The Supreme Court has no real power — at least, not without Americans' trust.
Congress and the White House control money and military. The nine black-robed judges govern only the written outcomes of legal cases, with no guarantee of enforcement by state, local or federal agencies. As Justice Felix Frankfurter put it in a 1962 dissent, "The Court's authority — possessed of neither the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction."
Legal and political scholars have struggled to understand the roots of that confidence, and to describe its ebb and flow in the wake of high-profile cases and across political eras. A new Social Science Journal paper wades into the complex debate, arguing that controversial Supreme Court decisions may influence not just citizens' opinions of an issue but the way they feel about the court itself.
Most Americans pay little attention to the Supreme Court. In one 1989 poll, for example, 71 percent could not name a single justice, though a majority were able to provide the name of the judge on television's "The People's Court" (at the time, Judge Joseph Wapner). One reason they don't know much is that court decision-making is relatively opaque; only during the past few years have justices allowed audio recording of oral arguments.
Nevertheless, public confidence and approval of the court remains extremely high, often hovering in the 60 percent range, as much as double that of the president or Congress. It ranks among the most well-regarded high courts in the world, as measured by citizen opinion.
Even in a political climate rife with partisanship and rancor — such as the current one — the confidence numbers don't drop much, and always climb back up. Theories abound as to the reasons behind this reverence, with many researchers pointing to legitimizing symbols that place the court above mud-slinging politics, such as a high bench backed by a purple curtain, and the deferential titles of "Your Honor."
That's one among many open questions about the relationship between the court's cases, public opinion and government action. Kansas University professor Donald Haider-Markel and graduate student James Stoutenborough examined one of them: how court decisions affect people's confidence in the institution.
In an earlier study, they examined the aftermath of cases involving gay civil rights. The researchers noticed that after Bowers v. Hardwick, a 1986 decision that affirmed a Georgia sodomy law, American confidence in the court seemed to increase. Yet after 1993's Lawrence v. Texas, which overruled Bowers and struck down similar laws, it looked as if confidence had dropped, presumably because many Americans disagreed with the decision.
Previous research by others found decreases in public confidence after controversial cases, but few had examined the idea that when people agreed with the opinion in a controversial case, their confidence in the Supreme Court might increase — perhaps allowing the institution to build political capital.
For their recent research, Haider-Markel chose nine high-profile cases centered on salient political issues such as gay rights, abortion and the death penalty, then searched for patterns in post-decision public opinion.
As in earlier studies, Haider-Markel demonstrated that several factors contribute to individual confidence in the court: a person's beliefs about federal government as a whole, their education level, even their race. Among the country as a whole, though, the results in most of the controversial cases significantly altered public confidence levels, often for several months after the decision. The well-known 1973 Roe v. Wade abortion rights case, for instance, was associated with a 7-percentage-point confidence increase.
Although Haider-Markel and Stoutenborough were the first to examine aggregate- and individual-level confidence across 30 years of court decisions, some argue their data may apply only to short-term beliefs.
Washington University in St. Louis professor James Gibson said basic measures of confidence don't reveal much about Americans' core faith in court legitimacy. He favors tracking people's opinions on changing the structure of the court, such as adding term limits for justices (who, as only about half of America knows, are appointed for life). Gibson claims confidence is too vulnerable to political winds or short-term opinions, and that his tests are better measures of enduring beliefs.
"One might agree or disagree with a case but still believe the integrity of the institution ought to be maintained," Gibson said.
As recently as 2000, when the Supreme Court stepped into electoral politics, effectively deciding in a split vote that George W. Bush would become the next president, many feared that the court's legitimacy in the eyes of the public would decline. In his dissent in Bush v. Gore, Justice John Paul Stevens wrote: "Although we may never know with complete certainty the identity of the winner of this year's Presidential election, the identity of the loser is perfectly clear. It is the Nation's confidence in the judge as an impartial guardian of the rule of law."
Those worries proved alarmist — several studies, including Haider-Markel's, showed little if any post-decision drop in confidence in the court, even among African Americans, the group seen by many as most wronged by the decision.
"If it didn't happen with Bush v. Gore, it's not going to happen," Arizona State University professor Valerie Hoekstra said, summarizing conventional wisdom on the likelihood of a precipitous drop in confidence due to a controversial decision.
Nevertheless, some court watchers, including Gibson and Hoekstra, have found another potential threat to legitimacy in an unlikely place: the nomination process. Controversial Supreme Court appointments aren't new, but interest groups have begun spending millions of dollars on advertisements that pressure senators to vote for or against confirmation. Gibson found that during Justice Samuel Alito's nomination process in late 2005 and early 2006, people exposed to these political ads significantly reduced their support for the court.
This might be a small drop, or the beginning of a disturbing trend. Scholars still don't know much about the way the high court responds to the public, or vice versa. "The results over time have been fairly inconsistent," said Herbert Kritzer, a professor at William Mitchell College of Law. "Some people find some effects, some people don't."
Even Haider-Markel acknowledges that his most recent study likely raises more questions than it answers. Until they can find funding for comprehensive, longitudinal panels of subjects, many of those questions are unlikely to be answered soon.