Elite Rather than Popular Opinion Influences the Court

For forty years, constitutional law has been dominated by the countermajoritarian difficulty—the concern about the capacity of the Court to flout the popular will. A strong version of this critique flows from the fear that the justices follow their own policy preferences in important cases, something that seems illegitimate since they are not elected. One response to the countermajoritarian difficulty is to dispute this premise and argue that actually the Court as a whole tends in relatively short order to follow the will of the popular majority. Barry Friedman’s The Will of the People is the most recent and articulate defense of this position.

But in an excellent article in the Georgetown Law Review, Neal Devins and Larry Baum show that Supreme Court justices respond at most indirectly and very imperfectly to the majority of citizens. They look at some of the evidence, comparing the Supreme Court decisions with popular opinion. They confirm what I had long suspected: the reason that law professors have been persuaded that the Court follows popular opinion is that they confuse the will of the majority of people with the will of the majority of law professors! The Supreme Court is much more influenced by the views of elite than the people as a whole. Indeed, the justices can remain impervious to majority opinion for a very long time.  The Supreme Court banned formal prayers in public schools in 1962, but decades later most people believed beginning the day with a plea for divine help would be just fine.

But the even more important part of Devins’ and Baum’s article is its demonstration of the mechanism that encourages judges to pay attention to elites. The explanation lies in social psychology. It is from elite peers that justices receive recognition, awards and praise. Given that the justices have life tenure, it is hardly a surprise that fame and fellowship will be driving forces.

Sadly, this mechanism also explains why modern justices have mostly drifted left. As others have shown, the legal profession and the legal academy in particular lean sharply left and the profession and academy are mostly in charge of the honors justices can receive.

Thus, the influences that justices face provide yet another reason that the Federalist Society is so important for the rule of law and the cause of liberty. Popular opinion will not prevent even justices appointed by Republican presidents from giving up on the principles that got them appointed. But a legal counterculture can furnish the kind of fellowship and respect that helps them resist temptation.

In a subsequent post, I will offer my own response to the countermajoritarian difficulty.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on October 09, 2015 at 10:55:00 am

To this chemical engineer you are lamenting the waning decades, perhaps only years, of Judeo-Christian dominance in American law and the sooner your admit it to yourself the sooner you can do something positive for a civic people—help contribute to PL&DG.

This is not a recent development. It started on June 21,1788 when the American elite, such as scholar James Madison, reinstituted Chapter XI Machiavellianism into American governance after only nine months proposed exclusion (September 17, 1787). The Prince, Chapter XI informs that a state-church partnership can live high on the hog and do whatever they want with the people and the people will neither rebel nor leave the country. Since 1789, when Congress hired their chaplains, this land of exceptionalism has declined to the point that well-being of the inhabitants is lowest among the advanced countries of the world.

How foolish was G. W. Bush's regime to look at the First Amendment's religion clauses and remark, "Hey, fellows, this sentence limits Congress. We can create faith-based budgets and they can't touch us." Of course, the Constitution does not authorize the president to legislate--only to manage funds for what Congress legislates, but that's a law-scholar's issue that would have to make its way to the Supreme Court. Regardless, that was an elite-regime maneuver with populist appeal.

How foolish was Congress to base DOMA on Judeo-Christian tradition? How much were the elites influenced by popularism? A primary-school civics student could perceive religious basis to be unconstitutional. What fools the Congress takes a civic people to be! As foolish as Chapter XI Machiavellians.

And the Supreme Court has so many limbs of opinion about its opinion one cannot guess where the next Dred-Scott-like embarrassment will fall. Is it Greece v Galloway, wherein the people are told that legislative prayer is for legislators [I guess to make elected and appointed officials feel divine] and citizens who object are welcome to either step out of the room during the ceremony or just stay in their seat without niggling (that's Justice Kennedy's view)? Will the court ever consider a child a person and therefore entitled to dignity and justice? Or will the court always hold children subjects of adult contracts?

There's a way out of America's scholarly-law mess. Evidence-based strategy is insufficient. As we see with issues like global warming, evidence can be biased to suit a party's agenda, However, physics, from which everything emerges does not yield to evaluations, opinion, faith, reason, words, force, law, intellectual constructs or any other human endeavor.

Physics--energy, mass and space-time, from which everything emerges--exists and humankind has the noble duty to discover the emergences and how to benefit from them. Thereby, ethics is determined (without scholarly opinion).

When the discovery has not occurred, but action is needed anyway, it may be clear that opinion is necessary. However, opinion will not be confused with conflict about what has been discovered and understood. For example, the marriage between a man and a woman can be justified on physics rather than Judeo-Christian tradition. Yet same-sex unions can be celebrated by a civic people because the persons are in love (with or without consideration of their bodies) and want to celebrate their commitment to each other.

Under physics, rather than either under a god, the subjugation of children remains a separate issue, because it cannot be swept under the rug of scholarly opinion. Are the elite responsible for this injustice to the persons who are children—the most vulnerable among We the People of the United States?

read full comment
Image of Phil Beaver
Phil Beaver
on October 09, 2015 at 10:56:15 am

Not to mention the desire to be included on the guest list for Georgetown cocktail parties.

Interesting to note that prior to the Chief's first Obamacare decision, he had some extended discussions with one of his old law professors. What effect did this have - certainly somewhat different than if he had sat down and had a nice glass of cabernet with me or anybodyelse.really!

read full comment
Image of gabe
on October 09, 2015 at 10:59:50 am

Still looking for that good ole' "unified field theory, are we?

Physicists ain't found it yet; I doubt lawyers, ethicists or moralists will. It is even more certain that physi-lawyers will not!

read full comment
Image of gabe
on October 09, 2015 at 23:16:01 pm

[…] new law article review suggests that U.S. Supreme Court justices are influenced more by the opinions of political elites than by the majority opinion of the […]

read full comment
Image of Links for 10-9-2015 | Karl Heubaum
Links for 10-9-2015 | Karl Heubaum

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.