Public Mood, Previous Electoral Experience, and Responsiveness Among Federal Circuit Court Judges
| Date | 01 November 2017 |
| Published date | 01 November 2017 |
| DOI | 10.1177/1532673X17692325 |
| Subject Matter | Articles |
research-article2017
Article
American Politics Research
2017, Vol. 45(6) 1003 –1031
Public Mood, Previous
© The Author(s) 2017
Reprints and permissions:
Electoral Experience, and sagepub.com/journalsPermissions.nav
https://doi.org/10.1177/1532673X17692325
DOI: 10.1177/1532673X17692325
journals.sagepub.com/home/apr
Responsiveness Among
Federal Circuit Court
Judges
Ryan J. Owens1 and Patrick C. Wohlfarth2
Abstract
Whether public opinion influences federal judges is a question that has
long motivated—but often eluded—scholars. In this article, we examine
two related questions: First, whether federal circuit court judges respond
to circuit-level public opinion and, second, whether judges with extensive
past elected political experience are even more responsive. The data
show that circuit judges indeed respond to public opinion. The results also
suggest that judges with greater past elected political experience may be
more responsive. The results have implications for democratic control of
the unelected judiciary, and suggest that appointing judges with electoral
experience could, for better or worse, lead to a more majoritarian judiciary.
Keywords
US Courts of Appeals, public opinion, electoral experience, judicial decision
making
Do federal circuit court judges respond to public opinion in their circuits? Are
judges with extensive past experience as elected politicians even more
responsive than their colleagues? In 2001, then-Chief Justice Rehnquist
1University of Wisconsin–Madison, MD, USA
2University of Maryland, College Park, MD, USA
Corresponding Author:
Patrick C. Wohlfarth, Department of Government & Politics, University of Maryland, College
Park, 3140 Tydings Hall, College Park, MD 20742, USA.
Email: patrickw@umd.edu
1004
American Politics Research 45(6)
lamented the growing trend toward appellate judges who had the same “judi-
cial track” experiences: These judges graduated from the same set of law
schools, clerked for appellate judges, practiced law for a barely tolerable
amount of time, and then quickly became appellate judges themselves. Few
had any electoral experience that might link them to the public and public
opinion. The normative problem Rehnquist and others (Epstein et al., 2003;
Epstein, Martin, Quinn, & Segal, 2009; Peretti, 2007) identified more broadly
is the following: If judges drift too far from public opinion they may forfeit
the judiciary’s legitimacy.
The situation is perhaps even more pronounced today than when Rehnquist
agonized. Of President Obama’s 55 confirmed judges to the U.S. Courts of
Appeals, only three (5.4%) had any previous elected political experience—
and none of them had any experience winning election to federal office.
Remarkably, even when the president enjoyed a 60-vote super majority in the
U.S. Senate in the latter half of 2009, he did not nominate a single person
with prior elected political experience. Contrast that with law clerk experi-
ence: 26 of Obama’s 55 judges (47%) served as a law clerk to a federal circuit
court judge, while 13 (24%) served as a law clerk to a U.S. Supreme Court
justice. Simply put, today’s federal circuit court judges have much judicial
experience but lack electoral experience. What does this mean for the judi-
ciary’s overall link to the public?
In what follows, we address two questions: First, does public opinion
influence circuit court judges? Second, are judges with greater electoral
experience more responsive to public opinion than their colleagues without
such experience? After analyzing roughly 20,000 federal circuit judge votes
from 1960 to 2002, we find that the answer to both questions is yes. Public
opinion influences circuit court judges. Regardless of whether or how long a
judge held elected political office, a change in public mood leads to a change
in most judges’ ideological voting behavior. What is more, the data reveal
that at least among some judges, prior elected political experience exacer-
bates the effects of circuit-level public opinion.
These findings have at least three implications. First, they are the first to
suggest that circuit court judges’ decisions reflect public opinion. Previous
studies found either that judges do not follow public opinion or that they may
even rule contrary to it. After employing more recent and sophisticated public
opinion data, however (Enns & Koch, 2013), we discover that judges do
appear to track circuit-level public opinion. Second, the findings relate to
democratic control over unelected courts. If policymakers favor majoritarian
judges, they should consider appointing judges with electoral experience. If
they value independence, they should eschew such nominees. Third, these
findings can spur a broader debate over the effects of elected experience on
Owens and Wohlfarth
1005
judicial behavior. Indeed, with the recent election of Donald Trump—and
what appears to be an effort to reshape elite institutions—it would seem that
people with elected experience might be, once again, likely picks for federal
judgeships. And our findings suggest they might behave differently than
judges without such experiences.
Public Opinion and Federal Judges
Judges require public support to sustain judicial legitimacy. Though federal
judges are not supposed to follow public opinion like elected political offi-
cials, they may need generally to follow public sentiment, or, as Ruth Bader
Ginsburg once stated, to follow “the climate of the era” (Ginsburg, 2006).
Because federal courts lack an electoral connection to voters, they are bereft
of conventional arguments for legitimacy based on popular sovereignty. So,
judges are in a comparatively weaker position than the political branches
when it comes to justifying their use of power. As Murphy (1964) states, “A
series of wrong or imprudent judgments . . . can undermine public faith in the
[judiciary] . . . ” (p. 20). And the courts need that faith to sustain
themselves.
Along these same lines, even though federal judges do not face elections,
they still must anticipate how officials who are subject to elections will
implement their decisions. If judges go beyond what the public will tolerate,
elected officials will be less likely to implement those decisions faithfully. As
McGuire and Stimson (2004) put it in regards to the Supreme Court,
The Court requires the cooperation of legislative and executive officials, many
of whom are themselves careful auditors of mass opinion. For that reason, the
members of the Court must reflect on how well their preferred outcomes will
be received and supported by implementers. (p. 1022)
There are, of course, other instrumental reasons for wanting to follow pub-
lic opinion. Having previously followed public opinion might help the judi-
ciary when judges must oppose elected officials (Gibson, Caldeira, & Spence,
2003). Staying generally consistent with public opinion can help judges build
up (and later cash in) that institutional legitimacy (Casillas, Enns, &
Wohlfarth, 2011). At a minimum, a deep reservoir of diffuse support can help
judges weather short-term political storms.1
If Congress’s reaction to the Ninth Circuit’s Decision in Newdow v. U.S.
Congress (2002)2 is any indication of things, it is that in some instances
elected officials and the public can in fact become deeply upset by, and react
negatively to, circuit court decisions. After the Ninth Circuit ruled the words
1006
American Politics Research 45(6)
“under God” in the Pledge of Allegiance were unconstitutional, “public opin-
ion turned strongly against the court’s decision and a swift congressional
response ensued” (Hooper, 2005, p. 511). Members of Congress responded
by proposing a number of court-curbing bills. If such bills reflect public dis-
approval (Clark, 2009), the public strongly opposed this decision. And while
it was, to be sure, a unique decision, it seems reasonable to believe a court
that repeatedly issues countermajoritarian decisions will stir up discord and
attract negative attention. So, judges might need to consider the broad con-
tours of public opinion.
Certainly, it is not necessary that the public actually knows about the cir-
cuit courts’ opinions; all that matters is judges believe they might. Indeed,
politicians regularly make decisions based on the threat their actions might
receive significant attention (see also, Black, Owens, Wedeking, & Wohlfarth,
2016a, 2016b; Enns, 2016). As Key (1961) explains of policymakers,
Even though few questions attract wide attention, those who decide may
consciously adhere to the doctrine that they should proceed as if their every act
were certain to be emblazoned on the front pages . . . and to command universal
attention. (p. 266)
Arnold (1990, p. 68) makes a similar argument. He suggests, “Latent or unfo-
cused opinions can quickly be transformed into intense and very real opin-
ions with enormous political repercussions.” Further, even if the public is not
familiar with circuit court decisions, an uninformed public can be alerted to
them by politicians and other elites.3
Only two studies of which we are aware have examined the effect of
public opinion on circuit court judges. M. E.K. Hall, Kirkland, and Windett
(2015) find that circuit judges rule counter to national mood because liti-
gants increasingly file lower quality suits. That is, in their view, the rela-
tionship is driven by docket...
To continue reading
Request your trial