The Role of “We the People” in the Courtroom

By Daisy Ni (PO ’21)

As the highest court of the land, the Supreme Court was created alongside our executive and legislative branches to keep their power in check. To do so, the Court’s role requires an immunity from political pressure. The appointment process and life-long tenures of judges, for example, remove the pressures of direct elections and public opinion so judges can administer justice impartially. Such were the objectives of the Framers: as Alexander Hamilton wrote in Federalist Papers Number 78, the “independence of the judges may be an essential safeguard against the effects of occasional ill humors in the society.” However, despite the provisions in place to keep justices distance from political pressure, public opinion can still hold a role in courts.

Most scholars agree that there is a relationship between prevalent public sentiment and outcomes of a court case. Although, researchers debate the nature of this relationship; while some believe the correlation results from causality, others contend that the it is purely correlational. One area where there is consensus though is the role public opinion plays in the selection of judges. Although Supreme Court justices are not elected directly by voters, political actors who nominate and confirm candidates are. Senators, for example, hold positions that are dependent upon public support, and thus may be constrained in their voting behavior by the wishes of their constituents. As such, candidates whose historical ruling patterns align with public favor can gain higher approval ratings around the country, and are thus those who are more likely to be confirmed. Inversely, candidates who are equivocal on hot-button topics can elicit suspicion on the voters’ end, a hesitation which will be communicated to their representatives.

As such, candidates who make it onto the bench usually hold views that are at least partly in line with voter opinion. Since a new justice joins the Court almost every two years, public opinion’s role in the selection process ensures that judges on the Court are up-to-date with changing opinions of the time.

Scholars who argue for a causational relationship contend that judges are driven to consider public opinion by their fear of non-implementation. Because the judiciary body has no implementation powers of its own, the court depends on the cooperation of other non-judicial actors to enforce their rulings. Other actors, however, are usually much more susceptible and dependent on public opinion, often through elections. Cooperation is thus not guaranteed. In Worcester v. Georgia, for example, when the Court  found Georgian law to be unconstitutional, President Andrew Jackson reportedly said, “John Marshall has made his decision, now let him enforce it.” This is an example of how an unpopular decision without support from political elites or the public can result in the decision’s non-implementation.

The theory of non-implementation contends that justices have a vested interest in seeing their decisions enacted. Thus, the Court has to consider how well their rulings will be considered by the public. Unpopular decisions risk more than just non-implementation, however; they risk the very reputation of the court as a legitimate institution. An abundance of court decisions that run contrary to public opinion attracts negative attention and national disapproval, and could undermine faith not only in just the judicial system, but in the entire government. President Trump, for example, has berated the World Trade Organization, calling it corrupt on the basis of his belief that it rules unfavorably against the United States. This indicates that individuals tend to associate an unpopular ruling, one that is personally disagreeable, with illegitimacy, and that the Court needs to retain favor from voters to retain institutional value.

Some scholars remain skeptical that public opinion directly influences court decisions, maintaining that the correlation between public opinion and court outcomes do not equate causation. The “attitudinal model” of judicial decision-making, for example, contends that judges decide cases based on their ideological values and other personal preferences. These attitudes are shaped by an individual’s experience or environment. The theory argues that a judge’s beliefs are influenced by the very same forces that influence public opinion. As such, there is no direct causal link between a judge’s voting behavior and public opinion; public opinion is merely a third factor influencing both variables separately.

The role of public opinion in court cases remains debated. Additionally, it remains to be seen if complete insulation is even desirable, or if the influence of public opinion could be beneficial in any way. Former Chief Justice William Rehnquist summarized the debate well: “No judge worthy of his salt would ever cast a vote in a particular case simply because he thought the majority of the public wanted him to vote that way, but that is quite a different thing from saying that no judge is ever influenced by the great tides of public opinion.”

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