The United States Supreme Court and Public Opinion

The unite States self-governing coquette is a unique American institution. It is unique because, strange the individuals fate in the decision maker and the legislative branches of government, the nine justices serving at the highest level of the United States supreme judicature ar insulated in significant dashs from the humankind they atomic number 18 sworn to serve. Most significantly, the justices ar provided lifetime terms following nomination and stoppage. Unlike presidents or members of Congress, for example, the justices do not give way to tire initial world elections or prepare for reelection campaigns.In effect, in many ways, the members of the United States peremptory speak to are insulated from the humanity that they serve in extraordinary and unique ways. This very insulation, in turn, has generated fierce debates among healthy scholars, semi semi governmental scholars, and historians regarding the proper characterization of the kindred in the midst of the United States ultimate romance and frequent assurance and the consequences of disparate characterizations.This essay will argue that the justices of the United States peremptory romance are not nearly as isolated as conventional wisdom and scholarship too frequently assume, that subject field depression affects the justices in a myriad of deeply significant ways, and that adopting a majoritarian model remediate develops the United States supreme act as wholesome as better serving great national policy objectives.In order to subscribe the argument that majoritarian fabric is the preferable model, this essay will explain why analytical frameworks are curiously important in this context, the consequences of the different approaches, and why a majoritarian approach is the better framework for analyzing and discussing the relationship mingled with the United States absolute royal court and universal confidence. B. Why Analytical Frameworks MatterThis deba te is particularly important because these justices, serving for life terms, are elevated to the United States unconditional butterfly as a run of policy-making decisions rather than dexterous meritoriousness or the possession of a neutrally objective discriminatory philosophy. Indeed, it is comm altogether hold by scholars that Judges and scholars perpetuate the myth of merit. The reality, however, is that every appointment is semipolitical.Merit competes with another(prenominal) political considerations, like individual(prenominal) and ideological compatibility, with the forces of support or opposition in Congress and the White House, and with demands for representative appointments on the bases of geography, religion, race, gender, and ethnicity. (OBrien 33) It is this political connection that makes the relationship between the United States ultimate solicit and the American citizenry such(prenominal) an important issue.This is because certain assumptions whitetho rn encourage special interests to pursue political appointments to the Supreme royal court in an drive to circumvent semi in the popular eye(predicate) opinion. For those whom subscribe to the countermajoritarian school of thought, which holds that the Supreme Court is largely immune to man opinion and hardly influenced by general opinion, the belief is that once a nominated justice is confirmed that he or she will be able to issue rulings unhindered by the pressures of public opinion (Davis 4).As a result, this approach encourages deeply political appointments because there is a belief that minority interests can be mature or otherwise protected by a public institution shielded from public opinion this, in turn, encourages potential justices to refrain from expressing their intellect or their opinions h matchlessstly in order to minimize political problems.One scholar has described this dumbing down of a candidates merits thusly A fictive handling of appointments has thus e merged a nominees advocates make his case in the ideologically neutral language of merit, as if the candidates views had no bearing on his selection, (Greenberg, n. p. ) That prospective justices of the United States Supreme Court are compelled to engage in a fictive discourse is some(prenominal) disturbing and contrary to the American ideal of open and free discourse.The confirmation battle involving Robert Bork was illustrative of this type of political battle indeed, rather than focusing on Borks intellectual abilities or merits the confirmation hearings devolved into perhaps the most contentious confirmation battle in modern history. Indeed, as champion leading scholar of the Bork proceedings has noted, highlighting the aforementioned dangers associated with the countermajoritarian framework,Because few knowledgeable observers questioned Judge Borks superior qualifications, opposition to Bork quickly focused on his judicial philosophy. The focus on ideology raised a crucial i ssue as to whether it was proper for the Senate to reject for ideological reasons an otherwise qualified nominee. (Vieira, and Gross vii)On the other hand, for those whom subscribe to the majoritarian school of thought, an increasingly influential approach to the relationship between the United States Supreme Court and public opinion, the belief is that the justices are not only not insulated from public opinion but that public opinion affects the justices good in terms of the types of cases they hold to decide each year (OBrien 165), what legal justifications that justices choose to rely on when deciding particularly contentious cases (Waltenburg, and Swinford 242), and whether to uphold or overturn longstanding legal precedents (Norrander, and Wilcox 707).Such assumptions, that public opinion does matter and that it matters significantly, have several significant implications if they are true. First, selecting politics over merit when deciding whom to nominate to the United Stat es Supreme Court may be overrated much specifically, justices will rasetually be more(prenominal) than sensitive to public opinion than the political alliances that earned them the nomination in the setoff place.They will, after all, be freed of the need to sustain the political alliances after confirmation as a result of their lifetime tenure whereas they will always be judged by public opinion. A case in point was the Republican nomination of Warren Burger. He was known to have been a conservative with a strict construction approach to the interpretation of the United States Constitution. In short, from a countermajoritarian point of view, Burger had retardmed an extraordinarily safe(p) political choice for the United States Supreme Court.The reality, however, was that as the 15th Chief Justice of the United States Supreme Court, Burger began to rule in ways that shocked his initial supporters. Rather than shunning public opinion, as his supporters cherished on issues suc h as race, he has since become known as one of the more activist Chief Judges in the history of the United States Supreme Court. The countermajoritarian school of thought cannot answer for for such a shift in judicial behavior, and this is a major flaw in this particular analytical framework.Burger is much better understood, as is the United States Supreme Court more generally, by employing a majoritarian framework that accounts for public opinion in addition to underlying political alliances or political philosophies. Second, if these assumptions are true, then public opinion matters. That means that studying the United States Supreme Court in isolation, rather than in conjunction with other related social factors such as public opinion, is a flawed approach.The better analytical framework is the majoritarian approach which, though a minority approach, accomplishes ii important objectives. Initially, by accounting for and analyzing more carefully the relationship between publi c opinion and the United States Supreme Court, courts like Burgers can be better understood and better explained in addition, the majoritarian approach legitimizes public opinion as a part of the national debate with respect to legal issues of public interest rather than curb these issues to nine distant justices in a mysterious ivory tower.If one of the main functions of the justices is to safeguard the authenticity of the American constitution, a document conceived of and designed to protect the public generally, then sound policy demands public participation and influence. There are two main questions to be determined. First, does the countermajoritarian or the majoritarian framework better explain how the United States Supreme Court functions? Second, and related to the first issue, which model better contributes to the legitimacy of the United States Supreme Court and its legal decisions.C. Main Questions 1. Countermajoritarian or Majoritarian A Threshold Issue Although the United States Supreme Court is one of the most heavily studied American institutions, there remain significant differences of opinion regarding the nature of the relationship between the Supreme Court and public opinion. One of the more heavy debates among legal scholars, political scientists, and historians centers on whether the United States Supreme Court is in essence a countermajoritarian institution or a majoritarian institution.This debate has important implications. Those that conceptualize that the countermajoritarian model best characterizes the actual function and operation of the United States Supreme Court to a fault range to view the Supreme Court as being largely insulated from public opinion on the other hand those that believe that the majoritarian framework best characterizes the Supreme Court tend to believe that public opinion, to some surviving, affects the function, operations, and the ultimate legal decisions of the Supreme Court.How one resolves this deb ate, therefore, pervasively affects American commandment indeed, Much constitutional discourse is predicated on the assumption that the United States Supreme Court is a counter-majoritarian institution, and prescriptive theories supporting the exercise of judicial review are seen, by some, as having to accommodate that fact. (Solimine, and Walker n. p). Should this fundamental assumption be proven to be incorrect, and there is a growing body of research that suggests that it may be incorrect, then the constitutional discourse and the normative theories that have flowed from the traditional countermajoritarian characterization of the Supreme Court may be similarly flawed and incorrect.In short, a sceptre determination needs to be made. This threshold question, as is relevant to the relationship between the United States Supreme Court and public opinion, is whether the Supreme Court is in fact a countermajoritarian institution as scholars have traditionally assumed or a majoritarian institution as some modern scholars argue. 2. Supreme Court as Arbiter of LegitimacyIn addition and intimately related to the aforementioned characterization debate, scholars have also examined the relationship of the United States Supreme Court and public opinion in terms of legitimacy more specifically, scholars have debated whether and to what extant Supreme Court decisions resolve contentious legal issues legitimately so far as public opinion is concerned and whether and to what extant legitimacy instead results from public opinion affecting the Supreme Court every directly or indirectly.In short, is the ultimate source of legitimacy regarding contentious legal issues the Supreme Court, public opinion, or the interplay between the two? This source of legitimacy debate is made more difficult by the fact that public opinion tends to be more responsive to a narrow range of legal issues or what has otherwise been referred to in the literature as landmark cases such as brownness v. Board of Education, Roe V. Wade, and, more recently, chaparral v.Gore. If this assumption is correct, that public opinion is only concerned with landmark cases, then the scope of academic interrogative must be significantly narrowed to this end, one scholar has noted that if we assume that only the vast national landmark cases affect public opinion, in essence, we are saying that the remainder of the Courts work is inconsequential, at least in terms of public opinion. (Hoekstra 3).An additional set of threshold questions, therefore, needs to address the more precise relationship between different types of Supreme Court cases and public opinion. Is the relationship relevant only with respect to national landmark cases? Does the relationship differ between landmark and non-landmark cases? This, in turn, demands an analysis which examines both the national and local effects of Supreme Court decisions. Indeed, acknowledging that Using national data, it may be manageable to connect cases such as Bush v.Gore to changes in public opinion and support for the Court (Hoekstra 3) one scholar has argued for engaging in a more nuanced analysis that examines localized effects as well by suggesting that beneath the noise may actually be systematic effectsones not comfortably detectable or the same for all citizensbut systematic nonetheless. If citizens learn about different Court decisions based on information available and salient to them, then looking for uniform national level effects is misguided. This does not mean that Court decisions are without national effect.If the Courts effect is more localizedeither in terms of geography or some other processwe might still see the effect of Court decisions on public opinion and that Court decisions might affect support for the Court on a national level. The process is just more subtle and possibly more gradual. another(prenominal) reason to look at local public opinion is that Court decisions frequently require active age nt murder, oftentimes by local officials. If the Court can change public opinion on the issues, or at least cast legitimacy on the policy under review, the probability of successful implementation is greatly enhanced (Hoekstra 3)Thus, in short, a second threshold set of questions addresses the extant to which scholars assume that relationships between the Supreme Court and public opinion are limited to national landmark cases or whether the relationship can be extended according to local effects and conditions. C. Benefits of a Majoritarian Approach The first bring in of a majoritarian approach is rather intuitive more specifically, because legal issues affect the public then the publics opinion ought to be considered.Although this essay also argues that public opinion is relevant in disputes that may not be considered landmark cases, the evidence strongly supports the proposition that public opinion particularly affects national landmark cases and that landmark cases decided by t he United States Supreme Court tend to affect public opinion. What complicates a proper characterization of the court derives from different historical relationships between the court and the United States Supreme Court. Traditionally, the American public did view the justices as enlightened individuals whom didnt require public input.This sort of public trust justified, in the past, the countermajoritarian approach indeed, with respect to general public opinion, the justices were significantly insulated. One leading scholar, paper in 1957, stated that Until recently, the attitude of Americans toward the Supreme Court recalled with singular fidelity that with which, according to Burke, Englishmen of a cytosine and a half ago should have looked upon the institutions of their country We ought to understand it according to our measure and to venerate where we are not able to understand. (Schwartz iii). This concern, this assumption that the public can no long-acting understand the legal issues presented to the United States Supreme Court, is no longer an accurate description of the American public quite the contrary, the public regularly criticizes Supreme Court decisions, it more carefully follows potential and actual nominations to the highest court in the land, and through a variety of groups and organization it attempts to influence the court by presenting friend of the court legal briefs on virtually every type of imaginable case.What has emerged more recently is a United States Supreme Court that is besieged by rather than isolated from public opinion one scholar has noted that even presidents attempt to influence the justices, stating that presidents can influence the Supreme Court beyond the appointments process. (Martinek, n. p. ). From the unemployed mother raise in an abortion issue to competing presidential candidates seeking a favorable ruling the United States Supreme Court has become, for better or worse, Americas arbiter of last resort.This change in the way the public perceives and interacts with the United States Supreme Court is the first reason why the countermajoritarian framework is no longer the best approach for analyzing the justices or the relationship between the Supreme Court and public opinion. The detached veneration of the public is a relic of the past and has been replaced by a greater public awareness. This greater public awareness, however, cannot be overstated to be sure, though Shifting majorities of the public do disagree with many decisions, to the finish they perceive them, or are simply ignorant of the great mass of the Courts jurisprudence. (Solimine, and Walker, n. p. ) There are, therefore, gaps in the publics knowledge about the nature of the Supreme Courts power and the underlying issues. This infirm knowledge, however, does not render public opinion marginal or irrelevant. It simply suggests that public opinion may at times be somewhat irrational both a rational and an irrational public opinion can affect the Supreme Court and the majoritarian approach can be adapted to account for an idealized public which possesses an advanced understanding of complex legal issues and an imperfect public which sometimes reacts in less than informed ways.In short, the majoritarian approach is better able to incorporate the complex interactions between the United States Supreme Court than the rigidly overage countermajoritarian model. In addition to the fact that public perceptions and demands have changed over time, it is also evident that legal precedents have been modified or overturned in response to public opinion. rough of the more well-known cases illustrating this fact have involved controversial issues dealing with racial segregation, abortion, and civil rights more generally.A countermajoritarian framework would assume that the justices would be significantly isolated from the public in cases such as Brown v. Board of Education and Roe v. Wade. Had these justices been insulated, it is entirely plausible that these cases would never have reached the United States Supreme Court, and if they had, that they would have been decided differently. The majoritarian model, on the other, admits that these issues were, to some extant, forced upon the United States Supreme Court and that the justices accommodated public opinion by resolving important national issues.This framework further contributes to an ultimate type of legitimacy with respect to the judicial decisions, even if the legitimacy remains challenged by some members of the public, because it treats the decision as a sort of co-op effort between the United States Supreme Court and the American public. These decisions, in turn affected public opinion. More people accepted racial integration, more people accepted abortion, and more people came to believe that George W. Bush was entitled to the highest office in the land. In Brown v. Board of Education, for instance, the public was badly divided u p regarding issues of racial segregation.While it is true that the modern trend was toward integration the sad fact was that many members of the public, including states, resisted attempts to integrate the races more completely as a result, pressure was brought to bear on the United States Supreme Court. On the one hand, there was a notion that the federal government shouldnt interfere too much in state affairs on the other hand, there was also a growing public credit rating that only a decision by the United States Supreme Court, and not any actions by the executive or legislative branches alone, would settle the issues legitimately across the country (Klarman 348).A countermajoritarian framework would instead assume, and incorrectly so, that the justices themselves suddenly decided that racial segregation was unconstitutional rather than attributing a great deal of credit to the American public. The majoritarian model can both predict and explain cases such as Brown v. Board of Education. D. finding In the final analysis, the United States Supreme Court is best analyzed when accounting for the influence of public opinion on its operational and decision-making process.This necessitates shifting toward a more majoritarian approach that also analyzes why and how legitimacy is often a function of the interaction of the Supreme Court and public opinion rather than the outdated view of the justices as isolated wise-men immune to public scrutiny or understanding. Works Cited Davis, Richard. Electing Justice hangout the Supreme Court Nomination Process. cutting York Oxford University Press, 2005. Questia. 16 July 2009 . Greenberg, David. The unfermented Politics of Supreme Court Appointments. Daedalus 134.3 (2005) 5+. Questia. 16 July 2009 . Hoekstra, Valerie J. Public Reaction to Supreme Court Decisions. Cambridge, England Cambridge University Press, 2003. Questia. 16 July 2009 . 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