Why the supreme court cares about elites, not the American people

Georgetown Law Journal

Volumn 98, Issue 6, 2010, Pages 1515-1581

  Baum, Lawrence ^a   Devins, Neal ^a  

^a OHIO STATE UNIVERSITY   (United States)

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EID: 78049257414     PISSN: 00168092     EISSN: None     Source Type: Journal    
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References (470)

1. See BARRY FRIEDMAN, THE WILL OF THE PEOPLE: HOW PUBLIC OPINION HAS INFLUENCED THE SUPREME COURT AND SHAPED THE MEANING OF THE CONSTITUTION (2009).
2. See JEFFREY ROSEN, THE MOST DEMOCRATIC BRANCH: How THE COURTS SERVE AMERICA (2006).
3. But see LEE EPSTEIN & JACK KNIGHT, THE CHOICES JUSTICES MAKE 22-51 (1998) (arguing that most Justices are "policy seekers" who "want to move the substantive content of law as close as possible to their preferred position[s]");
4. JEFFREY A. SEGAL & HAROLD J. SPAETH, THE SUPREME COURT AND THE ATTITUDINAL MODEL REVISITED 86-114 (2002) (describing the attitudinal model which posits that "justices make decisions by considering the facts of the case in light of their ideological attitudes and values").
5. See FRIEDMAN, supra note 1.
6. See, e.g., EPSTEIN & KNIGHT, supra note 3;
7. Lee Epstein & Jack Knight, Toward a Strategic Revolution in Judicial Politics: A Look Back, a Look Ahead, 53 POL. RES. Q. 625 (2000) (describing the trend towards scholars using the strategic account to study and understand judicial politics).
8. See FRIEDMAN, supra note 1, at 370; ROSEN, supra note 2, at xii-xiii.
9. This discussion is informed by LAWRENCE BAUM, JUDGES AND THEIR AUDIENCES (2006), and (to a much lesser extent)
10. Neal Devins & Will Federspiel, The Supreme Court, Social Psychology, and Group Formation, in THE PSYCHOLOGY OF JUDICIAL DECISION MAKING 85 (David Klein & Gregory Mitchell eds., 2010).
11. Evan Thomas & Stuart Taylor, Jr., O'Connor's Rightful Heir?, NEWSWEEK, Jan. 30, 2006, at 38. On the Greenhouse effect, see infra notes 332-344 and accompanying text.
12. ROBERT G. MCCLOSKEY, THE AMERICAN SUPREME COURT 224 (1960).
13. Robert A. Dahl, Decision-making in a Democracy: The Supreme Court as a National Policymaker, 6 J. PUB. L. 279, 285 (1957).
14. This tendency to conflate a broad range of social and political forces epitomizes scholarship, including our own, on dialogue between the Court and the elected government. See, e.g., NEAL DEVTNS & Louis FISHER, THE DEMOCRATIC CONSTITUTION (2004) (highlighting, among other things, the numerous ways that social and political forces contribute to the shaping of constitutional values).
15. See, e.g., Lawrence v. Texas, 539 U.S. 558, 571-73 (2003) (examining state practices with regard to anti-sodomy laws). For a thoughtful discussion of the Supreme Court's practice of looking at state legislative practices, see Corrina Lain, The Unexceptionalism of "Evolving Standards," 57 UCLA L. REV. 365 (2009).
16. The classic Supreme Court statement on this point is Vance v. Bradley. "The Constitution presumes that, absent some reason to infer antipathy, even improvident decisions will eventually be rectified by the democratic process and that judicial intervention is generally unwarranted ⋯." 440 U.S. 93, 97 (1979) (footnote omitted).
17. See THOMAS R. MARSHALL, PUBLIC OPINION AND THE REHNQUIST COURT 6 (2008). In Atkins v. Virginia, a 2002 decision striking down the death penalty for the mentally impaired, the Court pointed to "polling data show[ing] a widespread consensus among Americans, even those who support the death penalty, that executing the mentally retarded is wrong." 536 U.S. 304, 316 n.21 (2002).
18. 410 U.S. 113 (1973).
19. 505 U.S. 833, 865 (1992). Chief Justice John Roberts also references concerns of institutional legitimacy in explaining why the Court should avoid five-four decisions in cases "involving the most controversial questions in American politics." Jeffrey Rosen, Op-Ed., The Trial of John Roberts, N.Y. TIMES, Sept. 13, 2009, at WK18.
20. William H. Rehnquist, Constitutional Law and Public Opinion, 20 SUFFOLK U. L. REV. 751, 768 (1986);
21. See also WILLIAM H. REHNQUIST, THE SUPREME COURT 95-98 (1987) (discussing how a confluence of various social and political forces contributed to the Supreme Court's invalidation of President Harry Truman's order seizing the steel mills during the Korean War).
22. BENJAMIN N. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 168 (1921).
23. Even when the Court does not revisit earlier decision making, it sometimes recognizes that earlier doctrine has been nullified "by the court of history." New York Times v. Sullivan, 376 U.S. 254, 276 (1964) (discussing that the Court had never formally invalidated the now discredited Alien and Sedition Acts, Federalist-era legislation criminalizing speech critical of the government).
24. Bowers v. Hardwick, 478 U.S. 186 (1986).
25. See JOHN C. JEFFRIES, JUSTICE LEWIS F. POWELL, JR. 523-525 (1994).
26. Id. at 521-522 (quoting Justice Powell).
27. Lawrence v. Texas, 539 U.S. 558 (2003).
28. Linda Greenhouse, Heartfelt Words from the Rehnquist Court, N.Y. TIMES, July 6, 2003, at WK3.
29. Lawrence, 539 U.S. at 573.
30. Greenhouse, supra note 24.
31. See Craig v. Boren, 429 U.S. 190, 197-198 (1976).
32. FRIEDMAN, supra note 1, at 290 (quoting Eli Ganzberg, a Columbia economics professor). The women's movement also contributed to a dramatic spike in the number of women earning college and graduate degrees and, correspondingly, to changes in the demographics of elites. More significant (for our purposes), the women's movement resulted in Supreme Court Justices increasingly interfacing with professional women-and the Justices' attitudes towards gender issues were undoubtedly affected by these changes in the composition of elites. As we will discuss in Parts II and III of this Article, Supreme Court Justices seek to win approval from reference groups that matter to them. For this very reason, it is to be expected that basic changes in the composition of elite groups will affect the Justices' attitudes towards those groups. Indeed, just as Justice Powell's vote in Bowers v. Hardwick, 478 U.S. 186 (1986), reflected the absence of openly gay individuals in the Justice's personal and professional life, fundamental changes in the demographics of elites are likely to spill over to Court decision making.
33. See supra notes 20-26 and accompanying text (discussing the nexus between the personal experiences of Supreme Court Justices and their decision making).
34. Likewise, in calling attention to the role of social norms, we are not speaking to the phenomenon of "ideological drift"-that is, the movement of individual Justices towards the right or (more typically) the left. That phenomenon is not about macro-social conditions; instead, it speaks to an individual Justice's embrace of one or another ideological position. For additional discussion, see infra notes 332-344 and accompanying text, discussing the "Greenhouse effect."
35. Robert H. Jackson, Maintaining Our Freedoms: The Role of the Judiciary, Speech Delivered to the American Bar Association, Boston, MA (Aug. 24, 1953), in 19 VITAL SPEECHES OF THE DAY 759, 761 (1953).
36. 75 U.S. (8 Wall.) 603, 639 (1870) (holding the Legal Tender Act unconstitutional).
37. 79 U.S. (12 Wall.) 457, 553 (1871) (overturning Hepburn and upholding the Legal Tender Acts as constitutional).
38. See Sidney Ratner, Was the Supreme Court Packed by President Grant?, 50 POL. SCI. Q. 343, 351 (1953) (noting Grant's support for the Legal Tender Acts and his belief that his judicial nominees would uphold their constitutionality).
39. See The Legal Tender Cases, 79 U.S. at 553-554
40. For information on Roosevelt's appointments to the Supreme Court, see ALBERT P. BLAUSTETN & ROY M. MERSKY, THE FIRST ONE HUNDRED JUSTICES 107-108 (1978).
41. LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 485-486 (2000).
42. See MARK GITENSTEIN, MATTERS OF PRINCIPLE: AN INSIDER'S ACCOUNT OF AMERICA'S REJECTION OF ROBERT BORK'S NOMINATION TO THE SUPREME COURT 112 (1992) (discussing the use of focus groups as well as the efforts of Senate leadership to coordinate with interest groups);
43. MICHAEL PERTSCHUK & WENDY SCHAETZEL, THE PEOPLE RISING: THE CAMPAIGN AGAINST THE BORK NOMINATION 257-258 (1989) (discussing interest group efforts to capitalize on Bork's opposition to privacy rights).
44. See generally ETHAN BRONNER, BATTLE FOR JUSTICE: HOW THE BORK NOMINATION SHOOK AMERICA (1989) (providing a history of the Bork nomination and Senate hearings).
45. Bernard Schwartz, Earl Warren as a Judge, 12 HASTINGS CONST. L.Q. 179, 179 (1985).
46. These appointees became part of "the most cohesive [voting] bloc in modern Court history," Edward V. Heck, Justice Brennan and the Heyday of Warren Court Liberalism, 20 SANTA CLARA L. REV. 841, 872 (1980), more willing to overturn constitutional precedent than any Court before it.
47. See MICHAEL BELKNAP, THE SUPREME COURT UNDER EARL WARREN 1953-1969, at 308 (2005).
48. See James H. Fowler & Sangick Jeon, The Authority of Supreme Court Precedent, 30 SOC. NETWORKS 16, 28 (2008) (noting that when Chief Justice Warren stepped down, more than twenty percent of the Court's docket consisted of criminal cases);
49. Steven F. Smith, Taking Lessons from the Left?: Judicial Activism on the Right, 1 GEO. J. L. & PUB. POL'Y 57, 59 (2002) (noting that Warren Court innovations have transformed our dialogue about criminal procedure so that we now "speak of 'constitutional criminal procedure' instead of simply 'criminal procedure'").
50. 384 U.S. 436 (1966).
51. POWE, supra note 36, at 394-95. See Corinna Barrett Lain, Countermajoritarian Hero or Zero?: Rethinking the Warren Court's Role in the Criminal Procedure Revolution, 152 U. PA. L. REV. 1361, 1451-1452 (2004), for a competing perspective arguing that Warren Court decision making was less countermajoritarian than it is often portrayed.
52. See Louis D. Bilionis, Criminal Justice After the Conservative Reformation, 94 GEO. L.J. 1347, 1350-1352 (2006);
53. Cornell W. Clayton & J. Mitchell Pickerill, The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court's Criminal Justice Jurisprudence, 94 GEO. L.J. 1385, 1387, 1393-94, 1410 (2006);
54. Stephen F. Smith, The Rehnquist Court and Criminal Procedure, 73 U. COLO. L. REV. 1337, 1338-1339 (2002).
55. See United States v. Lopez, 514 U.S. 549 (1995); see also STANLEY M. ELAM ET AL., THE 26TH ANNUAL PHI DELTA KAPPA/GALLUP POLL OF THE PUBLIC'S ATTITUDES TOWARD THE PUBLIC SCHOOLS 43-44 (1994) (noting "fighting/violence/ gangs" as among the highest responses for "biggest problem" facing public schools, and "[e]asy availability of weapons (guns, knives)" as among the highest responses for cause of increased violence).
56. See City of Boerne v. Flores, 512 U.S. 507, 511 (1997); see also Cheryl Wetzstein, Polls Find Growing Concern Over 'Moral Direction,' WASH. TIMES, Apr. 23, 1997, at A5.
57. See New York v. United States, 505 U.S. 144, 188 (1992).
58. See United States v. Morrison, 529 U.S. 598, 601-02 (2000) (striking down a portion of the federal Violence Against Women Act on federalism grounds). Only one state supported the challenge to the statute, see Brief for the State of Alabama as Amicus Curiae Supporting Petitioners, Morrison, 529 U.S. 598 (Nos. 99-5, 99-29), but thirty-six supported the position of the federal government, see Brief of the States of Arizona et al. as Amici Curiae in Support of Petitioners' Brief on the Merits, Morrison, 529 U.S. 598 (Nos. 99-105, 99-29).
59. For a discussion of the ways in which party polarization has transformed the "separation of powers" into the "separation of parties," see Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 HARV. L. REV. 2311 (2006).
60. For a discussion of how party polarization has dramatically transformed judicial confirmation politics, see Sarah A. Binder & Forrest Maltzman, The Politics of Advice and Consent: Putting Judges on the Federal Bench, in CONGRESS RECONSIDERED 241 (Lawrence C. Dodd & Bruce I. Oppenehimer eds., 9th ed. 2009).
61. There is a fierce debate among political scientists concerning whether and when the Justices will deviate from their preferred policy positions because of possible elected government backlash. Compare EPSTEIN & KNIGHT, supra note 3, at 12-17 (arguing that Supreme Court Justices are strategic actors who moderate their decision making in order to best advance their preferred policy position),
62. With Jeffrey A. Segal, Separation-of-powers Games in the Positive Theory of Congress and Courts, 91 AM. POL. SCI. REV. 28, 42 (1997) (presenting theoretical and empirical evidence that Supreme Court decision making is independent of congressional preferences). For reasons we will detail in the next few paragraphs, we think that some Justices (often the critical swing Justices) take backlash risks into account. At the same time, we do not think that the risks of backlash are as great as proponents of the strategic and public opinion models assert.
63. See, e.g., EPSTEIN & KNIGHT, supra note 3, at 10, 13-15; FRIEDMAN, supra note 1, at 14-18; ROSEN, supra note 2, at 13, 15. For example, Congress rarely uses its institutional powers against the Court in significant ways.
64. See Lawrence Baum, The Supreme Court in American Politics, 6 ANN. REV. POL. SCI. 161, 167 (2003);
65. Neal Devins, Should the Supreme Court Fear Congress?, 90 MINN. L. REV. 1337, 1348, 1357 (2006). Likewise, the President typically implements Supreme Court rulings.
66. See John Ferejohn, Independent Judges, Dependent Judiciary: Explaining Judicial Independence, 72 S. CAL. L. REV. 353, 382 (1999).
67. See United States v. Nixon, 418 U.S. 683, 713-15 (1974) (holding that the President's "generalized assertion of privilege must yield to the demonstrated, specific need for evidence in a pending criminal trial" while also affirming that "[i]t is ⋯ necessary in the public interest to afford Presidential confidentiality the greatest protection consistent with the fair administration of justice"). During oral argument, Nixon's lawyer, James St. Clair, equivocated on the President's willingness to accept an adverse judgment from the Court-noting that the case "is being submitted to the Court for its guidance" and that the "President, on the other hand, has his obligations under the Constitution." 79 LANDMARK BRIEFS AND ARGUMENTS OF THE SUPREME COURT OF THE UNITED STATES: CONSTITUTIONAL LAW 872 (Philip B. Kurland & Gerhard Casper eds., 1975);
68. See also BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 308-346 (1979) (discussing internal Court deliberations in the Watergate tapes case).
69. See Dennis J. Hutchinson, Unanimity and Desegregation: Decisionmaking in the Supreme Court, 1948-1958, 68 GEO. L. J. 1, 2 (1979);
70. S. Sidney Ulmer, Earl Warren and the Brown Decision, 33 J. POL. 689, 699 (1971). Indeed, well aware of the '"momentum of history'" and the '"deep feeling' people had about these laws," the Court refused to hear a 1955 challenge to Virginia's miscegenation law rather than risk '"thwarting or seriously handicapping'" its decision in Brown and, with it, its institutional prestige.
71. Del Dickson, State Court Defiance and the Limits of Supreme Court Authority: Williams v. Georgia Revisited, 103 YALE L.J. 1423, 1476 & n.316 (1994) (quoting Memorandum from Justice Felix N. Frankfurter to the Conference on Naim v. Naim (Nov. 4, 1955)).
72. See Nw. Austin Mun. Dist. No. One v. Holder, 129 S. Ct. 2504 (2009).
73. Posting of Barry Friedman to Balkinization, http://balkin.blogspot.com/ 2009/09/why-citizens-united-may-not-be-namundo.html (Sept. 26, 2009, 09:09). By way of contrast, Friedman argued that "campaign finance is not an issue that seems to rank high on the public's list of important issues," and, consequently, the Roberts Court could safely overrule prior precedent in the then-undecided Citizens United case. Id. As Friedman and Dahlia Lithwick subsequently noted after the decision in Citizens United v. Federal Election Commission, 130 S. Ct. 876 (2010), the Court's decision in that case was difficult to reconcile with public attitudes. Barry Friedman & Dahlia Lithwick, Speeding Locomotive: Did the Roberts Court Misjudge the Public Mood on Campaign Finance Reform?, SLATE, Jan. 25, 2010, http://www.slate.com/id/ 2242557/;
74. See also Jeanne Cummings, Supreme Court Ruling Fuels Voter Ire, POLITICO, Jan. 9, 2010, http://www.politico.com/news/stories/0210/32713.html (reporting a survey in which two-thirds of respondents opposed the Court's decision).
75. For a related argument, see Barry Friedman, Benched: Why the Supreme Court Is Irrelevant, NEW REPUBLIC, Sept. 23, 2009, at 7, 8, explaining how the Court in general and the Roberts Court in particular takes backlash risks into account. The perceived unpopularity of the Court's decision in Citizens United probably helps to account for President Obama's highly public criticism of it and efforts by congressional Democrats to craft legislation that would limit its impact.
76. See David D. Kirkpatrick, Democrats Try To Rebuild Campaign-spending Barriers, N.Y. TIMES, Feb. 12, 2010, at 19;
77. Sheryl Gay Stolberg, Obama Turns Up Heat Over Ruling on Campaign Spending, N.Y. TIMES, Jan. 24, 2010, at 18.
78. For a sampling of cases, see Neal Devins & Louis Fisher, Judicial Exclusivity and Political Instability, 84 VA. L. REV. 83, 94-96 (1998).
79. In Planned Parenthood v. Casey, 505 U.S. 833 (1992), the Court's willingness to moderate, but not overrule, Roe v. Wade, 410 U.S. 113 (1973), including the overruling of past precedent on waiting periods and informed consent requirements, was tied to the appointments of the three Justices who wrote the plurality decision (Sandra Day O'Connor, David Souter, and Anthony Kennedy). In making this point, we recognize that the views of the Justices in the Casey plurality were shaped by a broad range of events-including but not limited to elected government resistance to Roe.
80. For a related argument, see Neal Devins, Social Meaning and School Vouchers, 42 WM. & MARY L. REV. 919, 936-937 (2001) (noting how changes in Court doctrine governing aid to religious schools were shaped by changing social norms-norms which intersected with the appointment of Justices sympathetic to some school voucher schemes).
81. The Court may also be responding to attacks from other quarters, including elites. This is what happened in 1943, when the Court backed away from a 1941 ruling approving state mandated flag salutes. See infra notes 300-305 and accompanying text.
82. See generally Phillip P. Frickey, Getting from Joe to Gene (McCarthy): The Avoidance Canon, Legal Process Theory, and Narrowing Statutory Interpretation in the Early Warren Years, 93 CAL. L. REV. 397 (2005) (examining the 1950s Warren Court's use of the constitutional avoidance canon to render statutes regulating subversives compatible with the Constitution, leaving Congress free to amend the statutes).
83. For another Warren Court example, see Yale Kamisar, The Warren Court and Criminal Justice, in THE WARREN COURT: A RETROSPECTIVE 116, 116-117 (Bernard Schwartz ed., 1996), discussing how, in its later years, the Warren Court scaled back its controversial criminal procedure revolution in the face of criticism from members of Congress and political candidates.
84. Furman v. Georgia, 408 U.S. 238, 239-40 (1972). Following this decision thirty-five states enacted new death penalty statutes, there was a huge spike in public support for the death penalty, and presidential candidates Jimmy Carter and Gerald Ford both backed the death penalty. See Corinna Barrett Lain, Deciding Death, 57 DUKE L.J. 1, 22-24 (2007).
85. See Gregg v. Georgia, 428 U.S. 153, 207 (1976). Although the exact cause of the Court's retreat is unclear, the negative response to Furman probably contributed to the Court's about-face in Gregg.
86. See supra note 47 and accompanying text (discussing party polarization and its effects). For discussion of how party polarization shapes congressional consideration of constitutional issues, including the power of interest group constituents to push lawmakers to embrace positions at odds with popular opinion, see Neal Devins, Tom DeLay: Popular Constitutionalist?, 81 CHI.-KENT L. REV. 1055 (2006);
87. Sam Rosenfeld, Disorder in the Court, AM. PROSPECT, July 2005, at 24.
88. See supra note 56 and accompanying text.
89. See BAUM, supra note 7, at 42, 44.
90. LEARNED HAND, THE BILL OF RIGHTS 58-59 (1958);
91. See also FRIEDMAN, supra note 1, at 256-257 (discussing attacks on the Court in the late-1950s by state court judges, the American Bar Association, and legal academics).
92. See BAUM, supra note 7, at 42 (noting Frankfurter's admiration of Hand).
93. For examples of this view, see supra note 10, and infra notes 71-72.
94. For a fuller discussion of these models (including the ways in which they diverge from one another), see infra sections II.A-B.
95. BAUM, supra note 7, at 22.
96. On a strongly liberal or conservative Court, the median Justice might not be a moderate. See Devins & Federspiel, supra note 7, at 87. For reasons detailed infra notes 96-101 and accompanying text, the ability of the median Justice to swing between the Court's liberal and conservative factions is tied to ideological diversity among the Justices.
97. Compare SEGAL & SPAETH, supra note 3, at 92 (suggesting that Supreme Court Justices vote policy preferences),
98. With Howard Gillman, What's Law Got To Do with It?: Judicial Behavioralists Test the "Legal Model" of Judicial Decision Making, 26 LAW & SOC. INQUIRY 465, 446, 490 (2001) (arguing that legal considerations play a significant role in Supreme Court decision making).
99. Compare EPSTEIN & KNIGHT, supra note 3, at 10 (suggesting that strategic considerations figure prominently in Supreme Court decision making and "best explain the choices of [J]ustices"),
100. With SAUL BRENNER & JOSEPH M. WHITMEYER, STRATEGY ON THE UNITED STATES SUPREME COURT 161-165 (2009) (concluding that Justices act strategically to only a limited degree).
101. The term "strategic" is used in multiple ways. The most common meaning of strategic behavior by judges is that they take into account the potential reactions of other people and institutions when making choices. Thus, a strategic, policy-oriented judge takes a position in a case that diverges from the judge's most preferred position when doing so elicits reactions (from judicial colleagues, the other branches of government, or others) that best advance the judge's policy goals. The simplest example is compromise with other judges on an appellate court in order to secure a more desirable majority opinion than would have resulted if the judge had simply taken her most preferred position. On definitions and conceptions of judicial strategy, see LAWRENCE BAUM, THE PUZZLE OF JUDICIAL BEHAVIOR 89-94 (1997).
102. This shared premise is discussed in BAUM, supra note 69, at 27-28; Frederick Schauer, Incentives, Reputation, and the Inglorious Determinants of Judicial Behavior, 68 U. CIN. L. REV 615, 615-17 (2000). By "substance of legal policy" we mean the content of the policies that the Supreme Court and other government bodies make. To the extent that law and policy can be distinguished, a Justice who cares about legal policy might seek to make what the judge sees as good law or as good policy.
103. See Kevin T. McGuire & James A. Stimson, The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences, 66 J. POL. 1018, 1019 (2004) ("[A] Court that cares about its perceived legitimacy must rationally anticipate whether its preferred outcomes will be respected and faithfully followed by relevant publics.");
104. Tom R. Tyler & Gregory Mitchell, Legitimacy and the Empowerment of Discretionary Legal Authority: The United States Supreme Court and Abortion Rights, 43 DUKE L.J. 703 (1994).
105. This view is widely held-even by Supreme Court Justices who claim that public opinion should play no formal role in Supreme Court decision making. Chief Justice Rehnquist, for example, commented that the "design of our Constitutional system" makes it inevitable that the courts would "encounter challenges to [their] independence," and, consequently, judicial independence is linked in "some measure [to] the public's respect for the judiciary." William H. Rehnquist, Judicial Independence, 38 U. RICH. L. REV. 579, 595-596 (2004).
106. See EPSTEIN & KNIGHT, supra note 3, at 157-59; FRIEDMAN, supra note 1, at 370, 375; Tom S. Clark, The Separation of Powers, Court Curbing, and Judicial Legitimacy, 53 AM. J. POL. SCI. 971, 973-974 (2009);
107. Roy B. Flemming & B. Dan Wood, The Public and the Supreme Court: Individual Justice Responsiveness to American Policy Moods, 41 AM. J. POL. SCI. 468, 494 (1997);
108. William Mishler & Reginald S. Sheehan, The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions, 87 AM. POL. SCI. REV. 87, 89-90 (1993);
109. Jeffery L. Mondak & Shannon Ishiyama Smithey, The Dynamics of Public Support for the Supreme Court, 59 J. POL. 1114, 1114 (1997).
110. See EPSTEIN & KNIGHT, supra note 3, at 36-39; SEGAL & SPAETH, supra note 3, at 95-96.
111. See EPSTEIN & KNIGHT, supra note 3, at 36-49 (analyzing several possible goals Justices might pursue and concluding that "most [J]ustices in most cases" seek to advance their policy preferences); SEGAL & SPAETH, supra note 3, at 92-96.
112. See generally PHILLIP J. COOPER, BATTLES ON THE BENCH: CONFLICT INSIDE THE SUPREME COURT (1995) (presenting a history of conflicts on the Supreme Court);
113. Devins & Federspiel, supra note 7 (highlighting the role of intragroup dynamics in Supreme Court decision making)
114. RICHARD A. POSNER, How JUDGES THINK 36 (2008). Posner's point of reference is all judges, not simply Supreme Court Justices. At the same time, all items on his list might extend to Supreme Court Justices. For example, both Justices Scalia and Stevens have arguably embraced limiting the workload of Supreme Court Justices, saying that they appreciate the reduction in the number of cases that the Court has accepted since the mid-1980s. See M.R. Kropko, Justice Scalia Says Smaller Docket Leads to Better Opinions, ASSOCIATED PRESS STATE & LOCAL WIRE, Jan. 11, 2007 (Scalia);
115. Pamela A. MacLean, 9th Circuit Reversal Rate Is Misleading, NAT'L L.J., July 30, 2007, at 14 (Stevens).
116. For additional discussion of the range of goals that might guide judges' choices, including some goals with only limited relevance to the Supreme Court, see, for example, Gary M. Anderson, William F. Shughart II & Robert D. Tollison, On the Incentives of Judges to Enforce Legislative Wealth Transfers, 32 J. L. & ECON. 215 (1989), examining the effects of judicial salaries on judicial independence;
117. Mitu Gulati & C.M.A. McCauliff, On Not Making Law, 61 LAW & CONTEMP. PROBS. 157 (1998), examining the effect of differences in publication practices of federal circuits on judicial decision making;
118. Richard A. Posner, What Do Judges and Justices Maximize? (The Same Thing Everybody Else Does), 3 SUP. CT. ECON. REV. 1 (1993), presenting a positive economic theory of judicial behavior.
119. The Justices, after all, get nothing concrete from advancing favored policies; rather, they get symbolic benefits. But they also get symbolic benefits from other things as well, so it is not self-evident that the Justices will devote themselves single-mindedly to advancing policies they favor.
120. See Devins & Federspiel, supra note 7, at 90.
121. See infra notes 91-95 and accompanying text (discussing Justices Ginsburg and Thomas).
122. On the application of psychological theory to die Supreme Court, see LAWRENCE S. WRIGHTSMAN, THE PSYCHOLOGY OF THE SUPREME COURT (2006).
123. On its application to judicial decision making more broadly, see THE PSYCHOLOGY OF JUDICIAL DECISION MAKING, supra note 7.
124. See, e.g., RICK H. HOYLE ET AL., SELFHOOD: IDENTITY, ESTEEM, REGULATION 31-35 (1999);
125. Roy F. Baumeister & Mark R. Leary, The Need To Belong: Desire for Interpersonal Attachments as a Fundamental Human Motivation, 117 PSYCHOL. BULL. 497 (1995).
126. See BAUM, supra note 7, at 32-33. On judges' interest in how they are viewed by other people, see generally Thomas J. Miceli & Metin M. Coşgel, Reputation and Judicial Decision-making, 23 J. ECON. BEHAV. & ORG. 31 (1994); Schauer, supra note 70, at 625-631.
127. On self-presentation and the related concept of impression management, see generally ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE (1959);
128. MARK R. LEARY, SELF-PRESENTATION: IMPRESSION MANAGEMENT AND INTERPERSONAL BEHAVIOR (1996);
129. Barry R. Schlenker & Michael F. Weigold, Interpersonal Processes Involving Impression Regulation and Management, 43 ANN. REV. PSYCHOL. 133 (1992).
130. LEARY, supra note 83, at 2.
131. Id. at 3.
132. Id. at 67.
133. See infra Table 1.
134. On wit, see Jay D. Wexler, Laugh Track, 9 GREEN BAG 2D 59 (2005);
135. Adam Liptak, So, Guy Walks Up to the Bar, and Scalia Says ⋯, N.Y. TIMES, Dec. 31, 2005, at A1.
136. As Justice Scalia wrote, 'To be able to write an opinion solely for oneself, without the need to accommodate, to any degree whatever, the more-or-less differing views of one's colleagues ⋯ that is indeed an unparalleled pleasure." Antonin Scalia, The Dissenting Opinion, 1994 J. SUP. CT. HIST. 33, 42.
137. On the admiration that Justice Scalia's opinion writing has garnered, see MARK TUSHNET, A COURT DIVIDED: THE REHNQUIST COURT AND THE FUTURE OF CONSTITUTIONAL LAW 147 (2005).
138. See BAUM, supra note 7, 50-155 (describing a variety of judicial audiences and how they affect judicial behavior). Fellow Justices may also be an important audience, and certainly group processes within the Court play a part in the Court's decision making. See generally Devins & Federspiel, supra note 7.
139. See, e.g., Clarence Thomas, Be Not Afraid, Francis Boyer Lecture at the American Enterprise, Institute Annual Dinner (Feb. 13, 2001) (transcript available at http://www.aei.org/speech/15211).
140. See JOHN C. DANFORTH, RESURRECTION: THE CONFIRMATION OF CLARENCE THOMAS 87-90, 130 (1994);
141. CLARENCE THOMAS, MY GRANDFATHER'S SON: A MEMOIR 75, 99, 107-08, 130, 210, 252, 257 (2007);
142. Jeffrey Toobin, The Burden of Clarence Thomas, NEW YORKER, Sept. 27, 1993, at 38.
143. According to one law clerk, early in his Court tenure Justice Thomas said that he would serve as a Justice until 2034: "The liberals made my life miserable for 43 years, and I'm going to make their lives miserable for 43 years." Neil A. Lewis, 2 Years After His Bruising Hearing, Justice Thomas Can Rarely Be Heard, N.Y. TIMES, Nov. 27, 1993, at 7.
144. 531 U.S. 98 (2000).
145. See FRED STREBEIGH, EQUAL WOMEN RESHAPE AMERICAN LAW 31-77 (2009). Justice Sandra Day O'Connor did not share Justice Ginsburg's ties with the women's movement, but her friendships and acquaintanceships with women in the legal and social elites may have shaped her positions on issues relating tathe status of women. Justice Harry Blackmun speculated that Justice O'Connor would find it difficult to support the overturning of Roe v. Wade because she "may fear somewhat any accusation of being a traitor to her sex."
146. Interview by Harold Hongju Koh with Harry A. Blackmun (June 20, 1995), in THE JUSTICE HARRY A. BLACKMUN ORAL HISTORY PROJECT 504-505, available at http://lcweb2.loc.gov/diglib/blackmun-public/page.html?FOLDERID= D0901&SERIESID=D09.
147. That appearance was the subject of some criticism. See Richard A. Serrano & David G. Savage, Ginsburg Has Ties to Activist Group, L.A. TIMES, Mar. 11, 2004, at A1.
148. Cf. Jeff Yates, Brian Levey, Justin Moeller, 'For the Times They are a Changin': Explaining U.S. Supreme Court Justices' Voting Through Identification with Micro-Publics (July 14, 2009) (unpublished manuscript), available at http://papers.ssrn.com/sol3/papers.cfm?abstract-id=1434250.
149. See infra notes 150-153 and accompanying text.
150. Portions of the next two paragraphs are drawn from Devins & Federspiel, supra note 7, at 91-92.
151. David G. Winter, Measuring the Motives of Political Leaders at a Distance, in THE PSYCHOLOGICAL ASSESSMENT OF POLITICAL LEADERS 153-154 (Jerrold M. Post ed., 2003);
152. David G. Winter, Motivation and Political Leadership, in POLITICAL LEADERSHIP FOR THE NEW CENTURY: PERSONALTTY AND BEHAVIOR AMONG AMERICAN LEADERS 25 (Linda O. Valenty & Ofer Feldman eds., 2002).
153. On the question of how an individual's need for power influences his or her willingness to join a coalition, see DONELSON R. FORSYTH, GROUP DYNAMICS 92 (3d ed. 1999).
154. The question of whether swing Justices truly exercise more power than their colleagues is an intriguing one. Arguably, all Justices are equal in power because each casts one vote. But because the votes of swing Justices are less predictable than those of their colleagues, and because they find themselves in the majority more often, they have at least the appearance of greater power. That appearance affects both the perceptions of swing Justices by their colleagues and people outside the Court as well as the self-perceptions of swing Justices, which are the most relevant concerns for our purposes.
155. See, e.g., Posting of Lyle Denniston to SCOTUSblog, http://www. scotusblog.com/2010/04/the-kennedy-court-only-more-so/ (Apr. 28, 2010, 18:49).
156. The scholarship on social identity emphasizes the importance of people's identifications with groups of which they themselves are a part. See generally SOCIAL IDENTITY AND SOCIAL COGNITION (Dominic Abrams & Michael A. Hogg eds., 1999);
157. HENRI TAJFEL, DIFFERENTIATION BETWEEN SOCIAL GROUPS: STUDIES IN THE SOCIAL PSYCHOLOGY OF INTERGROUP RELATIONS (1978);
158. Marilynn B. Brewer, The Many Faces of Social Identity: Implications for Political Psychology, 22 POL. PSYCHOL. 115 (2001);
159. Kay Deaux, Reconstructing Social Identity, 19 PERSONALITY & SOC. PSYCHOL. BULL. 4 (1993).
160. POSNER, supra note 76, at 306.
161. Id.
162. Michael J. Klarman, What's So Great About Constitutionalism?, 93 Nw. U. L. REV. 145, 189 (1998).
163. See also Schauer, supra note 70, at 622-623 (discussing life tenure and its influences on judicial decision making and contrasting judicial to legislative decision making).
164. In Part III, we will make this point more concrete by looking at empirical evidence supporting our claim that Justices care about elite audiences. For additional discussion of how the Justices' elitist background contributes to their isolation from the mass public, see Klarman, supra note 106, at 189-194
165. See Benjamin J. Roesch, Crowd Control: The Majoritarian Court and the Reflection of Public Opinion in Doctrine, 39 SUFFOLK U. L. REV. 379, 396 (2006).
166. See, e.g., Lawrence Baum, Recruitment and the Motivations of Supreme Court Justices, in SUPREME COURT DECISION-MAKING: NEW INSTITUTIONALIST
167. Lee Epstein, Jack Knight & Andrew D. Martin, The Norm of Prior Judicial Experience and Its Consequences for Career Diversity on the U.S. Supreme Court, 91 CAL. L. REV. 903 (2003).
168. See LAWRENCE BAUM, THE SUPREME COURT 51 (9th ed. 2007); Federal Judicial Center, Biographical Directory of Federal Judges, http://www.fjc.gov/history/ judges.html (biographical information on Justice Sonia Sotomayor). (Of course, that was not true of every presidential nomination: Harriet Miers, nominated by President George W. Bush in 2005 to succeed Sandra Day O'Connor, had not served as a judge.) Thus, if Elena Kagan is confirmed as a justice, she would be the first appointee who was not sitting on a federal court of appeals since Sandra Day O'Connor in 1981 and the first non-judge appointed to the Court since Lewis Powell and William Rehnquist in 1971.
169. Among the Justices appointed between 1969 and 2009, the median proportion of their post-law school careers spent in private practice, law school teaching, and the judiciary was 87 percent. The comparable figure for appointees between 1937 and 1968 was 67 percent. LAWRENCE BAUM, THE SUPREME COURT 58 (10th ed. 2010).
170. See Baum, supra note 110.
171. See infra Table 1. That number is an underestimate, perhaps a substantial underestimate, because the Justices do not always indicate in their financial reports that appearances at colleges and universities are specifically at law schools.
172. Schauer, supra note 70 at 628. In Part III, we will build upon this point-discussing how it is that the Justices take signals from legal academics and other elites.
173. Data are from the Justices' annual Financial Disclosure Reports. In general, the Justices must report reimbursements of more than $250. 5 U.S.C. § 102(a)(2)(B). The figures in the tables are approximate rather than exact because of incomplete information in some entries and differences in reporting practices. In particular, multiple appearances in a single trip are sometimes placed in single entries, and sometimes in multiple entries.
174. Totals across the four categories (colleges/universities, law schools, bar/bench, other) add up to more than the "total appearances" column because some appearances fell into multiple categories.
175. "Colleges/Universities" includes any appearance that is listed as occurring at a college or university, or before a college alumni group. All appearances in the "Law Schools" category are also counted in this category.
176. "Law school" includes any appearance that is listed as occurring at a law school. The "+" signs indicates that the numbers for law schools are underestimates, because it appears that Justices frequently list law school appearances only by the name of the college or university. All appearances in this category are also counted in the "Colleges/ Universities" category.
177. "Bar/Bench" includes any appearance before a group composed primarily of lawyers, judges, or both.
178. "Other" includes all appearances that do not fall into the "college" or "bench/bar" categories.
179. See Samuel A. Alito, Financial Disclosure Reports for Calendar Years 2006-2008, available at http://moneyline.cq.com/flatfiles/editorialFiles/ moneyLine/reference/scotus/scotus.html.
180. See Stephen G. Breyer, Financial Disclosure Reports for Calendar Years 1998-2003 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors); Stephen G. Breyer, Financial Disclosure Reports for Calendar Years 2004-2008, available at http://moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/scotus/ scotus.html.
181. See Ruth B. Ginsburg, Financial Disclosure Reports for Calendar Years 1998-2003 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors); Ruth B. Ginsburg, Financial Disclosure Reports for Calendar Years 2004-2008, available at http://moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/scotus/ scotus.html.
182. See Anthony M. Kennedy, Financial Disclosure Reports for Calendar Years 1998-2003 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors); Anthony M. Kennedy, Financial Disclosure Reports for Calendar Years 2004-2008, available at http://moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/scotus/ scotus.html.
183. See Sandra Day O'Connor, Financial Disclosure Reports for Calendar Years 1998-2005 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors).
184. See William H. Rehnquist, Financial Disclosure Reports for Calendar Years 1998-2005 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors).
185. See John G. Roberts, Jr., Financial Disclosure Reports for Calendar Years 2005-2008, available at http://moneyline.cq.com/flatfiles/editorialFiles/ moneyLine/reference/scotus/scotus.html.
186. See Antonin Scalia, Financial Disclosure Reports for Calendar Years 1998-2003 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors); Antonin Scalia, Financial Disclosure Reports for Calendar Years 2004-2008, available at http.//moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/scotus/ scotus.html.
187. See David H. Souter, Financial Disclosure Reports for Calendar Years 1998-2003 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors); David H. Souter, Financial Disclosure Reports for Calendar Years 2004-2008, available at http://moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/scotus/ scotus.html.
188. See John Paul Stevens, Financial Disclosure Reports for Calendar Years 1998-2003 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors); John Paul Stevens, Financial Disclosure Reports for Calendar Years 2004-2008, available at http://moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/scotus/ scotus.html.
189. See Clarence Thomas, Financial Disclosure Reports for Calendar Years 1998-2003 (obtained from the Financial Disclosure Office of the Administrative Office of the U.S. Courts) (on file with authors); Clarence Thomas, Financial Disclosure Reports for Calendar Years 2004-2008, available at http://moneyline.cq.com/flatfiles/editorialFiles/moneyLine/reference/scotus/ scotus.html.
190. ROBERT H. BORK, THE TEMPTING OF AMERICA 242 (1990).
191. JOHN HART ELY, DEMOCRACY AND DISTRUST 59 (1980).
192. Of the 1031 reimbursed appearances in the 1998-2008 period, only five took place in Washington, D.C.
193. See supra notes 91-95 and accompanying text. For more than thirty years, the Court has not been dominated by either a left- or right-leaning faction, so that power has typically resided in so-called swing Justices. As a result, Justices with strong ties to groups at either end of the ideological spectrum have not dominated Court decision making on visible, divisive issues.
194. See Peter S. Canellos, A Call to Order Sounds for Liberals on Message, BOSTON GLOBE, Aug. 5, 2003, at A3.
195. Justice Scalia's financial reports for 1998-2008 list thirteen appearances at Federalist Society events. Appearances in the "other" category were coded as "ideological" if the group before which the Justice appeared had an identifiable position on the ideological spectrum. This coding is necessarily inexact, but it is worth noting that the proportion of all appearances that were coded as ideological was highest for Justice Scalia and Justice Thomas, at eight percent and nine percent, respectively. However, the need for caution in interpreting these figures is underlined by one of Justice Scalia's appearances before an ideological group-a state chapter of the American Civil Liberties Union.
196. Increasingly, the Justices-especially conservative justices-have tended to hire law clerks who have worked for court of appeals judges with ideological positions similar to their own. See Corey Ditslear & Lawrence Baum, Selection of Law Clerks and Polarization in the U.S. Supreme Court, 63 J. POL. 869, 882-883 (2001).
197. On broader ideological linkages between Justices and clerks, see William E. Nelson, Harvey Rishikof, I. Scott Messinger & Michael Jo, The Liberal Tradition of the Supreme Court Clerkship: Its Rise, Fall, and Reincarnation?, 62 VAND. L. REV. 1749 (2009).
198. Robert Barnes, Federalists Relish Well-placed Friends: President, Several Justices Help Celebrate Legal Society's 25 Years of Conservatism, WASH. POST, NOV. 16, 2007, at A3.
199. See Ruth Bader Ginsburg, Associate Justice, U.S. Supreme Court, Looking Beyond Our Borders: The Value of a Comparative Perspective in Constitutional Adjudication, Keynote Address, First National Convention of the American Constitution Society (Aug. 2, 2003), in 22 YALE L. & POL'Y REV. 329; Stephen G. Breyer, Associate Justice, U.S. Supreme Court, Keynote Speaker at the American Constitution Society Conference (June 18, 2004) (transcript available at http://www.acslaw.org/files/2004%20convention-Breyer-speech%20transcript.pdf) .
200. It is likewise noteworthy that some Justices maintain informal social and professional ties with people outside the Court who are on the same side of the ideological spectrum. One well known example is the lunchtime interaction among liberal Justices, lower court judges, and other Washingtonians in the 1960s and 1970s. See Fred Barbash, Judge Bazelon's "Network": The Salon of the Ultimate Liberal, WASH. POST, Mar. 1, 1981, at A2;
201. Francis X. Clines & Warren Weaver Jr., Briefing, N.Y. TIMES, May 18, 1982, at A18.
202. See supra tbl.1; Schauer, supra note 70, at 628. With the exception of Justice Stevens, who attended Northwestern Law School, all the Justices who served in the Court's 2009 Term attended either Harvard or Yale Law School (although Justice Ginsburg transferred from Harvard to Columbia). Federal Judicial Center, Biographical Directory of Federal Judges, http://www.fjc.gov/ public/home.nsf/hisj (last visited Mar. 24, 2010). If Elena Kagan is confirmed as Justice Stevens's successor, every Justice will have gone to law school at Harvard or Yale. For commentary on the prospects of a Harvard-Yale Supreme Court, see Christopher Edley, Jr., Why Elites Do Belong on the Supreme Court, WASH. POST, May 16, 2010, at B-1, arguing that elite institutions rightfully serve as "gatekeepers" and that the graduates of elite institutions "are more diverse in aspirations and passions than can be imagined";
203. Jonathan Turley, It's Their Private Court, L.A. TIMES, May 12, 2010, at A-17, contending that the "favoritism" shown Harvard and Yale is "clearly arbitrary and capricious," running "against the grain of a nation based on meritocracy and opportunity."
204. See Doni Gewirtzman, Glory Days: Popular Constitutionalism, Nostalgia, and the True Nature of Constitutional Culture, 93 GEO. L.J. 897, 928-930 (2005) (noting public opinion is shaped by political elites);
205. Amnon Reichman, The Dimensions of Law: Judicial Craft, Its Public Perception, and the Role of the Scholar, 95 CAL. L. REV. 1619, 1637-1643 (2007) (noting how the media defines the social meaning of Supreme Court decisions).
206. Patrick Egan, Nathaniel Persily & Kevin Wallsten, Gay Marriage, Public Opinion and the Courts 43 (Apr. 2006) (paper prepared for delivery at the Midwest Political Science Association Annual Conference, available at http://www.allacademic.com/meta/p-mla-apa-research-citation/1/3/9/6/2/ p139621-index.html).
207. See infra Part III.
208. Today, social and cultural issues are the dominant issues before the Court. Before 1930, however, economic issues dominated and the cultural elite supported "a constitutional jurisprudence that was somewhat more protective of property rights than was majoritarian politics." Klarman, supra note 106, at 190.
209. See RICHARD DAVIS, DECISIONS AND IMAGES: THE SUPREME COURT AND THE PRESS 102-131 (1994);
210. WALTER F. MURPHY, ELEMENTS OF JUDICIAL STRATEGY 128-129 (1964);
211. DAVID G. SAVAGE, TURNING RIGHT: THE MAKING OF THE REHNQUIST SUPREME COURT 150 (1992);
212. Linda Greenhouse, Nixon Appointee Eased Supreme Court Away from Liberal Era, N.Y. TIMES, June 26, 1995, at A1.
213. The Justices' interest in the content of news coverage is reflected in their occasional complaints about it See, e.g., Antonin Scalia, Letter to the Editor, Scalia: Article Off Base, LEGAL TIMES, Oct 2, 2000, at 85;
214. Potter Stewart, Letter to the Editor, Justice Stewart Dissents, WALL ST. J., July 3, 1968, at 6.
215. See supra notes 83-85 and accompanying text.
216. Impression management figures prominently into this calculation. According to Mark Leary, "people try to project images of themselves that are consistent with the norms in a particular social setting and with the roles they occupy." LEARY, supra note 83, at 67.
217. TUSHNET, supra note 89, at 176 (quoting an anonymous Justice Kennedy clerk).
218. JAN CRAWFORD GREENBURG, SUPREME CONFLICT 159 (2007) (quoting Justice Kennedy).
219. The median Justice plays an often decisive role on an ideologically divisive Court. When there is a dominant coalition of five or more Justices, swing Justice preferences may give way to intra-group dynamics within the majority coalition. See Devins & Federspiel, supra note 7.
220. See supra notes 144-145 and accompanying text.
221. On legal scholars, see John O. McGinnis, Matthew A. Schwartz, & Benjamin Tisdell, The Patterns and Implications of Political Contributions by Elite Law School Faculty, 93 GEO. L.J. 1167, 1170 (2003);
222. Deborah Jones Merritt, Research and Teaching on Law Faculties: An Empirical Exploration, 73 CHI.-KENT L. REV. 765, 780 n.54 (1998);
223. Gregory C. Sisk, Michael Heise, & Andrew P. Morriss, Charting the Influences on the Judicial Mind: An Empirical Study of Judicial Reasoning, 73 N.Y.U. L. REV. 1377, 1463 (1998).
224. On academics in general, see Patricia Cohen, Professor Is a Label That Leans to the Left, N.Y. TIMES, Jan. 18, 2010, at C1.
225. On the news media, see DAVID H. WEAVER & G. CLEVELAND WILHOIT, THE AMERICAN JOURNALIST: A PORTRAIT OF U.S. NEWS PEOPLE AND THEIR WORK 28, 31 (1991), showing a reduced but still substantial tendency toward liberalism and Democratic identification among executives and staff members of "prominent" news organizations;
226. Stanley Rothman & S. Robert Lichter, Personality, Ideology and World View: A Comparison of Media and Business Elites, 15 BRIT. J. POL. SCI. 29, 31 (1985).
227. The preferences of elites and those of the mass public are often in sync. When they are in tension, however, the Supreme Court often favors elite views. In Part III, infra, we provide empirical support for this claim.
228. This conclusion is somewhat dependent on the Court being ideologically divided-as the power of the median Justice is tied to the absence of a majority coalition of five or more ideologically simpatico Justices. See supra note 67.
229. To take one well-known example, observers of the Court have discussed the interest of Justice Hugo Black in his public image and have speculated about the impact of that interest on the positions he took on the Court. See DAVIS, supra note 148, at 43; WILLIAM DOMNARSKI, IN THE OPINION OF THE COURT 67 (1996);
230. Dennis J. Hutchinson, Remembering Lewis F. Powell, 2 GREEN BAG 2D 163, 167 (1999).
231. Barry Friedman recognizes both rationales, although his argument is largely moored to the legitimacy rationale. Compare FRIEDMAN, supra note 1, at 374 ("[T]hat the Justices are only human may say a lot for why responsiveness to public opinion occurs. The Justices are no less vain than the rest of us, and it is human nature to like to be liked or even applauded and admired."), with id. at 375 ("The most telling reason why the Justices might care about public opinion, though, is simply that they do not have much of a choice. At least, that is, if they care about preserving the Court's institutional power, about having their decisions enforced, about not being disciplined by politics.").
232. See supra notes 16, 71 and accompanying text (providing examples of Supreme Court Justices explicitly referencing legitimacy concerns).
233. FRIEDMAN, supra note 1, at 370.
234. See supra notes 4-6 and accompanying text.
235. For citations to this literature, see Ilya Somin, Political Ignorance and the Countermajoritarian Difficulty: A New Perspective on the Central Obsession of Constitutional Theory, 89 IOWA L. REV. 1287, 1304-1314 (2004).
236. See generally MICHAEL X. DELLI CARPINI & SCOTT KEETER, WHAT AMERICANS KNOW ABOUT POLITICS AND WHY IT MATTERS (1996) (documenting widespread political ignorance).
237. John O. McGinnis & Ilya Somin, Federalism vs. States' Rights: A Defense of Judicial Review in a Federal System, 99 Nw. U. L. REV. 89, 95 (2004) (quoting Stephen E. Bennett, "Know-Nothings" Revisited: The Meaning of Political Ignorance Today, 69 SOC. SCI. Q. 476 (1988)). Such widespread ignorance is not the result of a lack of education, a lack of smarts, or irrationality. Voters, instead, are "rationally ignorant" about politics; because of the low significance of any one vote, voters (unless they are personally interested in politics) have little incentive to invest significant time in educating themselves about policy issues or differences between political candidates or parties.
238. See Ilya Somin & Neal Devins, Can We Make the Constitution More Democratic?, 55 DRAKE L. REV. 971, 977 (2007).
239. Jennifer Harper, Superman Tops Supremes: Americans Know Pop Culture Better than Politics, WASH. TIMES, Aug. 15, 2006, at A1. Along the same lines, while only one in four Americans can name more than one of the five freedoms guaranteed by the First Amendment, more than half can name at least two members of the Simpsons cartoon family.
240. Aye, Caramba! U.S. Fails History, NEWSDAY, Mar. 2, 2006, at A15.
241. See JAMES L. GIBSON & GREGORY A. CALDEIRA, CITIZENS, COURTS, AND CONFIRMATIONS: POSITIVEITY THEORY AND THE JUDGMENTS OF THE AMERICAN PEOPLE 24-35 (2009).
242. For a summary of this data, see David Adamany & Joel B. Grossman, Support for the Supreme Court as a National Policymaker, 5 LAW & POL'Y Q. 405, 407 (1983);
243. Barry Friedman, Mediated Popular Constitutionalism, 101 MICH. L. REV. 2596, 2620-2623 (2003).
244. See ELLIOT E. SLOTNICK & JENNIFER A. SEGAL, TELEVISION NEWS AND THE SUPREME COURT: ALL THE NEWS THAT'S FIT TO AIR? 158-88 (1998). On the link between elite (media and academic) commentary on the Supreme Court and public awareness of Court decisions, see supra notes 144-145
245. In antitrust law, one indicator of limited public interest is the small proportion of survey respondents who paid attention to the Microsoft antitrust trial in 1998 and 1999, despite the unusual visibility and salience of that case. See PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, CLINTON LEADERSHIP POSITION ENHANCED 6 (1998), available at http://people-press.org/reports/pdf/75. pdf (showing only 12% of those surveyed followed the Microsoft trial "very closely");
246. PEW RESEARCH CTR. FOR THE PEOPLE & THE PRESS, CAMPAIGN INCIDENTS HAVE LITTLE PUNCH 12 (1999), available at http://peoplepress.org/reports/pdf/49.pdf (showing only 11% of those surveyed followed the Microsoft trial "very closely"). Perhaps a hypothetical decision in one of those fields could be so controversial that it would attract substantial public attention. However, if that were the case, the Justices would likely have a good sense of the potential for controversy before reaching their decision. The run-of-the-mill decisions that the Court actually does reach in fields such as patents and antitrust are virtually guaranteed to escape public notice.
247. See Bd. of Trs. v. Garrett, 531 U.S. 356 (2001); United States v. Morrison, 529 U.S. 598 (2000); Kimel v. Fla. Bd. of Regents, 528 U.S. 62 (2000); Alden v. Maine, 527 U.S. 706 (1999); Coll. Sav. Bank v. Fla. Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666 (1999); Fla. Prepaid Postsecondary Educ. Expense Bd. v. Coll. Sav. Bank, 527 U.S. 627 (1999); Printz v. United States, 521 U.S. 898 (1997); City of Boeme v. Flores, 521 U.S. 507 (1997); Seminole Tribe v. Florida, 517 U.S. 44 (1996); United States v. Lopez, 514 U.S. 549 (1995); New York v. United States, 505 U.S. 144 (1992).
248. They did, however, have salience to the elite news media. Each of the eleven federalism decisions received front-page coverage in the New York Times. See LEE EPSTEIN, JEFFREY A. SEGAL, HAROLD J. SPAETH & THOMAS G. WALKER, THE SUPREME COURT COMPENDIUM: DATA, DECISIONS & DEVELOPMENTS 171-174 (4th ed. 2006) (providing a list of cases that were headlined in a front page story in the New York Times the day after the decision was handed down).
249. See Gallup Brain, http://brain.gallup.com/search/advanced.aspx (type "Supreme Court" into "This exact phrase" field, select "before January 1, 2007" and "after January 1, 1992," then click "search").
250. One study of several decisions at the end of the Supreme Court's 1988 term found that most survey respondents were aware of the Court's major, decisions on abortion, Webster v. Reprod. Health Servs., 492 U.S. 490 (1989), and flag burning, Texas v. Johnson, 491 U.S. 397 (1989), each of which received a good deal of news coverage. Charles H. Franklin & Liane C. Kosaki, Media Knowledge and Public Evaluations of the Supreme Court, in CONTEMPLATING COURTS 352, 364 (1995). However, the same study found that three other decisions that garnered attention from the news media were unknown to most of the respondents. Those decisions were on affirmative action, Martin v. Wilks, 490 U.S. 755 (1989), regulation of sexually oriented material, Sable Commc'ns v. FCC, 492 U.S. 115 (1989), and the death penalty, Stanford v. Kentucky, 492 U.S. 361 (1989).w
251. See Franklin & Kosaki, supra, at 366.
252. 347 U.S. 483 (1954).
253. Engel v. Vitale, 370 U.S. 421 (1962).
254. Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963).
255. 384 U.S. 436 (1966).
256. 410 U.S. 113 (1973).
257. Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265 (1978).
258. Gratz v. Bollinger, 539 U.S. 244 (2003); Grutter v. Bollinger, 539 U.S. 306 (2003).
259. 531 U.S. 98 (2000).
260. This awareness is suggested by surveys taken in the 1960s showing me strong relationship between attitudes toward the Supreme Court, on the one hand, and political ideology and attitudes related to ideology, on the other hand. See John H. Kessel, Public Perceptions of the Supreme Court, 10 MIDWEST J. POL. SCI. 167, 179, 185 (1966);
261. Walter F. Murphy & Joseph Tanenhaus, Public Opinion and the United States Supreme Court: Mapping of Some Prerequisites for Court Legitimation of Regime Changes, 2 L. & SOC'Y REV. 357, 371-73 (1968). For a thoroughgoing treatment of Warren Court decision making, especially the Court's path-breaking civil rights and civil liberties decisions from 1962 to 1969, see POWE, supra note 36, at 209-462 (discussing history of the Warren Court from the 1962 through 1968 terms).
262. See Marc J. Hetherington & Joseph L. Smith, Issue Preferences and Evaluations of the U.S. Supreme Court, 71 PUB. OPINION Q. 40 (2007);
263. See also Dahlia Lithwick, Spoonfuls of Sugar: Americans' Continued Love Affair with the John Roberts Court, SLATE, Sept. 26, 2009, http://www.slate.com/ id/2229517/ (discussing public perceptions of the Roberts Court as less conservative than it actually is).
264. There is also a broader issue concerning the overall salience of the Supreme Court to the general public. Consider, for example, the 2004 presidential election. Even though the Supreme Court had intervened in the 2000 presidential elections, the Court was a non-issue in 2004. The candidates, the press, and the voters largely ignored the fact that Chief Justice William H. Rehnquist announced-just one week before the election-that he underwent a tracheotomy in connection with a thyroid cancer diagnosis. See Neal Devins, Smoke, Not Fire, 65 MD. L. REV 197, 197 (2006). In one poll, only one percent of voters (out of 569 polled) ranked the Supreme Court as the most important factor in making their selection. Press Release, Pew Research Ctr, Moral Values: How Important? Voters Liked Campaign 2004, But Too Much 'Mud Slinging' 15 (Nov. 11, 2004), available at http://people-press.org/reports/pdf/233.pdf. In another poll, fewer than .5 percent (out of 900 polled) thought the Supreme Court should be President Bush's top priority. NationalJournal.com, Poll Track, Fox News/Opinion Dynamis: The Bush Administration, Supreme Court Nominations (Nov. 19, 2004), http://www.nationaljournal.com/members/polltrack/2004/todays/11/ 1119fox.htm. In a sense, these findings are quite unremarkable: the public had other issues of considerable urgency to consider. But the findings do underline the relative unimportance of the Supreme Court to the general public.
265. See Neal Devins, The D'Oh! of Popular Constitutionalism, 105 MICH. L. REV. 1333, 1335 (2007) (reviewing ROSEN, supra note 2); Gewirtzman, supra note 144, at 913-924
266. See, e.g., GIBSON & CALDEIRA, supra note 167; Gregory A. Caldeira, Neither the Purse Nor the Sword: Dynamics of Public Confidence in the Supreme Court, 80 AM. POL. SCI. REV. 1209 (1986);
267. Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 AM. J. POL. SCI. 635 (1992);
268. Robert H. Durr, Andrew D. Martin & Christina Wolbrecht, Ideological Divergence and Public Support for the Supreme Court, 44 AM. J. POL. SCI. 768 (2000);
269. Anke Grosskopf & Jeffery J. Mondak, Do Attitudes Toward Specific Supreme Court Decisions Matter?: The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court, 51 POL. RES. Q. 633 (1998);
270. Valerie J. Hoekstra, The Supreme Court and Local Public Opinion, 94 AM. POL. SCI. REV. 89 (2000); Mondak & Smithey, supra note 72; Murphy & Tanenhaus, supra note 183.
271. The key issues involve conceptualization and measurement of attitudes toward the Court. Some measures of those attitudes tap evaluations of the Court's decisional output or its current membership (sometimes labeled "specific support") instead of, or in addition to, deeper views about the Court as an institution (sometimes labeled "diffuse support"). See James L. Gibson, Gregory A. Caldeira & Lester Kenyatta Spence, Measuring Attitudes Toward the United States Supreme Court, 47 AM. J. POL. SCI. 354, 355 (2003).
272. Scholars have widely adopted David Easton's distinction between specific and diffuse support for political institutions. Specific support "can be closely associated with the satisfactions obtained from specific classes of output" such as public policy. DAVID EASTON, A SYSTEMS ANALYSIS OF POLITICAL LIFE 268 (1965). In contrast, diffuse support is "a reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which mey are opposed or the effect of which they see as damaging to their wants." Id. at 273. Diffuse support is similar to, if not synonymous with, legitimacy. The task of designing survey items mat capture diffuse support is not easy. Gibson, Caldeira, and Spence argue persuasively that standard measures of confidence in the "people running" the Supreme Court and similar measures capture specific rather than diffuse support and that questions about maintaining the Court's institutional integrity and powers capture diffuse support most effectively. Gibson, Caldeira, & Spence, supra, at 355-365 For this reason, we give the greatest weight to their findings and those of other studies by Gibson and Caldeira that use their favored measures.
273. See Durr, Martin & Wolbrecht, supra note 187, at 772-75 (finding that reactions to specific decisions affect support for the court ); Grosskopf & Mondak, supra note 187, at 644-52 (same); Hoekstra, supra note 187, at 96-98 (same).
274. See Mondak & Smithey, supra note 72, at 1134-1140 (examining reasons why the Supreme Court maintains stable support over time).
275. See Caldeira & Gibson, supra note 187, at 650-55, 658-61; Gibson, Caldeira & Spence, supra note 188, at 358-359 (presenting data demonstrating that four out of five Americans do not think the court should be eliminated, even if there were strong public disapproval for its decisions).
276. See James L. Gibson, The Legitimacy of the U.S. Supreme Court in a Polarized Polity, 4 J. EMPIRICAL LEGAL STUD. 507, 517-523 (2007).
277. 531 U.S. 98 (2000).
278. Id. at 157-158 (Breyer, J., dissenting) ("[I]n this highly politicized matter, the appearance of a split decision runs the risk of undermining the public's confidence in the Court itself.").
279. Herbert M. Kritzer, The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court, 85 JUDICATURE 32, 34-36 (2001);
280. See also Vincent Price & Anca Romantan, Confidence in Institutions Before, During, and After "Indecision 2000," 66 J. POL. 939, 949-953 (2004) (finding a polarization of attitudes toward the Supreme Court in response to Bush v. Gore).
281. Jeffrey L. Yates & Andrew B. Whitford, The Presidency and the Supreme Court After Bush v. Gore: Implications for Institutional Legitimacy and Effectiveness, 13 STAN. L. & POL'Y REV. 101, 113 (2002). About 30 percent of all respondents said that they had lost confidence in the Court
282. Id.
283. See GIBSON & CALDEIRA, supra note 167, at 45-47; James L. Gibson, Gregory A. Caldeira & Lester Kenyatta Spence, The Supreme Court and the US Presidential Election of 2000: Wounds, Self-inflicted or Otherwise?, 33 BRIT. J. POL. SCI. 535, 539-45 (2003) (finding that the legitimacy of the Court was not undermined by the Court's decision).
284. See generally Stephen P. Nicholson & Robert M. Howard, Framing Support for the Supreme Court in the Aftermath of "Bush v. Gore," 65 J. POL. 676 (2003) (finding that the manner in which the Court's decision was depicted to survey respondents affected their perceptions of the Court's legitimacy).
285. Gibson, Caldeira & Spence, supra note 197, at 555.
286. GIBSON & CALDEIRA, supra note 167, at 7-12.
287. Id. at 7-8; Gibson, Caldeira & Spence, supra note 197, at 555.
288. See GIBSON & CALDEIRA, supra note 167, at 96-120.
289. See James L. Gibson & Gregory A. Caldeira, Blacks and the United States Supreme Court: Models of Diffuse Support, 54 J. POL. 1120 (1992).
290. ROSEN, supra note 2, at 14. See generally CHARLES GARDNER GEYH, WHEN COURTS & CONGRESS COLLIDE: THE STRUGGLE FOR CONTROL OF AMERICA'S JUDICIAL SYSTEM (2006) (exploring the nature and extent of the federal judiciary's independence and its relationship with the Congress).
291. Among public officials and political activists, in recent years there have been widespread attacks on judicial independence, attacks that key on "judicial activism"; these criticisms have led to various proposals for increased congressional oversight of the federal judiciary. See, e.g., MARK C. MILLER, THE VIEW OF THE COURTS FROM THE HILL: INTERACTIONS BETWEEN CONGRESS AND THE FEDERAL JUDICIARY 156-84 (2009). Despite these attacks, however, the evidence from surveys of the mass public indicates that the Supreme Court's legitimacy remains strong.
292. In addition to Justice Breyer's statement in Bush v. Gore, 531 U.S 98, 157-58 (2000) (Breyer, J., dissenting), examples include Payne v. Tennessee, 501 U.S. 808, 855 (1991) (Marshall, J., dissenting), and the well-known discussion of legitimacy considerations in the joint opinion of Justices O'Connor, Kennedy, and Souter in Planned Parenthood v. Casey, 505 U.S. 833, 865-69 (1992). During the time between his two periods of service on the Court, Charles Evans Hughes wrote a book in which he cited three "self-inflicted wounds"-decisions that he thought had weakened the Court's legitimacy. CHARLES EVANS HUGHES, THE SUPREME COURT OF THE UNITED STATES: ITS FOUNDATION, METHODS, AND ACHIEVEMENTS: AN INTERPRETATION 50-54 (1928).
293. See also FRIEDMAN, supra note 1, at 371 (quoting statements by Justice Rehnquist and Justice O'Connor acknowledging the Court's reliance on public support).
294. See supra section II.A.
295. TOM S. CLARK, THE LIMITS OF JUDICIAL INDEPENDENCE (forthcoming 2011) (manuscript at ch. 4, on file with authors).
296. See ROSEN, supra note 2, at 2-3.
297. See generally Devins, supra note 48; Rosenfeld, supra note 59, at 24-27.
298. See BAUM, supra note 112, at 207-9; GEYH, supra note 203, at 109-11; Devins, supra note 48, at 1337;
299. cf. John Ferejohn, 72 S. CAL. L. REV. 353, 380-381 (1999) (discussing executive branch compliance with Supreme Court decision making)
300. For a strong version of this position, see Segal, supra note 48 (arguing that retaliation risks are too low to ever be consequential). For a weaker (and we think more accurate) version, see supra text accompanying note 59.
301. See supra note 48.
302. One commentary, for instance, argues that Justices avoid overturning precedents and deciding issues that the parties do not raise because both types of behavior are viewed as illegitimate by the public. See EPSTEIN & KNIGHT, supra note 3, at 157-177
303. THOMAS MARSHALL, PUBLIC OPINION AND THE SUPREME COURT 78 (1989) [hereinafter MARSHALL, SUPREME COURT] (providing evidence that from 1935 to 1986, 56 percent of decisions were consistent with public opinion, 33 percent were inconsistent, and 11 percent were unclear); MARSHALL, supra note 14, at 37 (providing evidence that from 1986 to 2005, 61 percent of decisions were consistent with public opinion, 35 percent were inconsistent, and 4 percent were unclear).
304. MARSHALL, supra note 14, at 48.
305. Peter Hanson, Flag Burning, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY 184, 187 (Nathaniel Persily, Jack Citrin & Patrick J. Egan eds., 2008);
306. See also ROBERT JUSTIN GOLDSTEIN, FLAG BURNING AND FREE SPEECH 112-13 (2000). The decisions in question were Texas v. Johnson, 491 U.S. 397 (1989), and United States v. Eichman, 496 U.S. 310 (1990).
307. Alison Gash & Angelo Gonzales, School Prayer, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY, supra note 215, at 62, 69. The decisions in question were Engel v. Vitale, 370 U.S. 421 (1962), and Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963).
308. Janice Nadler, Shari Seidman Diamond & Matthew M. Patton, Government Takings of Private Property, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY, supra note 215, at 286, 297. The decision in question was Kelo v. City of New London, 545 U.S. 469 (2005).
309. See MARSHALL, SUPREME COURT, supra note 213, at 104-30; MARSHALL, supra note 14, at 77-105.
310. That a Justice agrees with the public is of only limited relevance in assessing whether or not public opinion independently influences a Justice's decision making. See infra notes 228-232 and accompanying text.
311. See MARSHALL, SUPREME COURT, supra note 213, at 16-26 (identifying twelve linkages between public opinion and the Court).
312. See Dahl, supra note 10, at 284-286
313. Even though some law professors have spoken of the Court's ability to lead a nationwide conversation on divisive constitutional issues, it seems unlikely that this effect is strong. However, there is some evidence that the Court has an impact on public opinion. VALERIE J. HOEKSTRA, PUBLIC REACTION To SUPREME COURT DECISIONS 87-114 (2003) (finding that in the geographic areas from which four cases came, opinion moved in the direction of the Court's decision on the issues in two cases);
314. Brandon L. Bartels & Diana C. Mutz, Explaining Processes of Institutional Opinion Leadership, 71 J. POL. 249, 255-259 (2009) (finding that association of an issue position with the Supreme Court increased support for that position on two controversial issues).
315. Two studies found evidence that public opinion on issues became more polarized after the Supreme Court's initial major rulings on those issues. Charles Franklin & Liane C. Kosaki, Republican Schoolmaster: The U.S. Supreme Court, Public Opinion, and Abortion, 83 AM. POL. SCI. REV. 751, 761-762 (1989) (abortion);
316. Timothy R. Johnson & Andrew D. Martin, The Public's Conditional Response to Supreme Court Decisions, 92 AM. POL. SCI. REV. 299, 304-306 (1998) (death penalty).
317. It is impossible to calculate the relative frequencies in a more conclusive way, for there is no way of knowing whether the Justices know about public opinion and whether that information is salient to them in a given case.
318. Compare A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 551 (1935), and Carter v. Carter Coal Co., 298 U.S. 238, 289-97 (1936), with Nat'l Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U.S. 1, 49 (1937), and Wickard v. Filburn, 317 U.S. 111, 128-29 (1942).
319. Compare Yates v. United States, 354 U.S. 298, 321-22 (1957), with Barenblatt v. United States, 360 U.S. 109,134 (1959), and Uphaus v. Wyman, 360 U.S. 72, 81-82 (1959).
320. Compare Furman v. Georgia, 408 U.S. 238, 239-40 (1972), with Gregg v. Georgia, 428 U.S. 153, 206-07 (1976).
321. Compare Miranda v. Arizona, 384 U.S. 436, 478-79 (1966), with Harris v. New York, 401 U.S. 222, 226 (1971), and United States v. Calandra, 414 U.S. 338, 353-55 (1974).
322. For a review of the scholarly debate on the cause for the Court's 1937 "switch in time," see AHR Forum: The Debate Over the Constitutional Revolution of 1937, 110 AM. HIST. REV. 1046 (2005) (presenting a series of articles representing different sides of the academic debate).
323. See WILLIAM G. ROSS, THE CHIEF JUSTICESHIP OF CHARLES EVANS HUGHES, 1930-1941, at 135 (2007) (acknowledging that the threat of court packing may have influenced Court decision making but arguing that public opinion was a more likely influence on the Court).
324. For alternative explanations for the 1976 decisions, see LEE EPSTEIN & JOSEPH F. KOBYLKA, THE SUPREME COURT AND LEGAL CHANGE: ABORTION AND THE DEATH PENALTY 99-115 (1992). It is also possible that the Justices simply responded to the differences between the features of the earlier death penalty and those enacted in response to its 1972 decisions.
325. See supra notes 39-42 and accompanying text.
326. See, e.g.. Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992).
327. See, e.g., Bd. of Educ. v. Dowell, 498 U.S. 237, 250 (1991).
328. See DEVINS & FISHER, supra note 11, at 131-39 (2004) (detailing elected government opposition to Roe); id at 159-161 (discussing elected government opposition to forced busing).
329. See Texas v. Johnson, 491 U.S. 397, 420 (1989); see also supra note 215 and accompanying text.
330. See United States v. Eichman, 496 U.S. 310, 318-319 (1990).
331. See Engel v. Vitale, 370 U.S. 421, 430-433
332. See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203, 226-227 (1963).
333. See, e.g., Lee v. Weisman, 505 U.S. 577, 599 (1992) (holding that a public school cannot invite clergy to offer nonsectarian prayers at official graduation ceremonies); Wallace v. Jaffree, 472 U.S. 38, 60-61 (1985) (striking down a state statute that authorized a moment of silence "for meditation or voluntary prayer" in school).
334. For evidence of continuing public disapproval, see Knowledge Networks, Field Report: Attitudes & Perceptions About the Constitution 52 (July 23, 2009) (study conducted for the Massachusetts Institute of Technology, on file with authors) (indicating 67.2% of respondents believe public schools should be permitted to start each school day with a prayer).
335. See Kennedy v. Louisiana, 128 S. Ct. 2641, 2664 (2008). A Quinnipiac University poll a few weeks after the decision found a 55%-38% majority opposed to the Court's position. Press Release, Quinnipiac Univ. Polling Inst., American Voters Oppose Same-sex Marriage Quinnipiac University National Poll Finds, But They Don't Want Government To Ban It (July 17, 2008), http://www.quinnipiac.edu/ x1284.xml?ReleaseID=1194&What=&strArea=;&strTime=24; see also Knowledge Networks, supra note 240, at 51 (indicating 68.1% of survey respondents said the government should be allowed to apply the death penalty for a person convicted of raping a child).
336. See Kennedy v. Louisiana, 129 S. Ct. 1, 1 (2008). The willingness of the Court to adhere to rulings at odds with public opinion is also revealed in a July 2009 M.I.T. survey of attitudes and perceptions about the Constitution. Knowledge Networks, supra note 240. Based on July 2009 polling data from 1700 Americans, the MIT study highlighted several instances when the Court's decision remained unpopular with the public but the Court had not acted to change its position. Prominent examples include affirmative action in university admissions (69% oppose the Court's ruling), id. at 49, school prayer (67% disagreement rate), id. at 52, access of non-citizens to courts to challenge detentions (61% disagreement rate), id. at 55, and eminent domain (81% disagreement rate), id. The MIT poll did not distinguish between the type of affirmative action plan upheld by the Supreme Court in Grutter v. Bollinger, 539 U.S. 306 (2003), from the plan invalidated in Gratz v. Bollinger, 539 U.S. 244 (2003). Under the wording of the poll, the public agreed with Gratz and disagreed with Grutter. As a practical matter, however, Grutter empowers universities to make use of race preferences, see Grutter, 539 U.S. at 343-and, as such, the public does oppose the Court's approval of Grutter-like affirmative action plans.
337. See Flemming & Wood, supra note 72; Micheal W. Giles, Bethany Blackstone & Richard L. Vining, Jr., The Supreme Court in American Democracy: Unraveling the Linkages Between Public Opinion and Judicial Decision Making, 70 J. POL. 293 (2008);
338. Michael W. Link, Tracking Public Mood in the Supreme Court: Cross-time Analyses of Criminal Procedure and Civil Rights Cases, 48 POL. RES. Q. 61 (1995);
339. McGuire & Stimson, supra note 71; William Mishler & Reginald S. Sheehan, Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-analytic Perspective, 58 J. POL. 169 (1996);
340. Mishler & Sheehan, supra note 72; Helmut Norpoth & Jeffrey A. Segal, Popular Influence on Supreme Court Decisions: Comment, 88 AM. POL. SCI. REV. 711 (1994).
341. See JAMES A. STIMSON, PUBLIC OPINION IN AMERICA: MOODS, CYCLES, AND SWINGS 37-66 (2d ed. 1999).
342. Mishler & Sheehan, supra note 72, at 93-94. The implications of that lag are discussed in Norpoth & Segal, supra note 243, at 712-15, and Giles, Blackstone & Vining, supra note 243, at 302. For a provocative critique of studies that show a link between public opinion and Supreme Court decision making, see Lee Epstein & Andrew D. Martin, Does Public Opinion Influence the Supreme Court?: Possibly Yes (But We're Not Sure Why), 13 U. PA. J. CONST. L. (forthcoming 2010-2011, on file with authors) (arguing that existing studies on the relationship between public opinion and Court decision making aggregate data term-by-term and do not consider important "case level" differences). Based on their case-level analysis, Epstein and Martin note that the Court operates in tandem with the mass public-so that Court decisions reflect whether me public is conservative or liberal at a particular moment in time. At the same time, they are uncertain whether the mass public exerts a direct influence on the Court or, instead, whether "the same things that influence public opinion may influence the Justices, who are, after all members of the public too." Id. (manuscript at 19). For additional discussion of how the Court may be shaped by societal attitudes, see supra notes 19-29 and accompanying text.
343. Mishler & Sheehan, supra note 72, at 94-95.
344. Flemming & Wood, supra note 72, at 484.
345. The measure of salience was one commonly used in research on the Supreme Court: whether a decision was reported on the front page of the New York Times. See Lee Epstein & Jeffrey A. Segal, Measuring Issue Salience, 44 AM. J. POL. SCI. 66, 72 (2000).
346. Giles et al., supra note 243, at 300-303 This latter finding also raises questions about the influence of elite groups on the Court because elites as well as the general public are likely to have stronger views about cases that receive front page coverage in an elite-oriented newspaper. But elite groups with which Justices identify undoubtedly tend to have views about a broader range of cases man those that are salient to the general public. Probing me issues addressed in this study, another study found that the influence of the public mood was about as great in salient cases as it was in other cases. Christopher J. Casillas, Peter K. Enns & Patrick C. Wohlfarth, How Public Opinion Constrains the Supreme Court 25 (Feb. 2, 2009) (unpublished manuscript, available at http://www.unc.edu/polisci/aprg/pdfs/SC-Public%20Opinion%20-%202-2- 09.pdf).
347. Giles et al., Supra note 243, at 295.
348. See supra Part I. As discussed in section II.C, elites may influence public attitudes. If so, and if elite attitudes are more closely aligned with the Supreme Court's positions, the effect may be to move the public closer to the Court over time.
349. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 641 (1989) (Marshall, J. dissenting).
350. It is impossible to distinguish systematically in this context between the effects of changing public attitudes and the effects of changes in the Justices' own attitudes. However, in the cases of both drugs and women's rights, the strength and stability of the Court's position suggests that the Justices were acting on their own attitudes rather than responding reluctantly to public pressure. See supra notes 27-28 and accompanying text (describing changes in the Justices' attitudes towards women and corresponding changes in the law).
351. See supra section II.C.
352. See infra section III.C.
353. See FRIEDMAN, supra note 1.
354. See ROSEN, supra note 2.
355. See FRIEDMAN, supra note 1, at 375; ROSEN, supra note 2, at xii-xiii.
356. See FRIEDMAN, supra note 1, at 376.
357. See ROSEN, supra note 2, at 185.
358. See supra notes 38-39 and accompanying text (noting the divergence between the Warren Court and public opinion).
359. Jeffrey Rosen analyzes several strands of the Warren Court's constitutional jurisprudence and argues that the Court was basically in tune with public opinion in many instances, including in decisions on school segregation, contraception, religion in public schools, and criminal procedure. ROSEN, supra note 2, at 59, 89-90, 169. He does, however, note the conflict wim Congress that was engendered by some of the Court's decisions on issues related to internal security. Id. at 165-66. Lucas Powe does not focus on public opinion but argues that "the Court was a functioning part of the Kennedy-Johnson liberalism of the mid and late 1960s." LUCAS A. POWE, JR., THE WARREN COURT AND AMERICAN POLITICS 494 (2000).
360. FRIEDMAN, supra note 1, at 245.
361. Id. at 269.
362. Id. at 273; see Gideon v. Wainwright, 372 U.S. 335 (1963) (holding that the Sixth Amendment right to counsel is incorporated against the states through the Fourteenth Amendment).
363. FRIEDMAN, supra note 1, at 252-53, 264-265 (arguing that the Court miscalculated public opinion in cases on Communist activities and school prayer).
364. Id. at 261-262
365. Id. at 14.
366. See infra section III.C.
367. See supra notes 144-145 and accompanying text.
368. In making this point, we are not saying that Supreme Court Justices can never anticipate moves in public opinion. For the most part, however, it is guesswork to predict future public opinion. For a related discussion of whether Supreme Court Justices can assess potential public outrage to decisions that might vary from public opinion, see Cass R. Sunstein, If People Would Be Outraged by Their Decisions, Should Judges Care?, 60 STAN. L. REV. 155, 176 (2007).
369. The most prominent example of Warren Court decision making frustrating (easily discernible) public opinion was its constitutionalizing criminal procedure and, in so doing, "policing the police." See POWE, supra note 36, at 379-444.
370. See generally Devins & Federspiel, supra note 7 (applying social psychology model to the Warren Court); Nancy Staudt, Barry Friedman & Lee Epstein, On the Role of Ideological Homogeneity in Generating Consequential Constitutional Decisions, 10 U. PA. J. CONST. L. 361 (2008) (discussing "the effect of ideological diversity on the nature of the decisions Justices render" and arguing that "the greater the homogeneity of the majority, the higher the likelihood of a consequential decision").
371. On elite influence, see infra section III.C.
372. FRIEDMAN, supra note 1, at 255-258, 264.
373. On the general influence of amicus briefs in the Supreme Court, see PAUL M. COLLINS JR., FRIENDS OF THE SUPREME COURT: INTEREST GROUPS AND JUDICIAL DECISION MAKING 75-164 (2008) (showing several types of influence for amicus briefs);
374. Ruth Colker, Justice Sandra Day O'Connor's Friends, 68 OHIO ST. L.J. 517, 521-529 (2007) (summarizing literature);
375. Paul M. Collins Jr., Lobbyists Before the U.S. Supreme Court: Investigating the Influence of Amicus Curiae Briefs, 60 POL. RES. Q. 55, 63 (2007) (finding a relationship between the numbers of amicus briefs on each side and the Supreme Court's decisions);
376. Joseph D. Kearney & Thomas W. Merrill, The Influence of Amicus Curiae Briefs on the Supreme Court, 148 U. PA. L. REV. 743, 829-830 (2000) (noting that large disparities in total numbers of amicus briefs between parties do not increase the success rates of more supported parties);
377. James F. Spriggs, II & Paul J. Wahlbeck, Amicus Curiae and the Role of Information at the Supreme Court, 50 POL. RES. Q. 365 (1997) (analyzing the Supreme Court's use of arguments from amicus briefs).
378. By focusing on the question of which elites file before the Court and whether there is a consensus among those elites, our analysis varies from existing studies of amicus briefs, see supra note 276.
379. Kelly Lynch, Best Friends?: Supreme Court Law Clerks on Effective Amicus Curiae Briefs, 20 J.L. & POL. 33, 51-52 (2004).
380. 539 U.S. 306, 343 (2003).
381. Boumediene v. Bush, 553 U.S. 723 (2008); Hamdan v. Rumsfeld, 548 U.S. 557 (2006); Hamdi v. Rumsfeld, 542 U.S. 507 (2004); Rasul v. Bush, 542 U.S. 466 (2004).
382. See Neal Devins, Explaining Grutter v. Bollinger, 152 U. PA. L. REV. 347, 366 (2003).
383. Id. at 369.
384. Id. at 368.
385. Id. at 367-369
386. Though the Bush administration filed a brief arguing that the Michigan programs were unconstitutional, it "sought to steer a middle path" by acknowledging its support for racial diversity in education and supporting the use of race as a "plus factor." Id. at 370-372
387. This paragraph is drawn from Neal Devins, Talk Loudly and Carry a Small Stick: The Supreme Court and Enemy Combatants, 12 U. PA. J. CONST. L. 491, 499-503 (2010).
388. Id. at 500 (noting that academics, including John McGinnis and Abraham Sofaer, filed a brief supporting the Bush administration).
389. Id.
390. Id.
391. Id. at 500-503 Fifteen top newspapers were surveyed. Most (including the New York Times, Boston Globe, and Los Angeles Times) have a liberal bent but others critical of the administration do not have a predictably liberal bent (San Diego Union, Washington Times). See id. at 502.
392. In United States v. Virginia, Justice Scalia complained in his dissenting opinion that the Court "has embarked on a course of inscribing one after another of the current preferences of the society (and in some cases only the counter-majoritarian preferences of the society's law-trained elite) into our Basic Law." 518 U.S. 515, 567 (1996).
393. Indeed, Justice O'Connor's opinion for the Court in Grutter v. Bollinger cited briefs from the business and military communities on the value of affirmative action. 509 U.S. 306, 330-331 (2003).
394. See BAUM, supra note 7, at 46-47 (recognizing that judges often link themselves to groups that accord with their preferences, but arguing that those groups nonetheless exert independent influences on judges).
395. 443 U.S. 368, 391 (1979). Writing for the Court, Justice Stewart suggested that the Sixth Amendment did not confer a right of access to criminal trials to members of the press because this right belonged solely to the defendant. Id. at 385-87. In addressing pretrial hearings, specifically, the Court found the historical evidence was particularly strong in support of the conclusion that the Framers did not intend the Sixth Amendment to confer a right to the public to attend criminal pretrial proceedings, even assuming it conferred such right to criminal trials. Id. at 387-91. The scope of the majority's opinion on the Sixth Amendment was "clouded by concurring opinions," one of which treated the majority opinion as applicable to all criminal trials and another limiting the holding to criminal pretrial proceedings. Anthony Lewis, A Public Right to Know About Public Institutions: The First Amendment as Sword, 1980 SUP. CT. REV. 1, 11-12 (1980).
396. Lewis, supra note 294, at 13 & nn. 101-103
397. 448 U.S. 555, 580 (1980).
398. Chief Justice Warren Burger, Justice Potter Stewart, and Justice John Paul Stevens were in the majority in both cases. However, in Gannett, the Chief Justice had written a concurring opinion emphasizing that the case involved a pretrial proceeding and not a trial. Gannett, 443 U.S. at 394-397
399. Lewis, supra note 294, at 2 & nn.9, 16.
400. The three Justices were Chief Justice Burger, Justice Stevens, and Justice Stewart. See id. at 16-18.
401. 310 U.S. 586, 599-600 (1940).
402. Id. at 591-592
403. 319 U.S. 624, 642 (1943).
404. DAVID R. MANAWARING, RENDER UNTO CAESAR: THE FLAG-SALUTE CONTROVERSY 149 (1962).
405. Id. At 153-159 (citing the New Republic, Christian Century, America, Harvard Educational Review, Los Angeles Times, St. Louis Dispatch, and Christian Science Monitor among the magazines and newspapers suggesting the Court may have succumbed to popular pressure and placed constitutional rights at risk);
406. See also ALPHEUS THOMAS MASON, HARLAN FISKE STONE: PILLAR OF THE LAW 532 (1956) ("One hundred and seventy-one leading newspapers promptly condemned the decision.");
407. JOHN T. NOONAN, JR., THE BELIEVER AND THE POWERS THAT ARE 250-251 (1987).
408. H.N. HIRSCH, THE ENIGMA OF FELIX FRANKFURTER 152 (1981). Justice Douglas later offered a different explanation for the changed positions of Justice Black and himself.
409. WILLIAM O. DOUGLAS, THE COURT YEARS 1939-1975: THE AUTOBIOGRAPHY OF WILLIAM O. DOUGLAS 44-45 (1980). The two Justices, along with Justice Murphy, had indicated their change of mind on Gobitis in a joint dissenting opinion in Jones v. City of Opelika, 316 U.S. 584, 623-24 (1942).
410. See SHAWN FRANCIS PETERS, JUDGING JEHOVAH'S WITNESSES: RELIGIOUS PERSECUTION AND THE DAWN OF THE RIGHTS REVOLUTION 72-95 (2000) (discussing violent attacks after the Gobitis decision); DEVINS & FISHER, supra note 11, at 199-200 (discussing both violent attacks against Jehovah's Witnesses and efforts by Congress and the Department of Justice to disavow rigidly enforced flag salute statutes).
411. See supra note 187.
412. See Klarman, supra note 106, at 189-191 & n.245 (explaining that the higher a person's level of education, the more likely that person will hold socially liberal views, which in turn helps to explain the socially liberal decisions from the relatively conservative Burger and Rehnquist Courts).
413. See Serena Mayeri et al., Gender Equality, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY, supra note 215, at 139, 148 tbl.6.1, 150, 156 tbl.6.2, 157, 159 app. A.
414. Patrick J. Egan, Nathaniel Persily & Kevin Wallsten, Gay Rights, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY, supra note 215, at 234, 238 tbl.10.1, 246 tbl.10.2, 247-248, 257 app. A, 259 app. B.
415. See Samantha Luks & Michael Salamone, Abortion, in PUBLIC OPINION AND CONSTITUTIONAL CONTROVERSY, at 80, 93 tbl.4.3, 97;
416. See also Donald Granberg & Beth Wellman Granberg, Abortion Attitudes, 1965-1980: Trends and Determinants, 12 FAMILY PLANNING PERSPECTIVES 250, 254 (1980) (analyzing statistical data to conclude that "formal education is the best predictor of abortion attitudes").
417. See Gash & Gonzales, supra note 216, at 71 tbl.3.2, 73 tbl.3.3, 76; see also Kirk W. Elifson & C. Kirk Hadaway, Prayer in Public Schools: When Church and State Collide, 49 PUB. OPINION. Q. 317, 321, 324 (1985) (reproducing survey results from 1974, 1980, and 1984 indicating that the higher a person's level of education, the less likely that person will favor prayer in public school).
418. See Hanson, supra note 215, at 189 tbl.8.2, 191 tbl.8.3, 194 tbl.8.4.
419. Tomiko Brown Nagin, Elites, Social Movements, and the Law: The Case of Affirmative Action, 105 COLUM. L. REV. 1436, 1440-1441 (2005);
420. See also Devins, supra note 281, at 366-370 (noting support in amicus filings in Grutter v. Bollinger by various elite groups).
421. The percentages in the table were derived from public opinion poll data that were analyzed, using the SPSS statistical package, to disaggregate the data by education level. Data tables showing responses by education level are on file with the authors. Percentages are of respondents who took a position on one side of the issue.
422. In the surveys on school prayer and flag burning, "post- graduate" refers to a degree beyond an undergraduate degree. In the other surveys, "post-graduate" refers to education beyond the undergraduate degree.w
423. See Univ. of Mich., Survey Research Ctr., Pre-election Study 13 (Sept.-Nov. 1964) (data file available at ftp://ftp.electionstudies.org/ftp/nes/ studypages/1964prepost/anes1964por.zip). The question was worded as follows: "Some people think it is all right for the public schools to start each day with a prayer. Others feel that religion does not belong in the public schools but should be taken care of by the family and the church." Have you been interested enough in this to favor one side over the other? Univ. of Mich., Survey Research Ctr., Pre-election Study 13 (Sept.-Oct. 1964), available at http://www.electionstudies.org/stadypages/1964prepost/1964prepost-qnaire-pre. pdf (last visited Feb. 25, 2010). Respondents who answered in the affirmative were then asked: "Which do you think: 1. Schools be allowed to start each day with a prayer or 5. Religion does not belong in the schools." Id.
424. See Univ. of Mich., Survey Research Ctr., Post-election Survey, 1990 National Election Studies 59 (Nov. 1990-Jan. 1991) (data file available at ftp://ftp.electionstudies.org/ftp/nes/studypages/1990post/anes1990por.zip). The question was worded as follows: "Should burning or destroying the American flag as a form of political protest be legal or should it be against the law?" Post-election Survey, 1990 National Election Studies 59 (1990), available at http://www.electionstudies.org/studypages/1990post/1990post-qnaire. pdf.
425. See Gallup Org., Gallup News Service Poll # 2003-37: Terrorism/Homosexual Civil Unions/Iraq/Children/College/Dangerous Drivers 10 (July 18-20, 2003) (produced by the Gallup Organization) (version distributed by The Roper Center, University of Connecticut), available at http://webapps.roper-center.uconn.edu/ CFIDE/cf/action/catalog/abstract.cfm?label=&keyword=USAIPOGNS2003+37& fromDate=&toDate=&organization=Any&type=&keywordOptions= 1&start=1&id=&exclude=&excludeOptions=1&topic= Any&sortBy=DESC&archno=USAIPOGNS2003-37&abstract=abstract&x= 21&y=16. The question was worded as follows: "Do you think homosexual relations between consenting adults should or should not be legal?" Id.
426. See NBC News & The Wall Street Journal, Hart-Teeter/NBC/WSJ Poll # 6030: 2004 Presidential Election/Bush/Economic Policy/The Economy/Iraq/North Korea 20 (Jan. 19-21, 2003) (produced by the Hart-Teeter Research Companies) (version distributed by The Roper Center, University of Connecticut), available at http://webapps.ropercenter.uconn.edu/CFIDE/cf/action/catalog/abstract.cfm? label=&keyword=USNBCWSJ2003+6030&fromDate=&toDate=&organization= Any&type=&keywordOptions=1&start=1&id=&exclude= &excludeOptions=1&topic=Any&sortBy=DESC&archno= USNBCWSJ2003-6030&abstract=abstract&x=32&y=11. The question was worded as follows: "As you may know, the U.S. Supreme Court will be deciding whether public universities can use race as one of the factors in admissions to increase diversity in the student body. Do you favor or oppose this practice?" Id. For additional discussion, see supra note 242, noting that polling on affirmative action is complicated by the fact that the Supreme Court issued two somewhat competing 2003 decisions on race preferences in university admissions.
427. See Pew Research Ctr. for the People & the Press, Pew/PSRAI Poll # 2005-RELIG: Religion and Public Life 2005, at 12 (July 7-17, 2005) (produced by Princeton Survey Research Associates International) (version distributed by The Roper Center, University of Connecticut), available at http://webapps. ropercenter.uconn.edu/CFIDE/cf/action/catalog/abstract.cfm?label=&keyword= USPEW2005-RELIG&fromDate=&toDate=&organization=Any&type= &keywordOptions=1&start=1&id=&exclude=&excludeOptions= 1&topic=Any&sortBy=DESC&archno=USPEW2005-RELIG&abstract= abstract&x=32&y=9. The question was worded as follows: "All in all, do you strongly favor, favor, oppose, or strongly oppose ⋯ [t]he death penalty for persons convicted of murder when they were under the age of 18?" Id.
428. See ABC News & The Wash. Post, ABC News/Washington Post Poll # 2008-1065: June Monthly-2008 Presidential Election/Iraq/Race Relations 9 (June 12-15, 2008) (version distributed by The Roper Center, University of Connecticut), available at http://webapps.ropercenter.uconn.edu/CFIDE/cf/action/ catalog/abstract.cfm?label=&keyword=USABCWASH2008+1065&fromDate= &toDate=&organization=Any&type=&keywordOptions=1&start= 1&id=&exclude=&excludeOptions=1&topic=Any&sortBy= DESC&archno=USABCWASH2008-1065&abstract=abstract&x=28&y=14. The question was worded as follows: The U.S. Supreme Court has ruled that non-citizens suspected of terrorism who are being held in Guantanamo Bay, Cuba, should be allowed to challenge their detentions in the U.S. civilian court system ⋯. What's your view-do you think these detainees should or should not be able to challenge their detentions in the civilian court system? Id.
429. Romer v. Evans, 517 U.S. 620, 636 (1996) (Scalia, J., dissenting); see also Lawrence v. Texas, 539 U.S. 558, 602 (2003) (Scalia, J., dissenting) ("Today's opinion is the product of a Court, which is the product of a law-profession culture, that has largely signed on to the so-called homosexual agenda ⋯."). See also supra note 291 for a quote from Justice Scalia's dissenting opinion in United States v. Virginia, specifically singling out law professionals as having exerted too great an influence on the Court.
430. Responding to Romer v. Evans, legal scholar Lino Graglia emphasized what he saw as the influence of "America's cultural elite" over the Court. Lino A. Graglia, Romer v. Evans; The People Foiled Again by the Constitution, 68 U. COLO. L. REV. 409, 409-10, 412 (1997).
431. See Sch. Dist. of Abington Twp. v. Schempp, 374 U.S. 203 (1963); Engel v. Vitale, 370 U.S. 421 (1962).
432. See United States v. Eichman, 496 U.S. 310 (1990); Texas v. Johnson, 491 U.S. 397 (1989).
433. FRIEDMAN, supra note 1, at 378.
434. See Klarman, supra note 106, at 190 (explaining that, historically, the Court's decisions initially represented the elite's concern with the protection of property rights before shifting to social and cultural issues).
435. This discussion draws from BAUM, supra note 7, at 139-155
436. RICHARD REEVES, PRESIDENT NIXON: ALONE IN THE WHITE HOUSE 338 (2001).
437. See JOHN W. DEAN, THE REHNQUIST CHOICE: THE UNTOLD STORY OF THE NIXON APPOINTMENT THAT REDEFINED THE SUPREME COURT 171 (2001);
438. LINDA GREENHOUSE, BECOMING JUSTICE BLACKMUN: HARRY BLACKMUN'S SUPREME COURT JOURNEY 48 (2005).
439. The term was popularized by federal appeals court Judge Laurence Silberman. See Laurence Silberman, Circuit Judge, Speech Delivered to the Federalist Society (June 14, 1992), in Attacking Activism, Judge Names Names, LEGAL TIMES, June 22, 1992, at 14;
440. See also Martin Tolchin, Press is Condemned by a Federal Judge for Court Coverage, N.Y. TIMES, June 15, 1992 at A13 (quoting Silberman). Silberman credited Sowell with the phrase; Sowell used the phrase in Thomas Sowell, Blackmun Plays to the Crowd, ST. LOUIS POST-DISPATCH, Mar. 4, 1994, at 7B.
441. Sowell, supra note 332.
442. See, e.g., MAX BOOT, OUT OF ORDER: ARROGANCE, CORRUPTION, AND INCOMPETENCE ON THE BENCH 119-120 (1998);
443. MARY ANN GLENDON, A NATION UNDER LAWYERS: HOW THE CRISIS IN THE LEGAL PROFESSION IS TRANSFORMING AMERICAN SOCIETY 150-151 (1994);
444. MARK R. LEVIN, MEN IN BLACK: HOW THE SUPREME COURT IS DESTROYING AMERICA 60-61 (2005);
445. Michael Barone, Why America's House of Lords Seems to Tilt to the Left, CHI. SUN-TMES, July 13, 2005, at 55;
446. David P. Bryden, Is the Rehnquist Court Conservative?, 109 PUB. INT. 73, 83-84 (1992).
447. Sowell, supra note 332.
448. Terry Eastland, The Tempting of Justice Kennedy: Is It the Greenhouse Effect That Has Turned Anthony Kennedy into the Harry Blackmun of Our Time-That Is, a Justice Who "Grew"?, AM. SPECTATOR, Feb. 1993, at 32-37;
449. Justice Anthony Kennedy: Surely Reagan's Biggest Disappointment, HUMAN EVENTS, May 31 & June 7, 1996, at 3.
450. Legal scholar Frederick Schauer has argued that it is not unreasonable to think that the Justices' interest in their reputations might move some of them to the left. Schauer, supra note 70, at 627-630
451. See supra note 156.
452. BAUM, supra note 7, at 143-49. In calling attention to this phenomenon, we are not making the broader point that the "Greenhouse effect" is the sole explanation for shifts in the Justices' positions. The leftward movement on the part of certain Republican appointees is undoubtedly the by-product of several factors. Consider, for example, the Rehnquist Court's 2000 invalidation of mid-1960s legislation that sought to override Miranda v. Arizona, 384 U.S. 436 (1966), signaling the Court's near-unanimous reaffirmation of Miranda. Dickerson v. United States, 530 U.S. 428 (2000). Rather than register its embrace of Miranda, Dickerson's lopsided majority highlighted the interest of some conservative Justices in the Court's prerogative to interpret the Constitution. See id. at 437 ("Congress may not legislatively supersede our decisions interpreting and applying the Constitution."). Most notably, Chief Justice Rehnquist was hardly a fan of Miranda but nevertheless wrote Dickerson in order to highlight the deference he felt lawmakers owed to Court interpretations of the Constitution. See Yale Kamisar, Dickerson v. United States: The Case That Disappointed Miranda's Critics-and Then Its Supporters, in THE REHNQUIST LEGACY 106, 107-112 (Craig Bradley ed., 2006) (noting Rehnquist's opposition to Miranda).
453. BAUM, supra note 7, at 143-49. The control involves adjusting the Justices' voting records for changes over time in voting patterns by the Justices as a whole, on the assumption that overall changes in those patterns reflect changes in the sets of issues that the Court hears. Thus, if most of the Justices who serve during two periods have higher rates of liberal voting in the second period, that difference is attributed to changes in case composition that make it "easier" to cast liberal votes. The statistical control is described in Lawrence Baum, Measuring Policy Change in the U.S. Supreme Court, 82 AM. POL. SCI. REV. 905, 906-908 (1988).
454. These were the fifth through tenth terms and the seventh through tenth terms.
455. See id. at 147-148
456. Id. at 147.
457. Id. at 149.
458. On this measure, see Epstein & Segal, supra note 248, at 72-81. The specifics of the criteria for inclusion are shown in the notes to Table 3. On some low salience issues, certain Republican appointees have refused to sign onto the efforts of other Republican appointees to advance the conservative agenda. For example, Justices Kennedy and O'Connor-after initially backing some restrictions on habeas corpus restrictions-backed away from the efforts of Justice Scalia and other conservatives to pursue a more fundamental transformation of habeas jurisprudence. See William E. Hellerstein, Book Review, 58 BROOKLYN L. REV. 913, 925-926 (1992) (arguing that Justice Kennedy and O'Connor's refusal to sign onto a wholesale revision of habeas jurisprudence "evinced further resentment of their more conservative colleagues").
459. For a detailed assessment of the middle ground position carved out by Justices Kennedy and O'Connor, see James S. Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 COLUM. L. REV. 1997 (1992). In understanding this leftward move of low salience issues, it is possible that the "Greenhouse effect" is in play. It is also possible, however, that Justices O'Connor and Kennedy simply supported a recalibration, not a transformation, of habeas rights. For this very reason, we think it especially instructive to look to the Court's decision making on high-visibility issues. These are the very issues that define both the public's and the elite's understanding of the Court and, as such, are highly instructive in assessing potential outside influences on Court decision making.
460. For example, there were ten cases for Justice Harlan and fourteen for Chief Justice Warren.
461. The percentages in the table were derived from a data set downloaded from the Original Supreme Court Judicial Database hosted by the University of South Carolina. See THE JUDICIAL RESEARCH INITIATIVE, http://www.cas.sc.edu/poli/juri/ sctdata.htm (data set on file with authors). The "ALLCOURT" data set used for the analysis is no longer available on the University of South Carolina website; the Supreme Court Database has subsequendy moved to a website hosted by Washington University, where newer versions of the data set can be downloaded,
462. See THE SUPREME COURT DATABASE, The data set was analyzed with a variable added for whether a case met the Epstein-Segal criteria for inclusion: orally argued cases decided with an opinion that were headlined in a front-page story in the New York Times on the day after the decision. The data set was analyzed with a variable added for whether a case met the Epstein-Segal criteria for inclusion: orally argued cases decided with an opinion that were headlined in a front-page story in the New York Times on the day after the decision
463. See LEE EPSTEIN, JEFFREY A. SEGAL, HAROLD J. SPAETH & THOMAS G. WALKER, THE SUPREME COURT COMPENDIUM: DATA, DECISIONS & DEVELOPMENTS 174 (4th ed. 2007). The cases are listed at id. at 154-174 The statistical output files are on file with the authors.
464. Justices are included if they were appointed in 1953 or later and if they served at least ten terms on the Court. Justice Brennan and Justice Powell were both Democrats appointed by Republican presidents; Justice Powell is categorized as a Republican because his perceived conservatism was a major factor in his appointment. See HENRY J. ABRAHAM, JUSTICES, PRESIDENTS, AND SENATORS: A HISTORY OF THE U.S. SUPREME COURT APPOINTMENTS FROM WASHINGTON TO BUSH II 15, 246-247 (5th ed. 2008). Terms are counted from the beginning of a Justice's tenure, except that Justice White's brief participation in the 1961 term and Justice Kennedy's partial participation in the 1987 term are not counted.
465. See Eastland, supra note 336, at 34 n.3; David M. Wagner, Beyond "Strange New Respect," WKLY STANDARD, Mar. 14, 2005, at 20.
466. See BAUM, supra note 7, at 147.
467. See Jon D. Hanson & Adam Benforado, The Drifters: Why the Supreme Court Makes Justices More Liberal, BOSTON REV. Jan./Feb. 2006, at 23 (2006) (positing that several "situational influences" affect ideological drift in judicial decision making). For additional discussion, see supra note 339.
468. See Carol Mock & Herbert F. Weisberg, Political Innumeracy: Encounters with Coincidence, Improbability, and Chance, 36 AM. J. POL. SCI. 1023 (1992);
469. See also BAUM, supra note 8, at 151. In this instance, observers of the Court may have imposed the Washington residence explanation on the patterns of behavior they identified among the Justices. With Justice Samuel Alito showing no sign of growing moderation during his Supreme Court career so far, he would be a clear exception to the Washington residence pattern that some observers posited; Alito had been away from D.C. for eighteen years when he was appointed. Shortly after his appointment, one scholar suggested that the key variable in determining the path of Republican appointees to the Court was experience in the federal Executive Branch rather than Washington residence, imposing a new explanation that could account for the slightly different pattern in the data that Alito produced. See Michael C. Dorf, Does Federal Executive Branch Experience Explain Why Some Republican Supreme Court Justices "Evolve" and Others Don't?, 1 HARV. L. & POL'Y REV. 457 (2007).
470. One recent study has found evidence that the ideological content of Justices' voting is affected by shifts in the ideological position of their political parties, measured by the content of party platforms. See Yates et al., supra note 96, at 16-18, 21-22.