The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences

Abstract

With competing assumptions and alternative empirical models, scholars have come to rather different conclusions about the impact of public preferences on the decisions of the U.S. Supreme Court. Some have found the justices to be attentive to mass opinion, while others have judged it to be irrelevant. Across this divide, however, one assumption is widely shared; that is, political scientists generally agree upon how best to measure the Court's outputs. In this analysis, we employ an alternative estimate of the justices’ liberalism, one which we think better reflects the underlying ideological tenor of their policies. With data from 1953 to 1996, we compare time‐series models using different indicators of the Supreme Court's aggregate liberalism. Our results suggest that, in addition to being motivated by their own preferences, the justices are highly responsive to public mood, as well.

On the Relationship between Public Opinion and Decision Making in the U.S. Courts of Appeals

“…Table 1 reveals that neither of the direct measures of public mood achieves statistical significance, leaving us to conclude that courts of appeals judges are not influenced directly by public preferences. These findings not only contrast with our theoretical expectations for the responsiveness of the courts of appeals to public mood, they are also distinct from recent research indicating that the Supreme Court is directly responsive to public mood (e.g., Flemming and Wood 1997;Giles, Blackstone, and Vining 2008;McGuire and Stimson 2004). This suggests that the mechanisms that influence the decision making of justices on the Supreme Court are different from those that influence judicial choice on the U.S. Courts of Appeals (e.g., Martinek 2009).…”

“…13 If courts of appeals judges respond to changes in national public mood, we expect this variable will be positively signed. We have lagged our mood variables in order to avoid contaminating our empirical results from the decision to measure courts of appeals policy outputs that come partially before and partially after changes in public mood, which are measured on an annual basis (e.g., McGuire andStimson 2004: 1028). Thus, while we acknowledge that is theoretically appropriate to expect courts of appeals judges to respond to contemporaneous public mood, we believe it makes good empirical sense to lag our mood variables by one year to control for the temporal relationship between public mood and decision making on the courts of appeals.…”

Competing Models of Judicial Coalition Formation and Case Outcome Determination

“…Even justices who admit to many forms of strategic behaviorsuch as signaling, defensive denials and aggressive grants in certiorari-strenuously deny that logrolling on case outcome voting ever occurs-see Perry (1994)-as is understandable, since logrolling would constitute a fundamental breach of the Rule of Law. Other efforts have also been made to come up with measures of the ideological placement of Supreme Court cases: scholars have used reversals (McGuire and Stimson 2004), and qualitative analysis of language that tends to show up in liberal or conservative opinions (McGuire and Vanberg, 2005). However, this work necessarily relies on often subjective coding.…”

Judges as Fiscal Activists: Can Constitutional Review Shape Public Finance?

“…This is reflected in Justice Frankfurter's famous expression that "the Courts' authority -possessed of neither the purse nor the sword -ultimately rests on sustained public confidence in its moral sanction" (in Baker v. Carr 35 ). Similarly, McGuire and Stimson (2004) claim that judges lack institutional capacities to ensure the full effect of their rulings. Consequently, without public support, their preferred outcomes might be rejected and the Court's legitimacy undermined.…”

“…40 The Eurobarometer (1998) poll, in turn, shows that, 37 Empirical investigation of the U.S. Supreme Court reflecting public opinion is possible due to the availability of public mood indicators, i.e. the domestic policy mood index (see, e.g., McGuire and Stimson, 2004 although EU citizens are willing to increase public health spending, the vast majority are reluctant to increase taxes to this end. The preferred policy is to cut other spending or to finance it by other means.…”