Judicial Consensus and Public Opinion

• Author: Michael F. Salamone
• Published date: 01 June 2014
• DOI: 10.1177/1065912913497840
• Date: 01 June 2014
• Subject Matter: Articles

497840PRQXXX10.1177/1065912913497840Political Research QuarterlySalamone
research-article2013
Article
Political Research Quarterly
2014, Vol. 67(2) 320 –334
Judicial Consensus and Public Opinion:
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Majority Size
Michael F. Salamone1
Abstract
Do judicial dissents affect mass politics? The conventional wisdom is that unanimous rulings boost support for Supreme
Court decisions, while division fuels popular opposition. However, empirical analysis of public reaction to unanimity
and dissent is sparse, incomplete, and inconsistent. Through a series of survey experiments, I expand upon existing
research on public opinion of judicial unity. I find that reaction to judicial consensus is dependent on the ideological
salience of the issue involved and that, contrary to conventional wisdom and recent findings, dissent can foster
acceptance of rulings among the Court’s opponents by suggesting evidence of procedural justice.
Keywords
Supreme Court, public opinion, dissent, experiments
In May of 1954, the Supreme Court, led by Chief Justice
has challenged this conclusion (Zink, Spriggs, and Scott
Earl Warren, announced its unanimous decision in Brown
2009).
v. Board of Education that racial segregation in public
This paper examines public reaction to Supreme Court
schools was unconstitutional. Although the justices were
majority size through a series of survey experiments.
initially deeply divided on the issue in this case, Warren,
Unlike prior work, these experiments consider the dis-
fearing that divisions on the Court would feed public
tinction between large and small non-unanimous majori-
resistance to the ruling, artfully crafted and negotiated a
ties. While there exist separate lines of conventional
unanimous opinion (Klarman 2004). In other words, the
wisdom as to how the public may react to a five-to-four
Court in Brown believed that the extent to which it was
decision versus one that is eight-to-one, the two are often
unified mattered to the public’s perception of the conflated in the scholarly literature, blurring the practical
decision.
differences in the way disunity is perceived. In addition, I
This is just one example of a prevalent assumption
consider the hypothesis that, in some instances, dissent
regarding the relationship between the courts and the
may actually help rather than hinder public acceptance of
public: dissenting opinions are somehow damaging to a
judicial decisions. Though this is contrary to the conven-
court’s public image and political power. Following this
tional wisdom, it is consistent with well-established
logic, we would likely assume that a unanimous decision
social psychological studies of the public’s belief in the
will meet less resistance from the public than a divided
legitimacy of the legal system. While I find evidence that
one. In addition, courts that more often present unified
majority size does have an impact on public attitudes
fronts may maintain a higher degree of public trust than
toward Court decisions, the results show that this effect
those that are wrought with division. Versions of these
varies—in its magnitude and direction—with the salience
assumptions appear frequently in discussions of the
of the issue involved. Specifically, I find that the public is
court’s standing with the public at large.
unmoved by the majority size in highly salient decisions,
In spite of this widespread conventional wisdom on
that those predisposed to oppose the court are more
the harm of judicial disunity to the court’s popular legiti-
receptive to divided, moderately salient cases, and that
macy, there is scant research on its empirical veracity.
The little scholarly research addressing this topic has var-
1Washington State University, Pullman, WA, USA
ied in its assessment. For several decades, this slow-mov-
ing literature’s position was that public attitudes toward
Corresponding Author:
the Supreme Court and its rulings are unaffected by
Michael F. Salamone, School of Politics, Philosophy, and Public Affairs,
Washington State University, Johnson Tower 801, P.O. Box 644880,
majority size (Gibson, Caldeira, and Spence 2005;
Pullman, WA 99164, USA.
Marshall 1987; Peterson 1981), though one recent study
Email: michael.salamone@wsu.edu

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Salamone
321
large majorities in cases with low salience can move pub-
criticism, he suggests that loss of public support for the
lic attitudes in the direction of the decision.
judicial rulings may be the cost of abandoning the con-
sensual norm.
Judicial and Political Concerns about
Even after judicial dissent had grown to become more
commonplace, Learned Hand (1958), while serving as a
Dissent
judge on the U.S. Court of Appeals for the Second Cir-
Historically, many of those on the federal bench have
cuit, wrote,
worried about the public opinion consequences of hand-
ing down a decision without a unified front. The afore-
[T]he difficulty of securing unanimity . . . is disastrous
mentioned example of Warren’s concern in Brown is but
because disunity cancels the impact of monolithic solidarity
one high-profile example. In fact, after becoming the
on which the authority of a bench of judges so largely
depends. People become aware that the answer to the
Supreme Court’s fourth Chief Justice in 1801, John
controversy is uncertain, even to those best qualified, and
Marshall, in an effort to increase the Court’s institutional
they feel free, unless especially docile, to ignore it if they are
legitimacy, discontinued the practice of each justice writ-
reasonably sure that they will not be caught.
ing a separate, or seriatim, opinion in favor of a single,
typically unanimous opinion of the Court for each case.
That is, Hand suspects that unanimity is essential for
Thomas Jefferson, a political adversary of Marshall’s,
public confidence in and compliance with legal
was highly critical of this new approach and suggested
decisions.
that seriatim opinion writing be required so that Congress
This view is expressed not only in the extracurricular
could maintain oversight over the behavior of individual
writings of federal judges, but in the written opinions of
judges (Moorhead 1952). Nevertheless, Marshall’s new
the Supreme Court Justices themselves. For instance,
custom of a singular opinion for each case dominated the
Justice Edward White, in Pollock v. Farmers’ Loan and
Court’s rulings throughout his tenure, which saw a dra-
Trust Co. (1895) argued, “The only purpose which an
matic strengthening of the institutional position of the
elaborate dissent can accomplish, if any, is to weaken the
third branch.
effect of the opinion of the majority, and thus engender
Marshall’s unanimity norm continued on the Court well
want of confidence in the conclusions of courts of last
into the twentieth century. Though justices did occasion-
resort.” More recently, Justice Stephen Breyer stated in
ally write separate opinions to dissent from the majority
Bush v. Gore (2000), “And above all, in this highly politi-
even as early as the Marshall Court, this was a relatively
cized matter, the appearance of a split decision runs the
unusual occurrence until 1941 (Walker, Epstein, and
risk of undermining the public’s confidence in the Court
Dixon 1988). Given this norm of avoiding dissent, it is
itself.” In fact, Davis (2011) argues that the justices will
not surprising that a number of practicing judges have
use dissents as a means of attracting media attention to
viewed separate opinion writing negatively. Interestingly,
their ideas and detracting public support from the
many of their arguments point to external motives for
majority.
judicial dissent. For instance, between his two Supreme
Public voices expressing concern over the Court’s divi-
Court appointments, soon-to-be Chief Justice Charles
sion do not only arise from the judiciary itself. Recently, a
Evans Hughes (1928) wrote,
number of figures in the news media have taken up the
issue. However, unlike the above concerns, which chiefly
There are some who think it desirable that dissents should
warn against the dangers of any dissent whatsoever, media
not be disclosed as they detract from the force of judgment.
commentators are particularly troubled by the Supreme
Undoubtedly, they do. When unanimity can be obtained
Court’s apparent level of sharp, partisan divisions. For
without sacrifice of conviction, it strongly commends the
decision to public confidence. But unanimity which is
instance, in an op-ed column for the New York Times, Ross
merely formal, which is recorded at the expense of strong,
Douthat (2009) lamented that “settling so many vexing
conflicting views, is not desirable in a court of last resort,
controversies with 5-to-4 votes . . . is an awfully poor way
whatever may be the effect upon public opinion at the time.
to run a republic.” From abroad, David Pannick (2008)
argued in an op-ed for the Times of London that Americans
Hughes’ statement appears to acknowledge the notion
should elect Barack Obama because of the consequences
that judges are aware of and are concerned about the
that McCain’s nominations would have on the partisan and
external force of public opinion when determining their
closely divided American Supreme Court. These...