By Jennifer Nicoll Victor, Ph.D., George Mason University
To the extent that the decisions of the Supreme Court and public opinion are associated together, scholars have demonstrated that political institutions, including the Supreme Court, are dynamically responsive to the public mood, which could be considered a desirable characteristic of a democracy. Today, ideology is a framework to explain Court decisions. However, understanding the ideology of the justices isn’t perfectly predictive.
The Supreme Court and Public Opinion
In 2009, a study revealed that as public support for the Supreme Court declines, the Court strikes down fewer federal laws. A reason for this could be that the Court senses a need to stay in the good graces of the public and avoid being overly contrarian, as a way to maintain its legitimacy. On the other hand, it could also be that the Court, made of human beings living in society, is simply reflective of where the public is.
The political scientist James Stimson (University of North Carolina) has studied public mood for many decades. In 2019, he revealed that over the past four years there has been a sharp uptick in the public mood toward more liberal policies.
This is a transcript from the video series Understanding the US Government. Watch it now, Wondrium.
Judicial Activism Versus Judicial Restraint
Under the theory of judicial activism, courts take an expansive view of judicial power, suggesting that judges and justices should make decisions that have strong, lasting, and meaningful effects on everyday life in the United States.
For much of the latter half of the 20th century, judicial activism was associated with ideological liberalism, largely because of the strong role that the courts played in establishing and protecting civil liberties through the US Civil Rights Movement. And this trend continued with follow-up movements that focused on various forms of social justice, such as environmentalism and women’s rights.
On the other hand, judicial restraint suggests that courts should primarily respect existing precedents and avoid taking monumental action. This theory suggests that courts should not make decisions as if they are policymakers and that policy formation is best left to legislative bodies.
Through the latter half of the 20th century, the theory of judicial restraint was most closely associated with ideological conservatism, largely because late-20th century conservatism was nominally focused around traditional ideas and protecting the status quo. The theory of judicial restraint is consistent with a strict constructionist perspective, meaning that judges should only look to the words as they are written in the Constitution and apply their meaning.
Learn more about the changing state of American democracy.
The Supreme Court in Different Eras
During the Civil Rights era from about the 1950s to the 1980s, the Supreme Court played an active and critical role in advancing civil rights and civil liberties for a number of sub-populations in the US. Many have argued that without the influence of several key Supreme Court decisions, the Civil Rights Movement itself would not have been as successful as it was.
But beginning in 1980, things began to change. America had 12 years of ideologically conservative presidents with Ronald Reagan and George H.W. Bush, and together they made six appointments to the Supreme Court. It was during this era that a clear ideological pattern began to emerge on the nine-member Court where a bloc of four conservative justices voted together, a bloc of four liberal justices voted together, and a swing justice was pivotal in many cases.
Where Appointees Voted Together in the 2000 Court
In the Court’s 2000 term, Justice William Rehnquist, a Nixon appointee who was elevated to Chief Justice by Ronald Reagan, and conservative Clarence Thomas, a George H.W. Bush appointee, voted together in 99% of all cases. In fact, Rehnquist, Thomas, Antonin Scalia, and Anthony Kennedy often voted together as a block around the turn of the century.
In 2000, the Court heard a critical case, Bush v. Gore, that helped to settle legal uncertainties and irregularities arising from the presidential election that year. In that case, O’Connor sided with the conservatives in a five to four vote that handed the presidency to George W. Bush.
All told, in that term, about one-third of cases were decided by five to four votes. When Justice O’Connor retired in 2006, Anthony Kennedy became the swing justice, shifting the median vote of the Court a bit to the right. Justice Kennedy retired in 2018, and today’s Supreme Court has a solid block of five conservatives and four liberals.
Learn more about where the Supreme Court meets politics.
A Brief History of the Supreme Court
Looking at the Court just prior to Kennedy’s retirement, in its 2017 term, there were many five to four decisions and they all favored the conservative lean on the Court. The Court’s 2018 term looks different, but perhaps not in the way one might expect if ideology explains everything.
Looking at the five to four decisions in the 2018 term, half of those favored the conservatives, and half favored the liberals, generally speaking. In fact, the Court set a record in its 2019 term for having the most variety in the various blocs that formed over the course of the term. So, both liberals and conservatives on the Court have defected from the traditional alignments that were observed so strongly at the end of the 20th century.
This means that in recent years there is no swing justice on the Court, at least not in the way that O’Connor and Kennedy played that role for so long. All told, the majority of decisions that the Court hands down are now falling in a conservative direction, given the balance of ideology on the Court, but the justices that make up the conservative majority on any given case are not always the bloc that one might expect.
Ideology is therefore a useful way to understand the Supreme Court and its decisions, but it is far from the most predictive, at least when looking at the current Court.
Common Questions about the Supreme Court and Public Opinion
In 2019, political scientist James Stimson revealed that over the past four years there has been a sharp uptick in the public mood toward more liberal policies.
Under the theory of judicial activism, the Supreme Court should make decisions that are strong and long-lasting enough to significantly affect everyday life within society.
According to the theory of judicial restraint, the Supreme Court might not act as a policymaker and should leave policymaking to legislative bodies.
