Priming Public Opinion on the Federal Courts

I wanted to pull up a chair to the blog posts last month by Richard Primus and Rick Hills about the decreasing public regard for the federal courts reported in a recent poll.  I do not question these results, but I want to explain them a little.  If it is indeed true that these findings are unprecedented, my hypothesis would be that it is more of a change on the supply side of public opinion than the demand side of public opinion.  Americans were always willing to distrust their federal courts, they just needed someone to prime them to do so. 

Public support for the federal courts has always been taken as too durable and inevitable and not contextual and fragile enough by law professors.  Just like public attitudes towards other issues, attitudes towards the federal courts can be primed by elite political actors perceived as otherwise sympathetic to one’s worldview.  Donald Braman and I have written of our skepticism that the political science data always does demonstrate meaningful support for the federal courts because so much of that data has no prime or signal affixing practical stakes to judicial actions.  There are many good empirical articles on this, led by this one by Tom S. Clark and Jonathan C. Kastellec, this one by Stephen P. Nicholson and Thomas G. Hansford, and this one by Stephen P. Nicholson.  The gist is that citizens are particularly ill-informed about the federal courts, and thus particularly susceptible to change their sentiments based on cues from sources they trust, like elite co-partisans.

The results demonstrating so-called “diffuse support” for the Supreme Court are often (not always, it is important to note) therefore a manifestation of the presence of social desirability bias and the absence of a countervailing source cue. Many respondents think they should like the federal courts and think they should believe that courts should be powerful.  When asked questions about their support for the federal courts, they will report deep support (although even this support has dropped recently).  When an elite co-partisan steps in to prime them to think otherwise, then social desirability bias is overwhelmed by a reliable signal directing them how to think about federal courts. 

What the mountains of evidence of support for the Court could demonstrate, then, is simply a version of what Frederick Schauer wrote twelve years ago: no one cares that much about what the Supreme Court is deciding, and so therefore (extending Schauer’s point) why would any prominent political figure bother spending scarce political time to make constant and prominent attacks on the Court? President Trump might be spending more time making more aggressive and salient attacks on the federal courts than any other major political figure in some time, which primes his supporters to dislike the federal courts.  Given their general response to primes, they might have always been this easily persuaded by someone so prominent willing to say so much negative about the federal courts.  But no one did so until now, and that is why these numbers have started to appear.