Public Opinion and Setting the Agenda on the U.S. Supreme Court

Published date01 May 2020
Date01 May 2020
Subject MatterArticles
American Politics Research
2020, Vol. 48(3) 377 –390
© The Author(s) 2019
Article reuse guidelines:
DOI: 10.1177/1532673X18822312
Whether and why the U.S. Supreme Court responds to public
opinion has been a cornerstone question in American politics
for decades. However, to date, literature in political science
has sought to answer this question exclusively at the merits
stage—does the Supreme Court follow public opinion when
deciding how to decide—while ignoring the impact of public
opinion on the other stages of the Court’s decision-making
process. This project takes a step toward filling that void by
examining whether the Supreme Court follows public opin-
ion when it decides whether to decide. I find justices are
forward-looking in their consideration of public opinion and
the agenda-setting stage. Specifically, justices vote to review
cases where their preferences on the merits of the case align
with public opinion and avoid cases where their preferred
policy would be out of step with what the public wants.
However, the effect of public opinion heightens in salient
issues and when public support for the court is low; the effect
is depressed when a case has certain legal characteristics
which strongly counsel a grant.
These results have normative and empirical importance.
While legal scholar Robert Post once described Constitutional
law as an “expression of the deepest beliefs and convictions
of the American Nation” (Schauer, 2005, p. 10), this can only
be true if the High Court is answering the questions that are
most important to the American people. Tim O’Brien wrote,
“there is no greater barometer of what is on the minds of the
US population than the docket of the US Supreme Court”
(quoted in Johnson & Goldman, 2009, p. 39).Indeed, whether
the Supreme Court acts as a majoritarian institution stands as
one of the cornerstone issues in American politics, lying at the
center of debates about constitutional and democratic theory,
institutional legitimacy, judicial behavior, and the separation
of powers.
The Court’s responsiveness to public opinion at the
agenda-setting stage may also have meaningful implications
for our understanding of the relationship between public
opinion and justices’ votes on the merits. There is more than
a decade’s worth of evidence to suggest that the Court largely
decides in the ideological direction of the public’s mood. If,
as I argue below, justices consider the pressure of public
opinion as early as when they are deciding which cases to
grant, the congruence we observe between case outcomes
and public opinion may result as much from strategic selec-
tion as it does from the justices bending to the general will.
What is more, the political irrelevance of the majority of the
Court’s docket that many scholars have pointed to could
itself be an indication of judicial responsiveness to public
opinion (see, e.g., Schauer, 2005); the justices choose to
avoid potential conflicts with the public by avoiding impor-
tant cases.
822312APRXXX10.1177/1532673X18822312American Politics ResearchBryan
1Loyola University Chicago, Chicago, IL, USA
Corresponding Author:
Amanda C. Bryan, Assistant Professor, Department of Political Science,
Loyola University Chicago, 1032 W. Sheridan Road, Chicago, IL 60660,
Public Opinion and Setting the Agenda
on the U.S. Supreme Court
Amanda C. Bryan1
Arguably the most influential power the U.S. Supreme Court has is the power to choose which cases to decide. This power
allows the nation’s only unelected branch of government to choose either to weigh in on key political controversies or
avoid them completely. Here, I take one of the first case-level looks at the role of public opinion in the Court’s agenda-
setting process. I argue justices vote to hear cases when they are likely to agree with public opinion on the outcome and
eschew cases when they are out of step with the American people. However, the effect of public opinion depends on the
political environment, especially on the level of public support the Court enjoys, the salience of the issue, and the case’s legal
Supreme Court, public opinion, agenda setting

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