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Wednesday, April 29, 2015
Fontana and Braman empirically test the countermajoritarian difficulty
David Fontana and Donald Braman (both of GW) discuss their study showing that, on the question of marriage equality, people do not [ed: oops] care whether marriage equality is established by SCOTUS or by Congress. Opinions on same-sex marriage were unchanged by the institution that established it.
Posted by Howard Wasserman on April 29, 2015 at 10:58 AM in Article Spotlight, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink
Comments
I'm not sure how small the highly informed minority is. But there are other problems. It strikes me that, to the extent ordinary people care about which branch of government is responsible for social change, it's largely because opinion leaders of various sorts get them to care. Certain arguments are available to opponents of, e.g., Roe that wouldn't be available to advocates for abortion bans in a Roe-less world, and the people who worry about courts deciding large social issues believe those arguments can be pretty effective. A study like this doesn't tell you whether arguments of that sort have any popular bite - only whether literally the minute after hypothetical decisions from Congress and the Court, before even processing pundits' takes on cable news, ordinary people would like the one decision less than the other. That's one huge problem with this.
Another, I think, is that at least from their summary of their results, it sounds like they just looked for binary support of and opposition to these hypothetical laws/decisions. I think it's very unsurprising that people who say they support a law guaranteeing gay marriage don't suddenly switch and say they oppose a judicial decision guaranteeing gay marriage. I think most of the negative effects, if there are negative effects, of deciding a question of this kind judicially are seen in the intensity of opposition by people who would oppose gay marriage or abortion rights or what have you no matter how it was achieved - not a change in the number of opponents. This study, at least as they summarize it, doesn't measure that either.
Finally, although it probably wouldn't have made much difference, they're comparing the wrong things. People who say the Court shouldn't decide gay marriage, abortion, etc. don't say they want Congress to decide these issues federally; they say they want individual states to decide and go their respective ways. It would be a little more instructive to compare reactions to gay marriage being provided at the state level to reactions to the Court guaranteeing gay marriage at the federal level.
Posted by: Asher | Apr 30, 2015 4:43:08 PM
In response to Asher: if a backlash against the Court took place only among a highly informed minority, and not among the general public, it wouldn't be much of a backlash, would it?
The thesis that it matters, politically, whether a court or a legislature decides a question like this depends on the premise that _ordinary people_ care about this. That's what these authors were testing. Their results the answer is no.
Posted by: Joey | Apr 30, 2015 11:16:05 AM
So let me get this straight. In 2010, Fontana and Braman found 2000 people who were sufficiently politically ignorant that they were taken in by two fake articles that said Congress somehow mandated same-sex marriage, and that the Supreme Court found a right to gay marriage, respectively. Quoting the piece, "almost all of those taking our survey indicated that they believed them to be authentic in debriefing." Then they asked these sophisticated respondents, in essence, what they thought of the countermajoritarian difficulty. Could it be that the kinds of people who care about the niceties of which branch of government is responsible for social change are the kinds of people who are informed enough to know, in 2010, that the Supreme Court didn't have a gay marriage case in front of it and that there was no way that Congress would (or could) enact some legislation creating a right to gay marriage? Conversely, could it be that the kinds of people capable of being fooled by a fake article sharing the good tidings of congressional gay marriage legislation 5 years ago aren't the sorts of people who care about which branch of government is responsible for what, or who even know what the different branches of government do?
Posted by: Asher | Apr 30, 2015 1:01:37 AM
So let me get this straight. In 2010, Fontana and Braman found 2000 people who were sufficiently politically ignorant that they were taken in by two fake articles that said Congress somehow mandated same-sex marriage, and that the Supreme Court found a right to gay marriage, respectively. Quoting the piece, "almost all of those taking our survey indicated that they believed them to be authentic in debriefing." Then they asked these sophisticated respondents, in essence, what they thought of the countermajoritarian difficulty. Could it be that the kinds of people who care about the niceties of which branch of government is responsible for social change are the kinds of people who are informed enough to know, in 2010, that the Supreme Court didn't have a gay marriage case in front of it and that there was no way that Congress would (or could) enact some legislation creating a right to gay marriage? Conversely, could it be that the kinds of people capable of being fooled by a fake article sharing the good tidings of congressional gay marriage legislation 5 years ago aren't the sorts of people who care about which branch of government is responsible for what, or who even know what the different branches of government do?
Posted by: Asher | Apr 30, 2015 1:01:33 AM
you mean people *don't* care whether... right?
Posted by: anon | Apr 29, 2015 3:04:15 PM
I have never seen anybody supporting rights who cared how they got them; for example, you never see right-wingers wringing their hands at a favorable SCOTUS decision, worrying about a 'liberal backlash'.
Note that Roberts, who has recently made such comments, doesn't have any visible problem making decisions for positions which he favors. In that, he's like Scalia, who has not problem both making decisions in the majority and castigating the majority for daring to do so whenever he's in the minority.
Posted by: Barry | Apr 29, 2015 1:05:21 PM
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