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

• Published date: 01 May 2020
• Author: Amanda C. Bryan
• DOI: 10.1177/1532673X18822312
• Date: 01 May 2020
• Subject Matter: Articles

https://doi.org/10.1177/1532673X18822312

American Politics Research

2020, Vol. 48(3) 377 –390

© The Author(s) 2019

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DOI: 10.1177/1532673X18822312

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Article

Introduction

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

research-article2019

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,

USA.

Email: abryan2@luc.edu

Public Opinion and Setting the Agenda

on the U.S. Supreme Court

Amanda C. Bryan1

Abstract

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

importance.

Keywords

Supreme Court, public opinion, agenda setting