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Saturday, February 18, 2017

My response to Richard Primus: Public Opinion about courts might be pretty much what it has always been -- unstable and result-oriented.

Richard Primus' thoughtful guest post below worries about a recent survey showing that 25% of the respondents believe that "Donald Trump should be able to overturn decisions by judges that he disagrees with." According to Richard, this sort of survey result suggests that the American people's loyalty to liberal democratic institutions is fraying.

I worry a lot less about such poll results. Absent some longitudinal data showing a particular trajectory, one set of poll numbers does not tell me anything about whether the public is more or less attached to rule of law and separation of powers today than they were in the past. Since Samuel Stouffer's surveys on public attitudes towards non-conformity and civil liberties, public opinion surveys have shown that large percentages of Americans would not protect basic civil liberties essential for a liberal democracy. As Oxley's and Clawson's overview of the survey data shows, those numbers of the intolerant have steadily shrunk since 1954. Maybe 25% support for presidential resistance to courts is likewise an improvement from the past. Even if 25% is just a stable par for the course, stable attitudes do not seem to be a reason for new alarm. So far as I know (which is not very far: I am no expert and have not spent much time asking those who would know), NORC's General Social Survey and similar surveys do not contain questions about relatively complex institutional ideas like presidential resistance to judicial decrees. Maybe such surveys exist, and maybe they show a scary trend. If they do not, however, then Richard's survey might just tell us that a substantial minority of Americans continue to believe, as they might have always believed, that the political branches should be able to resist judicial decrees. (Back in 2012, a YouGov poll showed that "the average level of support for judicial review was a less-than-stellar 60.8," but I have not discovered -- in my twenty minutes of googling! -- survey data from further back in time on judicial review). If it is any comfort, Americans trust courts more than presidents and Congress and have increasingly done so between 1973 and 2006.

Absent data about public opinion tracked consistently over time, it is, in short, impossible to tell whether a survey represents some stable public opinion or just partisan annoyance that Trump's agenda is being foiled by courts. I suppose it might be upsetting to learn that Americans' loyalty to judicial institutions is shallow and partisan. Before we express disgust or alarm about lay opinion, however, we might ask ourselves whether our own academic attitudes towards courts change with the political tides. Back in the days of the Rehnquist Court, stock in "popular constitutionalism" among academics like Robert Post, Mark Tushnet, and Larry Kramer was riding high. I imagine, without knowing for sure, that this stock is trading at a new low in the wake of Trump's election. If so, the academics' change of heart is not a cause for rejoicing in the birth of a new love of the rule of law among the professoriate.

Posted by Rick Hills on February 18, 2017 at 02:42 PM | Permalink


Rick -- I don't know if a true time series exists on such a question - but I believe we could find substantially similar survey questions probably back to at least the 1970s or so. In other words, we might not have perfect word match, but substantively the questions would be addressing the same concern. However, they would not be available for every year in between. One of the most popular treatments on institutional legitimacy (aka diffuse public support) as a means of protection against other branches was by David Easton back in the 1960s. As I recall, William Rehnquist also addressed this concern in some of his writings and speeches.

Posted by: Jeff Yates | Feb 18, 2017 4:14:23 PM

Thanks Jeff! GSS also asks questions about the relative popularity of Congress, court, and President. But do surveys track how voters feel about one branch's overturning the decisions of the other? That's the specific bit of public opinion that worries Richard and perplexes me. (Questions about the legitimacy of "judicial review" might be helpful).

Posted by: Rick Hills | Feb 18, 2017 3:36:12 PM

There are a good number of political science studies on public opinion on the legitimacy of SCOTUS - works by Jim Gibson and others. Shameless book promotion - my recent book on public opinion and state courts (with Damon Cann): https://global.oup.com/academic/product/these-estimable-courts-9780199307210?cc=us&lang=en&

Posted by: Jeff Yates | Feb 18, 2017 3:25:38 PM

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