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Supreme Court Approval Ratings and the Legitimacy of Judicial Power Revisited:

In his latest post, Orin argues that the Supreme Court's high approval ratings don't have much relevance to our debate over the legitimacy of judicial review because the Court rarely strikes down popular laws and in particular rarely strikes down federal laws. Therefore, he claims:

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.

To my mind, this is a significant revision, or at least clarification, of the position Orin staked out earlier in our debate. At that time, he argued that legislative enactments in general - not just federal laws - deserve heavy deference from judges because they have a special "legitimacy" derived from having a "closer connection to the consent of the governed." For this reason, among others, he argued that we must reject theories of constitutional interpretation that would lead judges to invalidate "lots of laws."

Now, Orin seems to be arguing that only federal laws, and perhaps only popular federal laws, deserve such deference. Thus, at least in so far as "legitimacy" is concerned, he should not object to the judiciary striking down "lots of laws" so long as those laws are either state laws or federal laws that lack strong majority support. This is an extremely important point. As I explain in this article, widespread political ignorance ensures that the majority of the public doesn't even know about most of the laws that legislatures pass, much less strongly support them. Orin may well be right to argue that the Court's popularity would decline if it started striking down very popular federal laws. However, the vast majority of legislation doesn't fall into that category. Orin's latest post thus implies that there is no harm to democratic legitimacy from striking down the vast majority of laws (though such invalidation might, of course, still be undesirable on other grounds).

I also disagree with Orin's implication in the latest post that striking down federal laws (as opposed to state laws) will necessarily undermine the Court's perceived legitimacy. The Court's approval ratings have not declined significantly over the last 15 years, despite the fact that the Court struck down many more federal laws during this period than did its immediate predecessors. With the exception of a few extremely important statutes, the majority of the public is unlikely to care much more about the invalidation of federal laws most of them have never heard of.

frankcross (mail):
You may be missing the point. Orin's general point, which was very true of the Warren and Burger Courts, though less true today, was that the Court struck state laws that were contrary to national opinion, though not local opinion. This is arguably not countermajoritarian but is contrary to principles of federalism. I think that may have been Orin's point. The debate is over whether the national or local majority should prevail. I think it's clear that the Supreme Court has been a nationalizing force in our society.

On federal laws, the Court doesn't strike down many really significant ones. This arguably is a criticism of the Court's constitutional enforcement, but history generally bears out the Court's reluctance to take on federal laws dealing with highly salient issues.
1.27.2008 11:00pm
Ilya Somin:
You may be missing the point. Orin's general point, which was very true of the Warren and Burger Courts, though less true today, was that the Court struck state laws that were contrary to national opinion, though not local opinion.

That may be Orin's point in his latest post. But it seemed not to be his point in his earlier posts in this debate, when he argued taht judicial invalidation of legislative enactments is generally illegitimate because contrary to notions of popular "consent." If his argument is now limited to popular federal laws, that's a very important modification.
1.27.2008 11:07pm
Jim Hu:
I've been somewhat bewildered by this whole exchange (not surprising, IANAL)...

Doesn't the legitimacy of the judiciary derive not from the popularity of particular laws, but a larger consent of the governed to abide by constitutional government? Thus, while the proper interpretation of the Constitution is an area of controversy, that the legitimacy of the judiciary is based on that ... isn't it?

Thus, what is popular is the larger idea that even the making of laws falls under a set of rules that we've all bought into... or been socialized to buy into. The Constitution probably has higher approval ratings than either Congress or the Judiciary.

Note also that what is popularly supported is often not internally self-consistent, even within the preferences of a particular voter or subpopulation.
1.27.2008 11:27pm
Vermando (mail) (www):
Man, Orin, she's really slapping you around. I mean, that's just a take-down, pointing out the internal contradictions in your own argument. How are you gonna respond to that?
1.28.2008 12:22am
Dave Hardy (mail) (www):
May be hard to say. To my back is about eight feet of Arizona Revisted Statutes. I MIGHT be able to tell you, with guessing, what was in three inches of them. US Code? Probably more like forty feet, and despite working in the federal goverment for a decade, it'd still be around three inches. For the average person to express an opinion on any specific law, let alone its constitutionality, might be expected a bit much. Which is why polls limit themselves to gross generalities -- "do you think we need more laws against sniffing glue, or not?"

I do agree that the Court, being human, is less likely to strike laws popular (regardless of general popularity) within its social/educational/economic class.
1.28.2008 12:23am
TerrencePhilip:
As I explain in this article, widespread political ignorance ensures that the majority of the public doesn't even know about most of the laws that legislatures pass, much less strongly support them. Orin's latest post thus implies that there is no harm to democratic legitimacy from striking down the vast majority of laws (though such invalidation might, of course, still be undesirable on other grounds).

With this argument, you have driven a stake through the heart of a rather obvious strawman.
1.28.2008 12:31am
Dan Simon (mail) (www):
I can't speak for Orin, but unlike Ilya, I consider a democratic mandate a sine qua non for political legitimacy. And the fact that a shockingly high percentage of Americans agrees with Ilya rather than me, is as irrelevant to my view as the fact that an unsurprisingly high percentage of Ilya's Russian former countrymen also agrees with Ilya rather than me.

Yes, many Americans wish for a Putin-like Supreme Court that "gets things done" (or, at least, what they themselves think needs to be done), and treat any of the Court's outrageous abuses of its power (be it Roe v. Wade, Bush v. Gore, or something else) as a reason to wrest that power for themselves and their allies, rather than a reason to transfer it to a more democratically accountable body. That's a comment on America's weak democratic culture, not on democracy itself.
1.28.2008 1:14am
OrinKerr:
Ilya,

I just returned from a flight from California and it's 4 am, so I will have to wait until tomorrow to respond, but your characterization of my argument is, well, bizarre. You write, "Now, Orin seems to be arguing that only federal laws, and perhaps only popular federal laws, deserve such deference. " Huh????? Where on earth are you getting that???

As best I can tell, you seem to somehow be equating "consent of the governed" with national popularity, and you seem to be assuming that everyone else sees those two points as the same, as well That is, you seem to be assuming that if I say the Supreme Court is doing something popular, then I am implicitly also saying that I approve of it because it is somehow democratic. But I have never said such a thing, and I find such reasoning difficult to even comprehend, much less to agree with. My point was quite different: the Supreme Court has taken on a role very different role from the one that you are claiming it should. Given that, it doesn't make much sense to say that the proof that the public supports your view of the Supreme Court's role is that the public approves of the current Supreme Court.
1.28.2008 3:59am
veteran:
I came across this group We the People Foundation that appears to be petitioning the court on First Amendment right of the people to a redress of grievances. Where does this fall?

January 13, 2008

U.S. Supreme Court Denies Certiorari

The emergency motion requests a Certificate of Agreement from the Second Circuit, which would have the Second Circuit declare that it agrees that the Supreme Court should reconsider its decision and grant certiorari in We The People v United States (Right to Petition case), because the fundamental questions presented by the People in We The People v United States are similar to those raised in United States v We The People (6700 case), and because the denial of Certiorari by the Supreme Court leaves the Second Circuit without any relevant case law to guide it in deciding its case.
1.28.2008 7:05am
Brett Marston:
The Court's approval ratings have not declined significantly over the last 15 years, despite the fact that the Court struck down many more federal laws during this period than did its immediate predecessors.

I agree with Orin. Ilya might be right that an activist judiciary along originalist grounds would enjoy the same public perceptions of legitimacy as the current judiciary. But the data comes from studying courts that have operated in a very different fashion.

Just because people like baseball today doesn't mean they'd like it if you added a rule that expansion teams can only win if the margin of victory is 5 runs or more.
1.28.2008 11:07am