friedman, Jeff Rosen, and others) about the majoritarian nature of judicial review, we disagree with the broader claim that modern Court decision making is directly influenced by public opinion to any substantial degree; rather, we believe that the effect of public opinion on the Court is primarily indirect. For example, the Democratic Senate’s rejection of Robert Bork’s Supreme Court nomination and Ronald Reagan’s subsequent nomination of Anthony Kennedy directly influenced judicial decision making; the voters who elected Ronald Reagan and Senate Democrats indirectly influenced Supreme Court decision making.

 
II.
The Social Psychology of the Justices

The belief that public opinion affects Supreme Court decisions rests heavily on the belief that Justices are solely interested in making good law, good policy, or some combination of the two. As many scholars see it, the Justices respond to public views because they are concerned with the Court’s efficacy as a maker of legal policy. According to this view, lacking concrete sources of power, the Court depends on its public legitimacy. Insufficient legitimacy will lead to negative consequences, including poor implementation of the Court’s decisions and attacks on the Court and its powers by the other branches of government. As a result, the Justices are hesitant to adopt lines of decisions that diverge sharply from public opinion or to engage in practices that conflict with public expectations of the Court.

The premise that Justices seek to advance policy and/or legal preferences is often accepted reflexively, without any consideration of the Justices’ potential interest in harmonious relationships with other Justices as well as power, prestige, reputation, self respect, and the other satisfactions that people seek in a job. For our purposes, however, it is more important to think about motivation at a deeper level.  Whatever goals the Justices seek to advance, there must be a motivational basis for that goal.

The social psychology model—which we embrace—emphasizes the basic human desire to be liked and respected. To what extent do Justices care about the esteem of the general public, and to what extent do they care about the esteem of groups that consist of people who are political and social elites? The answer seems self-evident. Like others, Supreme Court Justices want most to be liked and respected by people to whom they are personally close and people with whom they identify. For the Justices, those people are overwhelmingly part of elite groups. “Except for Justice Thomas,” as Judge Richard Posner observed, “the current Justices of the Supreme Court grew up in privileged circumstances and do not rub shoulders with hoi polloi.”2 More to the point, because the Justices come from elite law schools, are overwhelmingly upper-middle-class or upper class, and travel in social and professional networks dominated by elites, the views of social and economic leaders are likely to matter more to the Court than to popularly elected lawmakers (who must appeal to popular sentiment in order to win elections).

None of this is to say that Supreme Court Justices will vote against sincerely held policy preferences in order to win favor with elite audiences.  It is to say that Supreme Court Justices are also interested in power and reputation and, for this reason, a Justice’s preferences and votes—consciously or unconsciously—are influenced by audiences they care about. Unlike political science models that argue that Justices will calibrate their decision making to stave off politically costly public disapproval, the social psychology model highlights the pivotal role that personal motivation plays in judicial decision making. Social psychology anticipates that the formation of legal policy preferences is driven by both ideological and personal motivations, so there is likely to be considerable agreement between Justices’ preferences and the preferences of the audiences that are most important to them. In contrast, any mechanisms that lead to agreement in preferences between the Justices and the general public are likely to be weaker.

 
III.
Analyzing the Empirical Evidence

What then of the empirical evidence?  Does it back up our claim that the Justices will respond more to elite groups in American society than to the general public?  We think so for three different reasons. 

First, contrary to the claims of many political scientists, the Court has little reason to moderate its decision making in order to preserve its effectiveness as a policy maker. Fundamental support for the Court—support that is captured by the concept of legitimacy—is strong and robust, and it is not fragile in the sense that negative reactions to the Court’s decisions threaten it. Not surprisingly, disagreement with the Court’s decisions may have negative effects on “specific support” for the Court, which focuses on the Court’s decisions or membership. However, these effects tend to fade over time.  More relevant to our concerns, even strong public opposition to decisions has little potential to erode the Court’s “diffuse support”—that is, its basic legitimacy. Consider, for example, the evidence we have on public reactions to Bush v. Gore.3  Rather than undermine the Court’s institutional status, Bush v. Gore had little impact on the Court’s legitimacy, even among members of the public who were unhappy with it.      

Second, there is little reason to think that the general public exerts much influence on the Justices.  This conclusion is supported by evidence on the agreement between the Court and the public and evidence on whether the Justices seek to align the Court more closely with public opinion.  Most significant, the Court and public disagree around 40 percent of the time, including some highly visible and salient issues, and on some issues in which the divergence is sharp. Examples include flag burning (on average, about three-quarters of the public disagreed with the Court in surveys in the two months after the decision), school prayer (in two surveys over the decade after the 1962 and 1963 rulings, about 70 percent disagreed), and eminent domain (a survey after the decision found 81 percent disagreement).

It is, of course, possible that the Justices do not know that their rulings are at odds with public opinion.  Yet, even after learning that their initial ruling was unpopular among the public, the Justices often adhere to that ruling.  Examples include school prayer, flag desecration, school bussing, and the use of the death penalty for a person convicted of the sexual assault of a child.   More than that, instances in which the Court shifts over to a popular position are often tied to lawmaker pressure or judicial appointments.  In other words, public opinion seems to play an indirect, not direct, role in explaining shifts in judicial decision making.

Another way in which the Justices might respond to public opinion is to adjust the overall ideological tenor of their decisions in response to shifts in public opinion. As the public becomes more liberal or more conservative, the Justices might move in the same direction in order to avoid endangering their public standing by creating the impression that they are out of step. Several studies have analyzed whether the Court is responsive to the public in this sense. Taken as a whole, these studies suggest that public opinion indirectly impacts judicial decision making.  For example, as noted earlier, shifts in Court doctrine on gender classifications reflected larger trends in society.  In this way, the Justices were not responding to public opinion; instead, their policy and legal preferences had changed in ways that matched larger social forces.

Third, opinion poll data and measures of the ideological shift of Justices over time both suggest that the Court is influenced by elites, especially left leaning journalists and academics. To start, people with high levels of education differ considerably in their opinions from people with less education. In the current era, the Court’s doctrines on controversial social issues are more consistent with the views of highly educated people than with the views of the populace as a whole. This is true of issues such as gender equality, sexual orientation, abortion, school prayer, flag burning, and affirmative action. On each of these issues, people with more education are more likely than other Americans to take positions that are typically identified as liberal. In each instance, by varying margins, the most highly educated group was more favorable to the Court’s position around the time of the ruling than was the remainder of the population. For example, 41.4 percent of individuals with education beyond an undergraduate degree supported the Court’s school prayer ruling; 14.9 percent of those with lower levels of education supported the decision.  On flag burning, the gap was 44.1 percent to 14.4 percent; on enemy combatants, 50 percent to 32.7 percent.

Evidence of Republican appointees to the Court veering left during their Court tenure is more striking, suggesting that the media, legal scholars, and leaders of the legal profession have helped influence some Justices.  On civil liberties cases that received front page coverage in The New York Times, changes in the Justices’ voting records are quite stark.  A comparison of the first two terms of a Justice’s tenure to the fifth through tenth terms reveals that the following Republican appointees have significantly increased their percentage of liberal voting: Warren (17%), Blackmun (15%), Powell (12%), O’Connor (14%), Kennedy (34%), Souter (20%).  And while other factors undoubtedly contribute to this pattern, these findings are consistent with psychological theory.

 
IV.
Conclusion

Supreme Court Justices enjoy a high level of independence from their political and social environment. Neither mass public opinion, the views of relevant elite groups, nor any other segment of the world outside the Court has control over the Justices’ choices. Because of that independence, the most powerful determinants of the Court’s decisions are the Justices’ own concep­tions of good law and good policy.

Even so, to a great extent the Court is a majoritarian institution, in that its policies tend to coincide with the preferences of policy makers in the other branches of government and those of the country as a whole. This tendency results from several different processes, including the appointments of Justices, pressures on the Court from Congress and the Executive Branch, and the effects of societal developments on the Justices’ thinking.

Scholars frequently identify another source of majoritarianism, the direct influence of the general public on the Justices. That influence is thought to derive primarily or solely from the Justices’ concern with their legitimacy. For reasons discussed above and in much greater detail in our published article, we think the legitimacy rationale is unpersuasive.  The Justices have little incentive to follow the will of the people and the Court as a whole has demonstrated considerable independence from public opinion.

In contrast, the Justices have strong incentives to maintain their standing with the elite audiences that are salient to them. Fundamentally, those incentives derive not from concern about support for the Court as an institution but from the human need for approval from individuals and groups that are important to them. Because the individuals and groups most salient to the Justices are overwhelmingly from elite segments of American society, it is the values and opinions of elites that have the greatest impact on the Justices. This is one important reason why Court decisions typically accord with the views of the most educated people better than they do with the views of the public as a whole. More to the point, the Justices advance their personal preferences by attending both to their preferred vision of legal policy and to the reference groups that matter most to them. Consequently, although the Justices will not diverge sharply from policy positions they strongly favor, the departures they do make are more likely to reflect their personal reference groups than the popular will.

Acknowledgments:

Copyright © 2010 The Georgetown Law Journal

Lawrence Baum is a Professor of Political Science, Ohio State University;
Neal Devins is the Goodrich Professor of Law and a Professor of Government, College of William and Mary.

  1. See Barry Friedman, The Will of the People: How Public Opinion Has Influenced The Supreme Court and Shaped the Meaning of the Constitution (2009); Jeffrey Rosen, The Most Democratic Branch: How the Courts Serve America (2006).
  2. Richard Posner, How Judges Think, 306 (2008).
  3. 531 U.S. 98 (2000).

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