TRENDS: The Supreme Court’s (Surprising?) Indifference to Public Opinion

• Date: 01 March 2021
• DOI: 10.1177/1065912920958080
• Published date: 01 March 2021
• Subject Matter: Articles

https://doi.org/10.1177/1065912920958080

Political Research Quarterly

2021, Vol. 74(1) 18 –34

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DOI: 10.1177/1065912920958080

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Article

Whether the Supreme Court is directly responsive to pub-

lic opinion is a fundamental question in American politics

that has occupied scholars for decades. If justices respond

too easily to the public’s policy preferences, the Court

cannot protect minorities against hostile majorities. This

is the long-standing justification for institutional protec-

tions for federal judges such as life tenure and salary

protection. But when justices declare the law, they are

making policy, and if the policy they make defies the

majority’s will, such policies seem to lack democratic

legitimacy. That is to say, the Court must bite one bullet

or the other: it can respond and risk failing to uphold

Constitutional protections for minorities, or it can ignore

the public and risk democratic legitimacy. It cannot avoid

the choice. These normative challenges have consumed

generations of scholars and are even more pressing today,

as partisan polarization has increased the Supreme

Court’s relative importance as a policy-making institu-

tion and correspondingly heightened the stakes of the

outcome of any given case (Lee 2015).

The normative stakes aside, whether the Court

responds to the public’s policy preferences is an empiri-

cal—indeed, a causal—question. Perhaps the most com-

mon view, often attributed to Dahl (1957), is that the

Court does respond to the public, but only slowly and

indirectly through personnel replacement.

The present political moment finds this indirect method

under intense pressure. Justices are serving ever-longer

terms on the Court, and they often time their retirements so

their replacements will be ideological fellow-travelers.

These developments make it harder for personnel

replacement to keep the Court in step with public opinion.

Calls for judicial term limits, court packing, and the like

are all aimed, ostensibly, at increasing indirect judicial

responsiveness to the public through personnel changes.

As the utility of the traditional indirect mechanism

wanes, the importance of a potential alternative, and

direct, relationship between public opinion and the Court

grows. No fewer than a dozen studies grappling with this

question have been published in our leading journals

since 1993. To date, every prior study except for one has

contended that there is a meaningful (and usually causal)

relationship between Supreme Court outputs and public

preferences.

As these studies either predate or ignore the causal

inference revolution, they usually underappreciate how

difficult it is to identify a causal effect of public opinion

on Supreme Court outputs. It is clear that we cannot ran-

domize public opinion in cases that appear before the

Court. Moreover, the problem of inferring causality from

observational data is thornier for this research than in

most institutional settings because all justices receive the

same “treatment” (i.e., there is no institutional variation

to exploit). Given these considerable hurdles to sound

causal inference, the most that can be said for these prior

958080PRQXXX10.1177/1065912920958080Political Research QuarterlyJohnson and Strother

research-article2020

1Penn State Law, State College, PA, USA

2Purdue University, West Lafayette, IN, USA

Corresponding Author:

Logan Strother, Purdue University, 100 North University Street,

West Lafayette, IN 47907, USA.

Email: lstrothe@purdue.edu

TRENDS: The Supreme Court’s (Surprising?)

Indifference to Public Opinion

Ben Johnson1 and Logan Strother2

Abstract

Does the Supreme Court care what the public thinks? For decades, published articles have consistently reported a

significant, positive relationship between public opinion and Supreme Court output. However, these studies posit

mutually contradictory theories and report irreconcilable results. We advance this literature in two ways. First, we

show that the empirical “fact” driving the search for a workable theory is actually illusory. Second, we defend a theory

of judicial independence. To be clear, we do not attempt to prove the Court does not respond to the public’s opinions

on policy. We argue that there is little reason the Court should respond and demonstrate that, contrary to twenty-

five years of scholarship, there is no good empirical evidence suggesting it does.

Keywords

Supreme Court, public opinion, responsiveness, judicial decision making

Johnson and Strother 19

results is that they seem to have generated a consensus

that the Supreme Court’s outputs correlate with changes

in public opinion, though they are not sure how or why

that relationship exists (Epstein and Martin 2010).

We challenge this conventional wisdom by asking a

more conservative question that actually fits the data:

does the purported relationship between public opinion

and Supreme Court outputs survive close empirical scru-

tiny? The question is conservative in the sense that there

are many relationships that are not causal. If we identify

a robust correlation between public opinion and Court

output, that would establish a relationship, but not neces-

sarily a causal one. On the contrary, if there is no signifi-

cant correlation, then it is harder—if not impossible—to

maintain that there is a causal relationship between pub-

lic opinion and the Court’s decisions. Addressing this

more conservative question, we show that there is actu-

ally no good empirical evidence of a consistent, mean-

ingful relationship between public opinion and Supreme

Court outputs.

The identification problems facing this literature

point us to the proper set of observational research tools

to examine the available data. Taking seriously recent

advances in political science methodology and applying

them to this important topic, we present minimal specifi-

cations of the models, examine the relationship of inter-

est in relevant subsets of the data, and closely scrutinize

interaction terms for empirical validity. These simple

exercises reveal that prior results are misleading artifacts

of model specification.

While there is a significant correlation between pub-

lic opinion and Court output in the full sample of cases,

the correlations are not robust across constitutive sub-

sets of the data. In particular, the relationship is time-

bound: there is no statistically significant correlation

since 1968. Furthermore, the relationship between pub-

lic mood and Court output is remarkably inconsistent

when mediated through a theoretically grounded mea-

sure of case salience, which is the key mediating vari-

able for theories that assert a direct relationship between

public opinion and Court decisions. Finally, the data are

insufficient to properly test models that include interac-

tion effects.

Freed from the need to explain an accepted empirical

fact, we can put theory first and learn from previous

empirical missteps. Drawing on careful studies of the

institutional structure of the Court and contemporary

empirical best practices, we argue there are strong rea-

sons to take judicial independence seriously and estab-

lish hurdles that future attempts to reject the null

hypothesis must clear. Thus, not only do we correct a

quarter century of empirical scholarship, we provide a

path forward.

What (We Think) We Know about

Judicial Responsiveness

For at least seventy years, students of the Court have been

intensely interested in the possibility that the Supreme

Court might pay attention to the will of the people. Today,

the idea that the Court moors itself in the mainstream of

public opinion is well established in the literature (e.g.,

Epstein and Martin 2010; Friedman 2009; Hall 2014;

Mishler and Sheehan 1993).

There are two main theories to explain this phenom-

enon. The theory purporting to explain this connection

between the Court and the public that enjoys the widest

acceptance is the Dahlian, or “Regime,” theory. This

perspective holds that each new Supreme Court justice

is a creature of the dominant governing coalition that

appointed her, because justices are nominated, vetted,

and confirmed by the coalition in power (Dahl 1957).

On this view, the fact that judges and justices are nomi-

nated by presidents and confirmed by the Senate is suf-

ficient to loosely tie the judiciary to the public will.

Today, most scholars agree that the process of appoint-

ment and confirmation induces indirect responsiveness to

public opinion through the slow process of judicial replace-

ment (Flemming and Wood 1997; Giles, Blackstone, and

Vining 2008; Norpoth and Segal 1994).

For our purposes, what is important about this theory

is that it concerns indirect responsiveness. The public

influences the Court slowly and over time as it elects

new leaders who choose new justices who, in turn,

reflect that regime’s policy preferences—and the regime

in power is a reasonable reflection of the will of the

people. As personnel turnover on the Court slows and

justices time their retirements to limit ideological turn-

over, the effectiveness of this indirect pathway will nec-

essarily wane.

Other scholars have suggested that the Court is con-

strained by Congress or public opinion (Epstein and

Knight 1997). On these accounts, the Court cannot go as

far as it would like in some directions because its freedom

is limited by external constraints imposed by Congress or

the public. Such constraints are distinct from respon-

siveness in that they only limit judicial discretion at the

extremes.

The present debate regarding the influence of mass

preferences on judicial outputs primarily concerns the

potential for a direct relationship between the public and

the Court. And to be sure, many scholars contend that

public opinion directly influences the Court’s decisions

(Casillas, Enns, and Wohlfarth 2011; Epstein and Martin

2010; Friedman 2009; Hall 2014).

Most work arguing the Court is directly responsive to

the public does so from a theoretical orientation known as