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Supreme Court Approval Ratings and Judicial Review:
In his post below, my co-blogger Ilya writes:
[F]or those who do believe that the legitimacy of judicial review depends at least in large part on the degree to which it has majoritarian support, the Court's very high approval ratings relative to those of the president and Congress are not easy to dismiss. As I argued in my earlier post, they undercut arguments such as Orin's, which hold that judicial review must be strictly limited because legislative enactments have a degree of popular "consent" that the courts lack.
  Well, I wouldn't want to "dismiss" any arguments, but I do disagree with Ilya about the relevance of the Supreme Court's current approval ratings to the debate he and I have been having.

  The key problem is that modern U.S. Supreme Court has acted as a highly majoritarian institution. No matter what power the Supreme Court has in theory, it has very rarely invalidated politically popular laws. This was particularly true in the last decade, when Justice O'Connor was the "swing vote" in most cases. As my colleague Jeffrey Rosen has pointed out, Justice O'Connor's approach was very majoritarian: for the most part she kept the Court's decisions exactly on track with American public opinion. When the Supreme Court effectively "follows the election returns," it is bound to be pretty popular.

  "But wait," you're thinking, "how can the Supreme Court strike down laws and yet also be popular if the people aren't somehow 'consenting' to their laws being invalidated?" There are several reasons, but one is that public opinion polls are national whereas most laws struck down by the Supreme Court are (and traditionally have been) state or local. If a law is very popular in one state or region but unpopular nationwide, striking down the law will both thwart state and local preferences and be popular in national polls. To my mind, this doesn't show that "the people" effectively "consented" to their law being struck down. Rather, it mostly shows that in a federal system, state and national opinion can and often do diverge.
Thoughtful (mail):
I'm not absolutely certain, but shouldn't "No matter what power the Supreme Court has in theory, it has very rarely invalidated politically unpopular laws" be "No matter what power the Supreme Court has in theory, it has very rarely invalidated politically POPULAR laws"? That would seem to capture the point I think you're making.
1.27.2008 9:29pm
OrinKerr:
Corrected, thanks.
1.27.2008 9:36pm
Loophole1998 (mail):
If judicial review truly were a majoritarian function, then there would be no need to have a Bill of Rights, since the Bill of Rights' only purpose is to serve as a protection against the will of the "majority."

And how anti-democratic is it to have the allegedly most-popular vessels of "public" opinion be elites with law degrees from ivy league schools who never have to sit for an election? If they're so smart, why don't we just let them run the entire country? Why limit them to deciding cases. The justiciability rules are so restrcitive!
1.27.2008 9:44pm
MarkField (mail):

If a law is very popular in one state or region but unpopular nationwide, striking down the law will both thwart state and local preferences and be popular in national polls. To my mind, this doesn't show that "the people" effectively "consented" to their law being struck down. Rather, it mostly shows that in a federal system, state and national opinion can and often do diverge.


Sure, but isn't that pretty much the point of the Supremacy Clause? I mean, yeah, striking down laws against segregation was unpopular in Alabama, but that happened precisely because Alabama refused to abide by the rules established nationally and binding on all.

It seems to me the only real complaint could arise if the Court made the wrong decision, striking down a state law improperly. But, of course, that's bad no matter what theory of judicial review you might have.
1.27.2008 10:31pm
Anonymous Hoosier:
Orin: Good point that many of the laws the Supreme Court will strike down are state or local -- any chance you have a cite that quantifies this, though?

(So much for the title of your previous post, though!)
1.27.2008 10:52pm
Dave Hardy (mail) (www):
Without survey (impartial survey) data, it's hard to say. I can't easily recall an invalidation of a very popular law. Some rulings -- Miranda, Aff. Action, may have been less popular than popular. Or do I date myself with Miranda?

It might also be worthwhile to consider popularity with the circles where the humans of the Court associate, rather than among the entire country. No idea how you would compensate for that.
1.27.2008 10:54pm
David M. Nieporent (www):
Without survey (impartial survey) data, it's hard to say. I can't easily recall an invalidation of a very popular law.
I would suggest that many of the Establishment Clause rulings were pretty unpopular.
1.27.2008 11:39pm
U.Va. 3L:
I would suggest that many of the Establishment Clause rulings were pretty unpopular.

I forget the exact numbers he cited, but I remember Prof. Michael Klarman saying in a class I had from him that the Establishment Clause cases were perhaps the most unpopular decisions ever issued by the Supreme Court. I want to say it was somewhere around 65% of the country that disagreed with them.
1.28.2008 12:16am
Larry Fafarman (mail) (www):
Orin Kerr said in the opening post --
"But wait," you're thinking, "how can the Supreme Court strike down laws and yet also be popular if the people aren't somehow 'consenting' to their laws being invalidated?" There are several reasons, but one is that public opinion polls are national whereas most laws struck down by the Supreme Court are (and traditionally have been) state or local. If a law is very popular in one state or region but unpopular nationwide, striking down the law will both thwart state and local preferences and be popular in national polls. To my mind, this doesn't show that "the people" effectively "consented" to their law being struck down. Rather, it mostly shows that in a federal system, state and national opinion can and often do diverge.

Striking down locally popular laws in a lot of different places is going to piss off a lot of people and that would tend to greatly reduce the national popularity of the Supreme Court. On the other hand, striking down an individual locally popular but nationally unpopular law would tend to increase the national popularity of the Supreme Court. So there can be two opposite effects operating here.

Loophole1998 said,
And how anti-democratic is it to have the allegedly most-popular vessels of "public" opinion be elites with law degrees from ivy league schools who never have to sit for an election?

Yes, graduates of ivy league law schools -- particularly Harvard law school -- are grotesquely overrepresented on the Supreme Court. The current Supreme Court has five Harvard law school grads, a Columbia law school grad who attended Harvard law school, and two Yale law school grads. Only one justice graduated from a non-ivy league law school, Northwestern. Also, the last two justices to leave the court, Rehnquist and O'Connor, both graduated from Stanford law school, which is non-ivy league but nonetheless snobbish. I wonder why there have not been more complaints about this lack of diversity on the court.

An interesting case is Kitzmiller v. Dover, the intelligent design case. Most people expected Judge Jones to rule against the school board defendants because of their religious motivations, but there was a lot of negative reaction to the decision because Jones ruled on broad rather than narrow grounds. As a result of this negative reaction, Judge Jones has been criss-crossing the country giving lectures promoting the idea of "judicial independence."
1.28.2008 4:16am
JohnO (mail):
Larry Fafarman:

Interesting that you note the current cult of "judicial independence," which essentially means that it's somehow wrong for members of the other branches of government to criticize the courts because it somehow impairs their independence.

Of course, all this is going on while the Supreme Court issues a decision on New York's judicial election system where the concurrence essentially calls the laws "stupid but constitutional." So, I guess only the judges can take gratuitous shots at the other branches in commentaries not necessary to their decision.
1.28.2008 9:23am
Adam J:
JohnO- Actually, the cult of "judicial independence", as you put it, doesn't think it's wrong to be critical of the court, only that it's wrong to be critical of the court merely for being independent. There's a difference between substantive criticism of a decision and the criticism that they should defer to the other branches simply because they are not popularly elected.
1.28.2008 10:57am
just me:
I think the federal kiddie-porn laws that keep getting struck down are fairly popular, and the contrary decisions unpopular.

Also, many of the state laws that are struck down are not outliers, but are practices that 20 or 40 states have. For example, the partial-birth law struck in Stenberg had parallels in half the States. And those laws often passed with very lopsided 80-20 majorities, as Democrats/liberals who were pro-choice often switched on that one.

I think most of the Court's 4th/5th Amendment cases are unpopular, as the masses tend to dislike anything that lets the guilty go free on "a technicality" like the Constitution.
1.28.2008 11:36am
Adam J:
just me- One might wonder if there is a better way of enforcing Constitutional rights then letting guilty people go free. It certain strikes me as odd that the primary method of protecting several Constitutional rights, the exculsionary rule, directly helps people who are likely guilty, while only indirectly benefiting innocent people through deterring police from violations.
1.28.2008 12:21pm
JohnO (mail):
Adam J:

Well, if it's okay for the judiciary top be above one type of criticism that it doesn't like, then why is it okay for judges to essentially call the work of a state legislature stupid when that observation (correct or not) is completely unnecessary to the Court's opinion?

What about legislative independence -- the right to be free of criticism for being independent of the judiciary and passing constitutional laws that it decides to enact?
1.28.2008 12:39pm
Clayton E. Cramer (mail) (www):

One might wonder if there is a better way of enforcing Constitutional rights then letting guilty people go free. It certain strikes me as odd that the primary method of protecting several Constitutional rights, the exculsionary rule, directly helps people who are likely guilty, while only indirectly benefiting innocent people through deterring police from violations.
Before the exclusionary rule (which was adopted for federal law enforcement early in the 20th century), the theory was that law enforcement officers that broke the law could be prosecuted. It just didn't happen very often, for some odd reason.

I happen to agree with you that punishing law enforcement officers for violating search and seizure makes more sense than letting criminals go because the evidence was improperly obtained. But I don't have much confidence that either of these is going to change.
1.28.2008 1:16pm
Clayton E. Cramer (mail) (www):

I think the federal kiddie-porn laws that keep getting struck down are fairly popular, and the contrary decisions unpopular.

Also, many of the state laws that are struck down are not outliers, but are practices that 20 or 40 states have. For example, the partial-birth law struck in Stenberg had parallels in half the States. And those laws often passed with very lopsided 80-20 majorities, as Democrats/liberals who were pro-choice often switched on that one.
Completely agreed. Abortion was severely restricted in 45 of 50 states before Roe v. Wade--and that wasn't because state legislators were ignoring the drumbeat of demand for liberalization.

If most Americans knew about the Court's continual scrapping of child porn laws, the Democrats wouldn't have a chance of taking the White House this year.
1.28.2008 1:18pm
Adam J:
JohnO - I don't think it's okay for the judiciary to be above one form of criticism. What I think is that it's a weak form of criticism. I don't see anywhere in the Constitution that the Judicial Branch is an inferior branch to the other two branches of government, and therefore it should defer.

Basically, the individuals who are for strict constructionism then go and make the claim that judges should defer to Congress' view of the Constitution, completely ignoring that there's no way the Constitution could be construed to say this. The founders clearly valued having a less democratic branch of government, otherwise they would have had judges elected, not appointed, or they would have in some other way handicapped the judiciaries power. They did not. They wrote nothing in the Constutition to suggest this branch should defer to the other branches. If you want judges to be defer to Congress, you should be advocating an amendment to the Constitution.

Clayton- The reason probably isn't that odd- I suspect the system protected the police, suits probably didn't have much of a success rate. I agree, good luck getting that to pass in the face of the law enforcement unions. As it stands though, I prefer the exclusionary rule to nothing at all (only marginally though.
1.28.2008 2:00pm