Judicial Legitimacy, Political Polarization, and How the Public Views the Supreme Court

Author(s):  
Michael Zilis ◽  
Rachael Blandau

As of late 2020, the makeup of the U.S. Supreme Court consists of six generally conservative Republican appointees and three generally liberal Democratic appointees, one of the first times such a configuration has occurred in decades. In addition, contentious recent confirmation battles may have fundamentally altered public views about the Supreme Court. When it comes to public opinion about the Supreme Court, understanding the institution’s legitimacy and its relationship with political polarization is critical. Institutional legitimacy is a key currency for political bodies—and courts in particular—even as scholarly conceptions of legitimacy differ from popular commentary on the topic. To understand the nature of public opinion toward the Court in a polarized era, one must distinguish between specific support, a type of short-term satisfaction or approval, and diffuse support, commonly known as institutional legitimacy. Recent developments, including controversial confirmation battles and rulings, suggest that partisan and ideological cleavages may increasingly shape the Court’s legitimacy. Scholarship must continue to grapple with Supreme Court legitimacy in a time of political polarization.

2020 ◽  
pp. 106591292095808
Author(s):  
Ben Johnson ◽  
Logan Strother

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.


Author(s):  
Linda Greenhouse

“The court and the public” argues that a judge’s awareness of public opinion is not only inevitable, but also necessary. Can the Court also influence the public? The long tenures of the justices do not seem to affect the equilibrium in which the Court and the public exist. Public polls show some approval for the Supreme Court in general, rather than its specific actions. However, famously contentious cases such as Roe v. Wade reveal the intersection of public opinion and Court judgment, showing what happens when the Court feels its legitimacy is threatened. Has the Court aligned itself with public opinion over time?


Daedalus ◽  
2012 ◽  
Vol 141 (4) ◽  
pp. 69-82
Author(s):  
Linda Greenhouse

The relationship between the Supreme Court and public opinion remains ambiguous, despite efforts over many years by scholars both of the Court and of mass behavior to decipher it. Certainly Supreme Court Justices live in the world, and are propelled by the political system to their life-tenured positions. And certainly the Court, over time, appears to align itself with the broadly defined public mood. But the mechanism by which this occurs–the process by which the Court and the public engage one another in a highly attenuated dialogue–remains obscure. The Court's 1973 abortion decision, Roe v. Wade, offers a case in point. As the country began to reconsider the wisdom of the nineteenth-century criminalization of abortion, which voices did the Justices hear and to which did they respond? Probing beneath the surface of the public response to Roe serves to highlight rather than solve the puzzle.


2019 ◽  
Vol 83 (2) ◽  
pp. 423-449 ◽  
Author(s):  
Mollyann Brodie ◽  
Elizabeth C Hamel ◽  
Ashley Kirzinger ◽  
Bianca Dijulio

AbstractIn an age of increasing political polarization, the Affordable Care Act (ACA) stands out as one of the most politically divisive pieces of legislation in recent history. Unlike previous laws making changes to the US health care system, public views of the ACA did not improve measurably as people gained experience with the program, but remained deeply divided on a partisan basis in the more than eight years since its passage. In this article, we examine how the complexity of the law, lack of understanding by the public, and elite partisan messaging have contributed to this enduring partisan divide, and discuss what the future may hold for the measurement of public opinion on major health care legislation.


1987 ◽  
Vol 81 (4) ◽  
pp. 1139-1153 ◽  
Author(s):  
Gregory A. Caldeira

I show the intimate connection between the actions of the justices and support for the Supreme Court during one of the most critical periods of U.S. political history, the four months of 1937 during which Franklin D. Roosevelt sought legislation to “pack” the high bench with friendly personnel. Over the period from 3 February through 10 June 1937, the Gallup Poll queried national samples on 18 separate occasions about FDR's plan. These observations constitute the core of my analyses. I demonstrate the crucial influence of judicial behavior and the mass media in shaping public opinion toward the Supreme Court. This research illuminates the dynamics of public support for the justices, contributes to a clearer understanding of an important historical episode, shows the considerable impact of the mass media on public attitudes toward the Court, and adds more evidence on the role of political events in the making of public opinion.


2020 ◽  
Vol 25 (2) ◽  
pp. 13-28
Author(s):  
Dragutin Avramović

Following hypothesis of Andrew Watson, American professor of Psychiatry and Law, the author analyses certain psychological impacts on behavior of judges and examines the relationship between their idiosyncrasies and their judicial decisions. The survey encompasses the judges of Criminal Department of the Supreme Court of Cassation of the Republic of Serbia and, also, for comparative reasons, the judges of Criminal Department of the First Basic Court in Belgrade. Considering the main issues there is no great discrepancy between answers given by the judges of the Supreme Court and those of the Basic Court. Most responses of the Serbian judges deviate from Watson's conclusions, namely: they do not admit that they feel frustrated due to heavy caseloads, the significant majority of judges are reluctant to acknowledge their prejudices and influence of biases on their ruling, the significant majority of judges are not burdened with the idea of possible misuse of their discretion, they nearly unanimously deny that public opinion and media pressure affect their rulings, etc. Generally, the judges in Serbia are not willing to admit that they cannot always overcome their own subjectivities.


2017 ◽  
Vol 13 (3) ◽  
pp. 223
Author(s):  
Thiago Aguiar Pádua

RESUMOEste artigo busca dialogar com recentemente artigo publicado pelo professor Eduardo Mendonça, no qual expõe a percepção de que o desgaste da representação político-parlamentar daria lugar a uma atuação do Supremo Tribunal Federal como representante da opinião pública. Discordamos de sua construção teórica a partir de recurso metodológico da argumentação jurídica. Realizamos análise sobre dois documentos contextualizados de nossa historiografia constitucional, advindos as vésperas de dois períodos de exceção, e que também se fundamentavam no mesmo desgaste da representação político-parlamentar: 1) missiva escrita por Monteiro Lobato em 1924 ao presidente Artur Bernardes, e, portanto, as vésperas da revolução de 1930; e, 2) artigo-manifesto escrito por Goffredo Telles Jr em 1963, e assim sendo, as vésperas do golpe de Estado Civil-Militar de 1964. Articulamos discussão de premissas, utilizando o pensamento do jurista e sociólogo argentino Roberto Gargarella, discutindo as causas do desgaste da representação político-parlamentar, constatando que tal desgaste decorre da forma como as instituições foram desenhadas, de maneira a afastar a cidadania das discussões políticas, por temor do fenômeno democrático. Concluímos constatando que ao invés de se realizar empoderamento de um agente decisório, de duvidosa conotação democrática como o STF, mais adequado seria estimular e fomentar o acesso da população à “Sala de Máquinas da Constituição”.PALAVRAS-CHAVE: Desgaste da Representação Política; Suprema Corte; Opinião Pública; Sala de Máquinas da Constituição.  ABSTRACTThis article is a dialogue with a recently published article by the professor Eduardo Mendonça, which exposes perception that the erosion of political and parliamentary representation would result in a performance of the Supreme Court as a representative body of public opinion. We disagree with his theoretical construction, articulating the critique from methodological analysis of the legal argument. We also analysis two documents of our constitutional history, coming on the eve of two periods of exception, which also were based on the same argument of erosion of political and parliamentary representation: 1) The letter written in 1924 by Monteiro Lobato to President Artur Bernardes, and therefore short before the 1930’s revolution. 2) The article-manifest written by Goffredo Telles Jr in 1963 a few days before the 1964 Civil-Military coup d’état. We articulate a discussion of premises, using the thought of the argentine sociologist and jurist Roberto Gargarella, discussing the causes of the erosion of political and parliamentary representation, noting that such thing arises from the way the political institutions were designed, in order to depart citizenship of political discussions, for the fear of the democratic phenomenon. We conclude noting that instead of performing empowerment of a decision-making agent of dubious democratic connotation, as the Supreme Court, most appropriate would be to encourage and foster the population's access to “Engine Room of Constitution”.KEYWORDS: Erosion of political and parliamentary representation; Supreme Court; Public Opinion; Engine Room of the Constitution.


2018 ◽  
Author(s):  
Maggie Gardner

92 New York University Law Review 390 (2017)When it comes to transnational litigation in the federal courts, it is time to retire the doctrine of forum non conveniens. The doctrine, which allows judges to decline jurisdiction in cases they believe would be better heard in foreign courts, is meant to promote international comity and protect defendant fairness. But it is not well-designed for the former purpose, and given recent developments at the Supreme Court, it is dangerously redundant when it comes to the latter. This Article seeks to demythologize forum non conveniens, to question its continuing relevance, and to encourage the courts and Congress to narrow its scope of application so that, when the time is right, it may be fully interred.


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