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Thursday, June 02, 2016

Who Cares About the Supreme Court?

I have some vague recollection that President Barack Obama nominated Merrick Garland to replace Justice Antonin Scalia, who suddenly passed away a few months ago. But I can't find any news stories recently to confirm this.  Is it true that this happened?

More seriously, the politics surrounding the Garland nomination seem to reinforce one descriptive lesson, and highlight one strategic lesson:

(1) First, the descriptive lesson.  It is really hard to get the American people to care about the Supreme Court.  The data is fairly strong that the public does not follow the Supreme Court too closely.  Cases like Bush v. Gore generate brief interest in the Court, but that interest fades.  Cases that you think might generate broader interest--like NFIB v. Sebelius--do not.  In the days after that decisions, many Americans did not even know the Court had decided the case. The media covered what Americans thought should happen with the Garland nomination, but polling numbers never really suggested that Americans thought this was hugely important.

If ever there was a situation that might attract public interest, one would think it would be the battle to replace Justice Scalia.  Consider the basic facts: a controversial and entertaining Justice suddenly passed away under bizarre circumstances.  This on its own is a compelling enough narrative to have generated a somewhat analogous major motion picture a few decades ago (The Pelican Brief!).  His replacement would be a deciding vote on a Supreme Court deciding more controversial cases over the past five years than in most five year periods.  Within a day of his death, the leader of one political party in the Senate stated his refusal to act on any nominee, and the President aggressively attacked that position.  

With all of these salient realities, though, the Garland nomination is just nowhere in the news.  Before Monday, it had been three weeks since the New York Times seriously mentioned Garland.  There might be reasons that do not recur that explain the absence of interest in the Garland nomination.  We have a presidential contest that features two high-profile and polarizing figures, and it is an election year. Many of the dynamics, though, suggest that it is extremely difficult to get anyone to pay attention to this.  

Why does that matter? That brings us to the strategic lesson.  

(2) There are so many vetogates preventing the nomination and confirmation of a Supreme Court Justice, particularly in such a high stakes situation as the Garland nomination.  To overcome those vetogates, it is important not just to convince Senators how to vote on the issue, but to convince them that they should care about the issue.  There is a massive political science literature on the importance of agenda control, and to overcome vetogates a political faction must get their issue on the agenda as well as convincing others to vote with them on that issue.

How can the Garland nomination become a significant issue? The Obama approach has been to emphasize how obstructing the nomination undermines the very nature of what it means to be the Supreme Court.  A confirmation process focused on the technical merits of the candidate and the technical role of the Court was being threatened by the Republican Senate.  A hearing was held featuring those who could comment on Garland's legal merits talking to Democratic Senators.  There was some evidence that this was moving some Senators, like Illinois's Mark Kirk, but not enough to get them to think this was an important issue.

Does that leave us with the Donald Trump solution? If you want to get the Court on the agenda--which you might need to do to overcome vetogates--do anything to get attention paid to the Court.  Do not just hold a hearing on Garland and invite senators and significant lawyers. Invite Garland too.  Have Garland stand outside of Mitch McConnell's office when the lights are out in his office because McConnell is out at some political event.  Have Garland call in to Morning Joe.  Theater drives agenda control; agenda control overcomes vetogates; does that mean the Supreme Court needs more theater to get a new Justice through sometimes?





Posted by David Fontana on June 2, 2016 at 09:43 AM | Permalink


Thank you for these interesting comments. What is "no news" is not a clear, objective category. What is "no news" is a category that has been defined based on media expectations and norms. When Romney meets with Ryan after getting the nomination in 2012, it is not covered. When Trump meets with Ryan after getting the nomination in 2016, it is covered. When Harriet Miers meets with Senators, it is substantially covered. When Garland meets with Senators, it is mostly not covered. Given media expectations and norms of what constitutes news--and the need for coverage to precede and generate senatorial action--those pushing the nomination have to do something to make it what the media considers to be news. This might not be worth it as a normative matter because of other costs, of course.

Posted by: David Fontana | Jun 3, 2016 3:28:23 AM

"There was a lot of coverage when the nomination first happened, but not since, while coverage persists of plenty of other national political stories (e.g. the presidential race, transgender rights)."

But as Professor Kerr says, the nomination was news, while total inaction on it isn't something that lends itself to reporting. (The presidential race, legislation on transgender rights, the federal response, and the states' response to the federal response all do.) I'm not sure what new stories news outlets can write about the nomination. There are some attention-grabbing things Obama, the nominee, or Senate Democrats could do if they really wanted to, but they aren't doing them. Additionally, the Court hasn't imploded; while a couple cases seem to have been affected by the vacancy outside of the two 4-4 ties, very, very few people care about Spokeo or even Little Sisters, or Friedrichs for that matter, outside of a subset of engaged public employees, and it's hard for the media to explain how Scalia's vacancy is causing cases to be decided on broad but shallow grounds. If the term ends in a series of spectacular ties, that will generate some coverage. I guess you could argue that governmental inaction gets a lot of attention in other contexts, which you'd then say must be more salient - like Congress's failure to pass a budget (or CR, nowadays). But really, that only becomes news when it triggers or threatens to trigger a shutdown, and you don't need to conclude that the public doesn't care much about the Court to see why a shutdown would get more coverage than a vacancy on the Court in a year when the Court isn't deciding many huge cases.

Posted by: Asher Steinberg | Jun 3, 2016 2:18:22 AM

I'm thinking JUDGE Garland doesn't want to play TOO much theater games though his willingness to spend as much effort as he is now in what might be a doomed effort is probably a factor in his selection. He'll do the senator meet-ups; not so much the appearances on Morning Joe or Charlie Rose.

Perhaps, the better idea there are for Democrats to do creative things to call attention to the situation. Anyway, I'd be interested to know how much traction this is getting in close Senate races. Your overall point on low interest appears valid. Would it help if they knew Sotomayor and RBG just had a special conversation on SCOTUS and food? This reporter live tweeted:


Posted by: Joe | Jun 2, 2016 12:32:50 PM

Word of the day: vetogate

Posted by: Joe | Jun 2, 2016 12:18:50 PM

Let me add two other comments: it is certainly true that candidates on the presidential campaign sometimes mention the Court opening. But nowhere near as much as they mention at least 10-15 other issues, according to the earliest studies I have seen. The point is that no one cares about the Court vacancy relative to other things.

There are certainly normative benefits and negatives to making the Garland story a bigger story. My question is not whether we want Garland going public, but whether he needs to do so to get confirmed.

Posted by: David Fontana | Jun 2, 2016 11:59:55 AM

Orin: Thanks for the comments. I just don't think the data bears out that people really care about the Supreme Court. There was a lot of coverage when the nomination first happened, but not since, while coverage persists of plenty of other national political stories (e.g. the presidential race, transgender rights). There is this meme that the Republican base cares about the Supreme Court, but not tons of data to prove it--and good evidence going the other way. Some Republicans self-report they care about the Court, but they don't vote based on it. I do think that elites care about the Court though, particularly conservative elites.

Posted by: David Fontana | Jun 2, 2016 11:46:27 AM

David writes: "First, the descriptive lesson. It is really hard to get the American people to care about the Supreme Court."

I'm not sure I would put the point that way. As I recall it, there was a ton of press coverage of the Garland nomination when it happened. But the GOP base really cares about the Supreme Court, which brought things to a standstill and means there is no news to report. It may be that the relative absence of recent news coverage reflects how much people care about the Supreme Court -- at least the people who make up the GOP base -- not how little they care.

Posted by: Orin Kerr | Jun 2, 2016 11:37:21 AM

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