On the Relationship between Public Opinion and Decision Making in the U.S. Courts of Appeals

• Author: Paul M. Collins,Matthew Eshbaugh-Soha,Bryan Calvin
• DOI: 10.1177/1065912910376387
• Date: 01 December 2011
• Published date: 01 December 2011

Political Research Quarterly

64(4) 736 –748

© 2011 University of Utah

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DOI: 10.1177/1065912910376387

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On the Relationship between Public

Opinion and Decision Making in

the U.S. Courts of Appeals

Bryan Calvin1, Paul M. Collins, Jr.1, and Matthew Eshbaugh-Soha1

Abstract

The authors explore whether the federal courts act as countermajoritarian institutions by investigating the influence

of public mood on decision making in the U.S. Courts of Appeals from 1961 to 2002. The results indicate that public

opinion affects courts of appeals decision making indirectly through judicial replacements and institutional constrains

from Congress, but the authors fail to uncover evidence that courts of appeals judges respond directly to changes in

public opinion. They conclude that, absent membership turnover in the circuit or in Congress, the courts of appeals

are not responsive to the will of the public.

Keywords

judicial decision making, countermajoritarian, democratic, institutional visibility, public mood

Federal judges occupy a peculiar position in the American

political system. Like members of Congress and the pres-

ident, they have substantial policy-making powers. How-

ever, unlike their legislative and executive counterparts,

they are not subject to popular will through elections. The

electoral independence of the federal courts, coupled

with their ability to make public policy (inclusive of the

use of judicial review), has long fanned the flames of the

debate regarding the proper role of the federal judiciary

in the American polity. Scholars are acutely aware of the

tension between judges’ roles as policy makers and the

actuality that federal judges are unelected, leading them

to question whether the federal courts operate as counter-

majoritarian institutions or follow the mood of the public

(e.g., Bickel 1962; Dahl 1957; Flemming and Wood 1997;

Friedman 2009; Giles, Blackstone, and Vining 2008;

Marshall 2008; McGuire and Stimson 2004; Mishler and

Sheehan 1993; Norpoth and Segal 1994).

Indeed, the fear that a relatively small number of

unelected judges can—and do—substitute their own will

for that of duly elected public officials has motivated some

to advocate for changes in federal judicial selection,

ranging from setting term limits for federal judges (e.g.,

Calabresi and Lindgren 2006) to calling for their direct

election (e.g., Clark 1903). While there are significant

normative concerns stemming from the role of federal

judges as unelected policy makers (e.g., Comiskey 2009;

Friedman 2009), our understanding of the countermajori-

tarian nature of the federal courts can also be furthered

through the empirical analysis of the relationship between

public opinion and judicial decision making.1 Simply put,

if federal judges are responsive to changes in public opin-

ion, this might mitigate the significance of the fact that

these actors are unelected (e.g., Comiskey 2009; Marshall

2008). The purpose of this research is to contribute to the

debate regarding the undemocratic nature of the federal

courts by exploring whether public opinion shapes deci-

sion making on the U.S. Courts of Appeals.

An examination of the relationship between public

opinion and the decisions courts of appeals judges make

is significant for a number of reasons. First, this research

contributes to our understanding of the countermajoritar-

ian nature of the federal courts. Although there is a sub-

stantial literature devoted to this paradigm, it almost

exclusively focuses on the role of the U.S. Supreme Court

(but see, e.g., Cook 1977; Giles and Walker 1975; Kritzer

1979; Manning and Carp 2005; Manning, Kuersten, and

Carp 2001; Massie 2002; Peltason 1971). While the U.S.

Supreme Court is a tremendously consequential venue,

the almost exclusive focus on this institution threatens

the generalizability of our understanding of the possible

1University of North Texas, Denton, TX, USA

Corresponding Author:

Paul M. Collins, Jr., University of North Texas, Department of Political

Science, 125 Wooten Hall, 1155 Union Circle #305340, Denton, TX

76203-5017

Email: pmcollins@unt.edu