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

Date01 March 2021
Published date01 March 2021
Subject MatterArticles
Political Research Quarterly
2021, Vol. 74(1) 18 –34
© 2020 University of Utah
Article reuse guidelines:
DOI: 10.1177/1065912920958080
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
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
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.
TRENDS: The Supreme Court’s (Surprising?)
Indifference to Public Opinion
Ben Johnson1 and Logan Strother2
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.
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
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

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