The New Republic: Supreme Anxiety

The New Republic: Supreme Anxiety
Donald Braman and David Fontana
January 19, 2012

David Fontana and Donald Braman are associate professors of law at George Washington University. The results of their study will be published in the May 2012 issue of the Columbia Law Review.

In late 2010, before the midterm elections, a few thousand people across the United States went online to learn some surprising news. The Supreme Court, they were informed, had recently issued a decision guaranteeing a constitutional right to gay marriage. Gay rights groups had cheered the ruling as a "major step forwards in the history of American civil rights." Opponents, meanwhile, were attacking the decision as a "blow to the people and traditions of the United States and to the importance of the institution of traditional marriage."

Do not fear — you didn't somehow miss a landmark event in the history of American constitutional law. The report was part of a research experiment: We hired one of the most reputable public opinion firms in the country, Polimetrix, to survey a representative sample of Americans. One of the issues we tested was gay marriage. The first group of survey participants read a fictional story in which the Court found that a right to gay marriage was guaranteed by the Constitution. Another group read the same narrative — but this time it was Congress that passed legislation protecting that right. (In each situation, survey participants overwhelmingly believed the development actually happened.)

The purpose of the surveys was to discover whether the American people react differently to a Supreme Court decision on a controversial issue, as opposed to an act of Congress. For at least a generation, many have assumed that the Court provokes a fiercer and more lasting backlash than do legislative institutions. But what if that assumption is wrong?

THE DEBATE ABOUT whether the Court should be making sweeping decisions about American society has a history as long as the country itself and has spawned numerous intellectual camps. But many discussions about the Court return, either implicitly or explicitly, to a single, fundamental claim: that the public has a more negative reaction to controversial decisions when the Court makes them. Those who seek an energetic Supreme Court see it as independent of the sordid machinations of politics and thus intrinsically respected by the public. Those urging the Court to stay away from hot-button issues tend to portray justices as a small cadre of meddling elitists, unpopular with ordinary Americans.

Over the years, the constituencies supporting and opposing a vigorous Supreme Court have shifted with the political winds. During the 1930s, the Court was a powerful impediment to the New Deal Congress, blocking many of Franklin Roosevelt's signature economic efforts. During this time, anti-Court critiques came mostly from the left.

But this shifted during the years of the Warren Court, which played a central role in combating some of America's most intractable social problems. The Court declared racial segregation unconstitutional in Brown v. Board of Education, expanded the rights of criminal defendants in Miranda v. Arizona, and, in the early days of the Burger Court, declared a constitutional right to abortion in Roe v. Wade.

This string of liberal victories caused great alarm among conservatives, and, when Richard Nixon ran for president in 1968, he took direct aim at the "judicial activism" of the Warren Court. Since then, attacks on the Court have proved to be a major — and potent — part of the conservative agenda. As president, Ronald Reagan railed against courts "short-circuiting the electoral process and disenfranchising the people." George W. Bush stated during a presidential debate in 2000 that "judges ought not to take the place of the legislative branch of government." And, this year, Republican primary candidates have proposed various limits on the Court's power to hear certain important constitutional issues.

The onslaught against "activist judges" has had a powerful effect on liberals, too. During the Warren Court era, many liberals believed that the Court should be deciding major issues. Under this philosophy, the Court was an institution less tainted by politics and inherently more principled. And, after all, the Court had proved itself equal to the great challenge of advancing racial equality and women's liberation.

But, in the past generation, significant parts of the left have moved away from this narrative of a heroic Supreme Court changing the country for the better. Now, some liberals argue that, while Brown v. Board of Education furthered the cause of racial equality, it did so at the cost of unnecessarily alienating the public. Similarly, Roe v. Wade created a backlash that might have even helped create the modern evangelical and conservative movements.

As a result, the most significant intellectual trend on the constitutional left in the recent past has been the trend toward "popular constitutionalism" — the idea that the Court should leave more major issues to popular institutions like Congress. Many leading thinkers on the left — from Harvard Law School Professor Mark Tushnet to Stanford Law School Dean Larry Kramer, among others — have argued for a lesser role for the Court in interpreting the Constitution. (Not all of these arguments are based on strategic grounds; some scholars believe it is preferable for the legislative branch to make landmark decisions, because it is more directly democratic.)

Likewise, liberal activist groups have become more wary of seeking justice via the courts. Many leaders in the gay rights community, for instance, have been reluctant to take gay marriage to the Court. And, for a time in 2007, the No. 1 book on The New York Times best-seller list wondered whether, "in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy." The author was the junior senator from Illinois, Barack Obama.

MANY ACADEMICS have tried to answer the question of what the public thinks the Supreme Court's role should be. But it is hard to make convincing claims about counterfactuals. What would have happened if the result reached in Brown or Roe had come via a congressional statute rather than a judicial opinion? Some great scholars have provided thought-provoking answers to such questions, but in the end their answers have real limitations.

To date, a major part of the discussion has assumed that the public has an unfavorable reaction to the Court that is very different from its reaction to Congress. Our research found that the reality is more complicated. Americans of all stripes — conservative and liberal, pro-gay and anti-gay, pro-gun and anti-gun, political junkies and political neophytes — do not have a more detrimental reaction to big decisions just because the Court made them.

Consider the question we posed to Americans about whether the Supreme Court or Congress should decide the gay marriage question. When supporters of gay rights were told that the Court had ruled in favor of gay marriage, they were much more likely to say that the Court should make such decisions, rather than Congress. But, when they were told Congress had ruled in favor of gay marriage, they were also more likely — by similar proportions — to say that Congress should play this role instead of the Court. The same dynamic prevailed in reverse for gay rights opponents. When told the Court had ruled in favor of gay marriage, they disagreed that it had the right to do so — but they also said the same thing if the decision was made by Congress. This poses a challenge to the notion that, for strategic reasons, activists should push for gay rights via Congress rather than the Court. Ultimately, it seems likely that both supporters and opponents of gay rights will focus on the outcome, not the institution that arrived at it.

We also tested public opinion on a cherished conservative cause to see whether that changed people's feelings about the Court. One group of respondents read a fictional article in which the Supreme Court recognized a constitutional right to carry a concealed weapon; another group read an identical narrative in which Congress granted that right. The same dynamic prevailed. When supporters of gun rights were told that the Court had ruled in their favor, they believed the Court should be making these decisions, and opponents of gun rights disagreed. But, when told Congress has understood the Constitution to protect gun rights, supporters again believed the institution producing their favored result was the right institution to be deciding these issues.

In other words, people's views of our major institutions shift significantly based on whether or not they support what it does. Respondents in our survey were far more likely to think that "judges are not beholden to the political wheeling and dealing of lobbyists in the way that legislators are," for instance, if they liked the judges' decisions.

We did find two ways in which people had different reactions to a constitutional development based on where it originated. Conservatives appear to be moderately more opposed to gay marriage when the Court acts than when Congress acts. However, as liberals are moderately more supportive when the Court acts, these changes cancel each other out. In the aggregate, Americans are no more likely to support gay marriage or gun rights if the Court decided in favor of one than if Congress decided in favor of one.

The Court also affects voter turnout somewhat differently. Regardless of whether the Court reached a conservative or liberal outcome, when the Court issued a major decision conservatives were slightly more likely to vote and liberals were slightly less likely to vote than if Congress had acted. However, these differences in turnout were not major.

EXPERIMENTAL research, of course, has its limitations. We tested two issues, and at one moment in time. We did not include the presidency. We measured general public opinion, but sometimes — in ways that cannot be predicted — the opinions of some matter more than others. Nevertheless, our findings are enough to suggest that how Americans think about the Supreme Court is perhaps not so different from how they think about the rest of the federal government.

This provides us with valuable insight into how our democracy works. But it provides a particularly significant lesson for liberals: Perhaps they have become too fearful of using the Court to advance their goals. In the next few years, many of the great issues of our lifetime will come before the Court — immigration, gay marriage, free speech — and liberals should not be afraid to vigorously press their causes.