Judicial backlash or just backlash? evidence from a national experiment

Columbia Law Review

Volumn 112, Issue 4, 2012, Pages 731-799

  Fontana, David ^a   Braman, Donald ^a  

^a GEORGE WASHINGTON UNIVERSITY   (United States)

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EID: 84860992860     PISSN: 00101958     EISSN: None     Source Type: Journal    
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References (257)

1. See Transcript of Proceedings at 3095, Perry v. Schwarzenegger, 704 F. Supp. 2d 921 (N.D. Cal. 2010) (No. C 09-2292-VRW) (inquiring about danger that, "as in other areas where the Supreme Court has ultimately constitutionalized something that touches upon highly-sensitive social issues ... the political forces that otherwise have been frustrated ... [may] plague our politics"). For further discussion of this statement,
2. Linda Greenhouse & Reva B. Siegel, Before (And After) Roe v. Wade: New Questions About Backlash, 120 Yale L.J. 2028-2030 (2011).
3. Alexander M. Bickel, The Least Dangerous Branch: The Supreme Court at the Bar of Politics 16 (1962) ("The root difficulty is that judicial review is a countermajoritarian force in our system.").
4. We have discussed the findings of our research for a more general audience in David Fontana & Donald Braman, Supreme Anxiety, New Republic, Feb. 2, 2012, at 8.
5. Owen M. Fiss, Foreword: The Forms of Justice, 93 Harv. L. Rev. 1 (1979) (arguing Supreme Court has unique role to play in pursuing justice).
6. Mark Tushnet, Taking the Constitution Away from the Courts, at ix-xii (1999) (arguing for limiting constitutional decisions by courts).
7. Barack Obama, The Audacity of Hope: Thoughts on Reclaiming the American Dream 83 (2006).
8. The news stories were fictional, and participants were debriefed after completing the experiment.
9. Barry Friedman, The Birth of an Academic Obsession: The History of the Countermajoritarian Difficulty, Part Five, 112 Yale L.J. 153-159 (2002) [hereinafter Friedman, Birth] ("The academic obsession with the countermajoritarian problem has been with us for a long time.").
10. Most of the time, the question derives from the discussion about Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803) ("It is emphatically the province and duty of the judicial department to say what the law is."). Even for those who do not teach Marbury in constitutional law, though, this question is still at the core of constitutional law.
11. Sanford Levinson, Why I Do Not Teach Marbury (Except to Eastern Europeans) and Why You Shouldn't Either, 38 Wake Forest L. Rev. 553-570 (2003) (arguing constitutional law is about teaching that "the Constitution is, at the very least ... what a variety of institutional actors say it is").
12. For notable recent examples of these arguments see generally Jeremy Waldron, The Core of the Case Against Judicial Review, 115 Yale L.J. 1346 (2006),
13. and the response by Richard H. Fallon, Jr., The Core of an Uneasy Case for Judicial Review, 121 Harv. L. Rev. 1693 (2008).
14. William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review 54-71 (2000) (describing history of Marbury).
15. Michael Stokes Paulsen, How to Interpret the Constitution (and How Not to), 115 Yale L.J. 2037 (2006) (reviewing Akhil Reed Amar, America's Constitution: A Biography (2005)).
16. David Strauss, The Living Constitution 36-49 (2010) (describing and advocating courts' common law approach to constitutional change).
17. See generally Donald L. Horowitz, The Courts and Social Policy 22-25 (1977) ("[I]f courts cannot do certain things well, other institutions may perform the same tasks even less capably.");
18. Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring About Social Change? 1-26 (2008) ("Uniquely situated, courts have the capacity to act where other institutions are politically unwilling or structurally unable to proceed.").
19. See generally Stuart A. Scheingold, The Politics of Rights 13-21 (2004).
20. Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 Harv. C.R.-C.L. L. Rev. 373-392 (2007). For other discussions briefly noting these differences between competencies and results
21. see id. at 410-11 ("Americans who entered politics to oppose Roe were concerned primarily about the substantive law of abortion, not about questions of judicial technique or even about the proper role of courts in a democracy.");
22. Jane S. Schacter, Courts and the Politics of Backlash: Marriage Equality Litigation, Then and Now, 82 S. Cal. L. Rev. 1153-1216 (2009) (referencing "more general category of backlash against any public or political decision");
23. id. at 1218 ("Consider this counterfactual: suppose that the Hawaii or Massachusetts legislature-and not a court-had taken the first step on same-sex marriage. It seems highly likely that cultural conservatives would have seized on the issue with equal gusto.").
24. See generally Friedman, Birth, supra note 8 (discussing difficulties scholars had with liberal Court they supported and series of theories skeptical of aggressive judicial role).
25. See J. Skelly Wright, Professor Bickel, The Scholarly Tradition, and the Supreme Court, 84 Harv. L. Rev. 769, 770-72 (1971) (examining scholarly tradition related to Warren Court).
26. Jamal Greene, Giving the Constitution to the Courts, 117 Yale L.J. 886, 911 (2007) (reviewing Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007)) ("[M]embers of the public, more than institutional political actors, have laid the foundations for judicial supremacy.");
27. Norman R. Williams, The People's Constitution, 57 Stan. L. Rev. 257, 257 (2004) (reviewing Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004)) ("[W]e have accepted that, once the federal courts have spoken, the judiciary's word on the matter is final-that we the People are obligated to accede to the judiciary's interpretation of the Constitution, no matter how erroneous we think that interpretation may be.").
28. See generally John Hart Ely, Democracy and Distrust: A Theory of Judicial Review (1980) (arguing judicial review should focus on failures of democratic process).
29. Ronald Dworkin, Law's Empire 238-40 (1986) (advocating model of "Hercules" judge who respects integrity of law while balancing demands of precedent and needs of future).
30. See generally 1 Bruce Ackerman, We the People: Foundations (1991);
31. 2 Bruce Ackerman, We the People: Transformations (1998).
32. Steven G. Calabresi, The Congressional Roots of Judicial Activism, 20 J.L. & Pol. 577, 577 (2004) ("Far from being counter-majoritarian, therefore, judicial activism is in fact the device Congress relies on to make social policy for the nation, which Congress either approves of or is at least unwilling to stop.").
33. John R. Hibbing & Elizabeth Theiss-Morse, Stealth Democracy: Americans' Beliefs About How Government Should Work 6, 15, 42 (2002).
34. See generally James L. Gibson & Gregory A. Caldeira, Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People (2009) [hereinafter Gibson & Caldeira, Citizens].
35. James L. Gibson, Institutional Legitimacy, Procedural Justice, and Compliance with Supreme Court Decisions: A Question of Causality, 25 Law & Soc'y Rev. 631, 631 (1991) (discussing argument that "those who viewed the Supreme Court as a more legitimate institution were more likely to accede to an unpopular decision");
36. Tom R. Tyler & Kenneth Rasinski, Procedural Justice, Institutional Legitimacy, and the Acceptance of Unpopular U.S. Supreme Court Decisions: A Reply to Gibson, 25 Law & Soc'y Rev. 621, 621 (1991) ("A central tenet about U.S. legal culture is that Americans are more willing to accept unpopular decisions if those decisions are legitimized by the courts, in particular the U.S. Supreme Court.").
37. Post & Siegel, supra note 16, at 407.
38. Michael J. Klarman, Brown and Lawrence (and Goodridge), 104 Mich. L. Rev. 431, 473 (2005) (stating Court can "raise the salience of an issue" in way harmful to both cause and to Court). Others have noted this phenomenon but argued that it leads to a pro-Court institutional sentiment.
39. Gibson & Caldeira, Citizens, supra note 25, at 3 ("[A]nything that causes people to pay attention to courts-even controversies-winds up reinforcing institutional legitimacy through exposure to the legitimizing symbols associated with law and courts.").
40. Robert Post and Reva Siegel have recognized that Klarman uses this competencies approach, rather than the cultural-political result approach. Post & Siegel, supra note 16, at 392 n.91 (noting Klarman "impl[ies] that judicial decisions are inherently more likely to create backlash than legislative decisions").
41. They have criticized this position as having "conceptual difficulties." Id. We do not read the competencies approach as having conceptual difficulties, but rather as a conceptually coherent argument capable of being empirically falsified.
42. Klarman, supra note 28, at 473.
43. Katharine Q. Seelye, Conservatives Mobilize Against Ruling on Gay Marriage, N.Y. Times, Nov. 20, 2003, at A29 (quoting former D.C. Circuit Judge Kenneth Starr as stating that courts should not interfere with "'the power of the people through their elected representatives to fashion social policy'").
44. William N. Eskridge, Jr., Pluralism and Distrust: How Courts Can Support Democracy by Lowering the Stakes of Politics, 114 Yale L.J. 1279, 1312 (2005). Eskridge makes similar arguments to Klarman. Id. at 1310 (noting courts "can raise the stakes of politics by taking issues away from the political system prematurely; by frustrating a group's ability to organize, bond, and express the values of its members; or by demonizing an outgroup").
45. Neil S. Siegel, Interring the Rhetoric of Judicial Activism, 59 DePaul L. Rev. 555, 558 (2010) ("Nixon reached out to southern delegates by stressing the limited role that he thought the federal courts should play in desegregating public schools.").
46. Klarman, supra note 28, at 473.
47. Id. at 475 (noting one "reason that rulings ... produce political backlashes is that judicially mandated social reform may mobilize greater resistance" because "critics were able to deride it as the handiwork of arrogant 'activist judges' defying the will of the people").
48. Justice Scalia is perhaps the foremost advocate of this position: The virtue of a democratic system ... is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. United States v. Virginia, 518 U.S. 515, 567 (1996) (Scalia, J., dissenting).
49. See Fiss, supra note 4, at 2 (noting importance of Court's role in "[s]tructural reform" which "involves an encounter between the judiciary and the state bureaucracies").
50. See 151 Cong. Rec. 21,279 (2005) (statement of Sen. Jeff Sessions) (admonishing judges to "leave politics to the politicians").
51. Susan Rose-Ackerman, The Economic Analysis of Public Law, 1 Eur. J.L. & Econ. 53, 66 (1994) (describing fears that "Congress has been captured by special-interest groups and passes laws supporting these groups that harm the general public").
52. Klarman, supra note 28, at 482.
53. Id. at 477.
54. David Brooks, Op-Ed., Roe's Birth, and Death, N.Y. Times, Apr. 21, 2005, at A23 ("When Blackmun wrote the Roe decision, it took the abortion issue out of the legislatures and put it into the courts. If it had remained in the legislatures, we would have seen a series of state-by-state compromises reflecting the views of the centrist majority that's always existed on this issue.").
55. Klarman, supra note 28, at 477-82 (providing examples of how implementation tructures for court decisions differ from those for congressional decisions).
56. Greenhouse & Siegel, supra note 1, at 2034 ("Attuned to these alternative institutional bases for conflict over abortion, we can pick out features of the post-Roe landscape that raise deep questions about the sufficiency of Court-centered accounts of backlash ....").
57. What role did Roe v. Wade, 410 U.S. 113 (1973), play in securing the public's perception that women have a right to an abortion? Or in hardening and mobilizing opposition? Would a world in which the Supreme Court left the regulation of abortion to the states be one with greater or less support for reproductive rights?
58. Did Plessy v. Ferguson, 163 U.S. 537 (1898),
59. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), entrench or transform the public's conception of the legitimacy of racial equality? Were the many legislative efforts that preceded and followed it more influential?
60. Has Lawrence v. Texas, 539 U.S. 558 (2003), and its progeny increased the public's respect for gay rights or provoked them into passing a spree of state constitutional amendments barring courts and legislatures from allowing same-sex marriage?
61. Would a decision in District of Columbia v. Heller, 554 U.S. 570 (2008), that rejected an individual right to bear arms have reduced or incited greater public support for gun control?
62. Richard H. Fallon, Jr., Legitimacy and the Constitution, 118 Harv. L. Rev. 1787, 1790-91 (2005).
63. The literature is far too vast to be summarized, but for a helpful overview see generally Tom R. Tyler, Psychological Perspectives on Legitimacy and Legitimation, 57 Ann. Rev. Psychol. 375 (2006).
64. For some helpful examples, see Mark D. Ramirez, Procedural Perceptions and Support for the U.S. Supreme Court, 29 Pol. Psychol. 675, 683-84 (2008) (asking subjects their sentiments about how Court is "handling their job").
65. For instance, some studies ask whether the Court has the "legal authority" or "the final word" in deciding certain issues. See Jeffrey J. Mondak, Policy Legitimacy and the Supreme Court: The Sources and Contexts of Legitimation, 47 Pol. Res. Q. 675, 680 (1994).
66. The four propositions used to assess the Court's legitimacy are (1) "If the U.S. Supreme Court started making a lot of decisions that most people disagree with, it might be better to do away with the Supreme Court altogether";(2) "The right of the Supreme Court to decide certain types of controversial issues should be reduced"; (3) "The Supreme Court can usually be trusted to make decisions that are right for the country as a whole"; and (4) "The U.S. Supreme Court gets too mixed up in politics." Gibson & Caldeira, Citizens, supra note 25, at 46 tbl.3.1.
67. Tyler & Rasinski, supra note 26, at 625.
68. Hibbing & Theiss-Morse, supra note 24, at 69.
69. James Gibson, Public Reverence for the United States Supreme Court: Is the Court Invincible? 9 (July 29, 2011) (unpublished manuscript) (on file with the Columbia Law Review) ("In general, the American people are reasonably satisfied with how hierarchicalwell the Court does its job ....");
70. see also id. at 4 ("Democrats and Republicans love the Supreme Court at roughly equal levels, as do liberals and conservatives. Partisan and ideological differences do indeed characterize policy positions on many issues, but faith in and loyalty to the Supreme Court seems to be distributed across the ideological and partisan boards." (emphasis omitted)).
71. Earlier research has demonstrated that cultural variables are stronger predictors of behavior than other attitudinal priors: [A] simple partisan inversion of impressions is necessarily less nuanced than the cross-cutting shifts observed when members of the sample were classified simultaneously along the two cultural dimensions.... We are eager to add, however, that we regard the question "what has the biggest impact-culture, gender, political ideology, race, etc.?"-as ill-posed. Cultural worldviews tend to cohere with other characteristics-including political affiliation, gender, race, and class-in patterns that indicate the same latent predispositions the cultural worldviews by themselves measure.... When forced to choose-as one often is, by sample size-cultural worldviews can be expected to be more discerning indicators of these predispositions, and hence stronger predictors of cultural variance in cognition, than these other characteristics.
72. Dan M. Kahan et al., "They Saw A Protest": Cognitive Illiberalism and the Speech-Conduct Distinction, 64 Stan. L. Rev. (forthcoming 2012) [hereinafter Kahan et al., They Saw a Protest] (manuscript at 30 n.93) (citation omitted) (on file with the Columbia Law Review).
73. The hierarchical-individualist worldview tends to be associated with the Republican Party and with those self-identifying as "conservative"; the egalitariancommunitarian worldview with the Democratic Party and with those self-identifying as "liberal."
74. Dan M. Kahan, Culture, Cognition, and Consent: Who Perceives What, and Why, in Acquaintance-Rape Cases, 158 U. Pa. L. Rev. 729, 784-85 &fig.7 (2010) [hereinafter Kahan, Culture, Cognition, and Consent] (finding correlation among these categories). Prior research, however, indicates that value measures of cultural orientation are far more predictive of factual perceptions and policy preferences than are political affiliation and ideological self-identification.
75. John Gastil et al., The 'Wildavsky Heuristic': The Cultural Orientation of Mass Political Opinion 15 (Yale Law Sch. Pub. Law & Legal Theory Research Paper Series, Research Paper No. 107, 2005) [hereinafter Gastil et al., Wildavsky Heuristic], available at http://ssrn.com/sol3/abstract=834264 (on file with the Columbia Law Review) ("[C]ultural orientation would explain more variance in policy attitudes than does liberal-conservative self-identification or partisanship ....").
76. See generally Dan M. Kahan, Hank Jenkins-Smith & Donald Braman, Cultural Cognition of Scientific Consensus, 14 J. Risk Res. 147 (2011) (finding cultural cognition informs individuals' views on climate change research).
77. See generally Dan M. Kahan & Donald Braman, More Statistics, Less Persuasion: A Cultural Theory of Gun-Risk Perceptions, 151 U. Pa. L. Rev. 1291 (2003) [hereinafter Kahan & Braman, Gun-Risk Perceptions] (presenting evidence that cultural orientations affect positions on gun control).
78. See generally Kahan, Culture, Cognition, and Consent, supra note 53 (using cultural cognition to examine debate over acquaintance-rape cases).
79. See generally Dan M. Kahan, Donald Braman, Geoffrey L. Cohen, John Gastil & Paul Slovic, Who Fears the HPV Vaccine, Who Doesn't, and Why? An Experimental Study of the Mechanisms of Cultural Cognition, 34 Law & Hum. Behav. 501 (2010) (using cultural cognition theory to explain attitudes towards HPV vaccine).
80. See generally Dan M. Kahan, Donald Braman, Paul Slovic, John Gastil & Geoffrey Cohen, The Second National Risk and Culture Study: Making Sense of-and Progress in-the American Culture War of Fact (GWU Legal Studies, Research Paper No. 370, 2007), available at http://ssrn.com/abstract=1017189 (on file with the Columbia Law Review) (addressing nanotechnology, terrorism, national security, and mass political opinion).
81. Gastil et al., Wildavsky Heuristic, supra note 53, at 13-16 (proposing and describing cultural measures).
82. On the issue of gun control, see Kahan & Braman, Gun-Risk Perceptions, supra note 55, at 1307 ("[I]ndividuals who were relatively hierarchical in their outlooks were nearly twice as likely to oppose gun control as those who were relatively egalitarian, and individuals who were relatively individualistic were over four times as likely to oppose gun control as individuals who were relatively solidaristic."). On the issue of gay rights,
83. Dan M. Kahan, The Cognitively Illiberal State, 60 Stan. L. Rev. 115, 131-33 (2007) (describing debate in terms of cultural outlooks);
84. The Cultural Cognition Project at Yale Law Sch., The Cultural Cognition of Gay and Lesbian Parenting: Summary of First Round Data Collection 4-16, available at http://www.culturalcognition.net/storage/Stage%201%20Report.pdf (on file with the Columbia Law Review) (last visited Jan. 28, 2012) (presenting findings).
85. Gastil et al., Wildavsky Heuristic, supra note 53, at 23 (showing stronger relationships between cultural orientations and most policy preferences as political knowledge increases);
86. Dan M. Kahan et al., The Tragedy of the Risk-Perception Commons: Culture Conflict, Rationality Conflict, and Climate Change 8 (Cultural Cognition Project, Working Paper No. 89, 2011), available at http://ssrn.com/abstract=1871503 (on file with the Columbia Law Review) (finding increased numeracy is associated with increased cultural polarization on climate change beliefs, not greater agreement).
87. See generally Jonathan J. Koehler, The Influence of Prior Beliefs on Scientific Judgments of Evidence Quality, 56 Organizational Behav. & Hum. Decision Processes 28, 47 (1993) ("Research reports that confirmed scientists' prior beliefs were judged to be of higher quality than those that did not.");
88. Robert J. MacCoun, Biases in the Interpretation and Use of Research Results, 49 Ann. Rev. Psychol. 259, 262 (1998) (describing theoretical approach to bias in research interpretation).
89. For a significant example of these arguments, see Klarman, supra note 28, at 473-82 (explaining political backlash to controversial judicial decisions).
90. Polimetrix (now YouGov) is a public opinion research firm that conducts online surveys and experiments on behalf of academic and governmental researchers and commercial customers (including political campaigns).
91. See generally Scientific Research: Survey Research with Social Impact, YouGov, http://corp.yougov.com/scientific-research/ (on file with the Columbia Law Review) (last visited Feb. 22, 2012).
92. YouGov maintains a panel of over one million Americans that it uses to construct representative study samples. For more information on the "sample matching" approach, see generally Douglas Rivers, Sampling for Web Surveys (2007), available at http://s3.amazonaws.com/yg-public/Scientific/Sample+Matching_JSM.pdf (on file with the Columbia Law Review).
93. Gastil et al., Wildavsky Heuristic, supra note 53, at 17 (describing use of survey to determine cultural orientation).
94. Cronbach's alpha (a) is a statistic for measuring the internal validity of attitudinal scales. By computing the degree of intercorrelation among various items within a scale, it can be used to assess whether the items can properly be treated as common indicators of a latent attitude or trait-i.e., one that cannot be directly observed and measured.
95. See generally Jose M. Cortina, What Is Coefficient Alpha? An Examination of Theory and Applications, 78 J. Applied Psychol. 98, 103-04 (1993) (analyzing coefficient's meaning and usefulness). Composite scales like those used in this study are desirable because they not only facilitate measurement of unobservable dispositions, but also enable measurements that are necessarily more precise than those based on any of the individual indicators alone, each of which can be seen as an imperfect or "noisy" approximation of the phenomenon being studied.
96. See generally J. Philippe Rushton, Charles J. Brainerd & Michael Pressley, Behavioral Development and Construct Validity: The Principle of Aggregation, 94 Psychol. Bull. 18 (1983) (presenting usefulness of aggregation). Generally, α=.70 suggests scale validity-i.e., that the aggregated measures furnish a reliable measure of the latent trait or attitude. Cortina, supra, at 101 (arguing σ = .70 is commonly used, but occasionally incorrect).
97. See infra Appendix A.
98. See infra Appendix A.
99. Example statements included: "With politically controversial issues like this, the legislature will better understand the subtleties of how rights apply in a given setting," and "When courts decide important issues like these, there is more legitimacy to the decision because judges are not beholden to political wheeling and dealing in the way that legislators are." For a complete list, see infra Appendix B.
100. Although below 0.70, 0.66 represents respectable intercorrelation for a two-item scale. Cf. supra note 65 (claiming scale validity at a = 0.70). On the relationship between the number of items in a scale and Cronbach's alpha,
101. Neal Schmitt, Uses and Abuses of Coefficient Alpha, 8 Psychol. Assessment 350, 351-52 (1996).
102. For example, "The Constitution prohibits the government from treating gay marriage differently than heterosexual marriage," and "The government is prohibited from regulating or banning concealed weapons by the Constitution." For a complete list, see infra Appendix B.
103. For example, "Allowing gays and lesbians to marry will undermine traditional marriage and undermine American families," and "Prohibiting the use of concealed weapons makes it hard for ordinary citizens to defend themselves." For a complete list, see infra Appendix B.
104. The questions were: "If the elections for Congress were being held today, which party's candidate would you be likely to vote for in your congressional district?" and "How likely are you to vote in the upcoming federal congressional elections in November?"
105. The questions were: "How important is the issue of gun rights or gun control to you personally?" and "How closely do you follow the debate over gun rights and gun control?"
106. For example, "How much of a majority is required for the U.S. Senate and House to override a presidential veto? A bare majority (50% plus one), a two-thirds majority, or a three-fourths majority?" For a complete list, see infra Appendix B.
107. See generally Michael X. Delli Carpini & Scott Keeter, Measuring Political Knowledge: Putting First Things First, 37 Am. J. Pol. Sci. 1179 (1993) (developing and testing measures of political knowledge). We removed one of the traditional ten measures ("Whose responsibility is it to determine if a law is constitutional or not? [The President, the Congress, or the Supreme Court]") because, as professors of constitutional law everywhere like to tell their students, there is arguably more than one correct answer, and that is what our study is analyzing in the first place.
108. See generally Andrew Gelman & Jennifer Hill, Data Analysis Using Regression and Multilevel/Hierarchical Models 137-166 (2007) (describing process and usefulness of statistical simulation);
109. Gary King, Michael Tomz & Jason Wittenberg, Making the Most of Statistical Analyses: Improving Interpretation and Presentation, 44 Am. J. Pol. Sci. 347 (2000) (same). Statistical simulations add substantial value to nonlinear multivariate regression. One of the benefits is clarity. The practical upshot of the conventional elements of a regression output-including regression coefficients (whether or not standardized), one or another measure of error (such as standard deviations or t-statistics), and notations of the presence of specified levels of statistical significance-defy straightforward interpretation, even by those who know what they signify. Through the use of simulations, in contrast, a researcher can derive practically meaningful estimates of how particular explanatory variables (e.g., our cultural worldview measures) influence a quantity of interest (say, the likelihood that a person will take one position or another on a contested issue of fact at trial). Such estimates, moreover, often admit of graphic presentation that conveys relevant information much more readily than do regression output tables.
110. Lee Epstein, Andrew D. Martin & Matthew M. Schneider, On the Effective Communication of the Results of Empirical Studies, Part I, 59 Vand. L. Rev. 1811, 1817 (2006) (noting graphical displays are more effective than tables);
111. Lee Epstein, Andrew D. Martin & Christina L. Boyd, On the Effective Communication of the Results of Empirical Studies, Part II, 60 Vand. L. Rev. 799, 831 (2007) (objecting to use of tables to display information);
112. Andrew Gelman, Cristian Pasarica & Rahul Dodhia, Let's Practice What We Preach: Turning Tables into Graphs, 56 Am. Stat. 121, 121 (2002) (arguing graphs are superior for making comparisons and predictions).
113. See infra Appendix B for some of the questions we used.
114. Two condition groups were provided narratives only involving Congress, and two groups were provided narratives only involving the Court. See infra Appendix B.
115. See infra Appendix A (describing hypothetical constitutional arguments brought by pro-gay groups to Supreme Court).
116. See Klarman, supra note 28, at 450 (noting equal protection arguments made in gay marriage cases).
117. See U.S. Const. amend. XIV, § 1 ("No State shall ... deny to any person within its jurisdiction the equal protection of the laws.");
118. id. § 5 ("The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.").
119. See infra Appendix A.
120. See U.S. Const. amend. II ("A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.").
121. Brandon P. Denning, Five Takes on McDonald v. City of Chicago, 26 J.L. & Pol. 273, 294-301 (2011) (describing current gun rights litigation since Heller).
122. McDonald v. City of Chicago, 130 S. Ct. 3020, 3050 (2010) ("We therefore hold that the Due Process Clause of the Fourteenth Amendment incorporates the Second Amendment right recognized in Heller.").
123. Frederick Schauer, The Supreme Court, 2005 Term-Foreword: The Court's Agenda-and the Nation's, 120 Harv. L. Rev. 4, 11 (2006).
124. Jason Barabas & Jennifer Jerit, Are Survey Experiments Externally Valid?, 104 Am. Pol. Sci. Rev. 226, 227 (2010) (noting "unrealistically powerful manipulation" may yield results that do not "generalize beyond the particular study at hand").
125. Patrick J. Egan & Jack Citrin, The Limits of Judicial Persuasion and the Fragility of Judicial Legitimacy 5 (July 2011) (unpublished manuscript) (on file with the Columbia Law Review) ("One limitation of the experimental approach is that the treatment is a one-time injection of information, whereas in reality a Supreme Court ruling is just the opening salvo of a debate among the nation's elites that can quickly overwhelm ... a case.").
126. Gibson & Caldeira, Citizens, supra note 25, at 5 ("[T]he views of African Americans towards the United States Supreme Court evolved over time from strong support to considerable suspicion.").
127. There is an extensive literature on this topic following the seminal work of Philip Converse. See generally Philip Converse, The Nature of Belief Systems in Mass Publics, in Ideology and Discontent 206 (David E. Apter ed., 1964). For further discussion on the relationship between value measures and ideology, see generally Gastil et al., Wildavsky Heuristic, supra note 53.
128. This, of course, does not mean there was no effect, just that it was undetectable in our sample. The null hypothesis cannot be proven.
129. For the most helpful summary of various of these features, see generally James Spriggs, John T. Scott & James R. Zink, Courting the Public: The Influence of Decision Attributes on Individuals' Views of Court Opinions, 71 J. Pol. 909 (2009).
130. For a discussion of these themes, see generally Cass R. Sunstein, If People Would Be Outraged by Their Decisions, Should Judges Care?, 60 Stan. L. Rev. 155 (2007) (arguing judges should be cognizant of public opinion, if not necessarily controlled by it).
131. For a response to Sunstein, see generally Andrew B. Coan, Well, Should They? A Response to If People Would Be Outraged by Their Rulings, Should Judges Care?, 60 Stan. L. Rev. 213 (2007) (elaborating on Sunstein's basic framework of judicial cognizance).
132. Sunstein, supra note 93, at 171.
133. The Federalist No. 51, at 321-22 (James Madison) (Clinton Rossiter ed., 1961).
134. See U.S. Const. art. III, § 2, cl. 2 ("In all Cases affecting Ambassadors, other public Ministers and Consuls, and those in which a State shall be Party, the supreme Court shall have original Jurisdiction.").
135. See id. ("In all the other Cases before mentioned, the supreme Court shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions, and under such Regulations as the Congress shall make."). For a helpful summary of these changes and the controversies surrounding them,
136. Edward A. Hartnett, Questioning Certiorari: Some Reflections Seventy-Five Years After the Judges' Bill, 100 Colum. L. Rev. 1643, 1657-60 (2000).
137. Dan M. Kahan, The Supreme Court, 2010 Term-Foreword: Neutral Principles, Motivated Cognition, and Some Problems for Constitutional Law, 125 Harv. L. Rev. 1, 51 (2011) [hereinafter Kahan, Neutral Principles] ("Relieving citizens of the anxiety that the Court is resolving cases in a partisan manner is the asserted justification for 'constitutional theories.'").
138. See generally Herbert Wechsler, Toward Neutral Principles of Constitutional Law, 73 Harv. L. Rev. 1 (1959) (arguing for transcendent reasoning and analysis in Supreme Court opinions).
139. Douglas NeJaime, Winning Through Losing, 96 Iowa L. Rev. 941, 951 (2011) ("[F]ocusing on courts (and litigation) ... demobilizes a potentially vibrant movement.").
140. Klarman, supra note 28, at 473 (stating that court rulings produce backlash by "rais[ing] the salience of an issue" to opponents).
141. Herbert Weschler, The Political Safeguards of Federalism: The Role of the States in the Composition and Selection of the National Government, 54 Colum. L. Rev. 543, 558 (1954) ("[T]he national political process in the United States ... is intrinsically well adapted to retarding or restraining new intrusions ... on the domain of the states.").
142. Klarman, supra note 28, at 453-58 (describing backlash after Brown).
143. See id. at 459-73 (describing backlash after Goodridge).
144. Cass R. Sunstein, Deliberative Trouble: Why Groups Go to Extremes, 110 Yale L.J. 71, 97 (2000) ("[P]olarization entrepreneurs' ... creat[e] ... spheres in which like-minded people can hear a particular point of view from one or more articulate people, and also participate ... in a deliberative discussion in which that point of view becomes entrenched and strengthened." (footnote omitted)).
145. Lawrence Baum & Neal Devins, Why the Supreme Court Cares About Elites, Not the American People, 98 Geo. L.J. 1515, 1516 (2010) (arguing "Supreme Court Justices care more about the views of academics, journalists, and other elites than they do about public opinion").
146. Learned Hand, The Bill of Rights 54 (1958) (asserting that in "The Segregation Cases" the Court "mean[t] to reverse the 'legislative judgment' by its own appraisal").
147. Friedman, Birth, supra note 8, at 155 (suggesting "numerous .... Supreme Court decisions striking down progressive constitutional legislation ... [have] led to a spate of articles decrying the inconsistency of democracy with judicial review, and calling for constitutional interpretation outside the courts").
148. See Schauer, supra note 86, at 9 ("For in reality neither constitutional decisionmaking nor Supreme Court adjudication occupies a substantial portion of the nation's policy agenda or the public's interest ....").
149. Barry Friedman & Dahlia Lithwick, Speeding Locomotive: Did the Roberts Court Misjudge the Public Mood on Campaign Finance Reform?, Slate.com (Jan. 25, 2010, 2:09 PM), http://www.slate.com/articles/news_and_politics/jurisprudence/2010/01/speeding_locomotive.html (on file with the Columbia Law Review) (discussing public response to Citizens United).
150. Jack M. Balkin & Sanford Levinson, The Processes of Constitutional Change: From Partisan Entrenchment to the National Surveillance State, 75 Fordham L. Rev. 489, 501 (2006) ("[T]he Supreme Court tends, in the long run, to cooperate with the vector sum of forces in national politics.").
151. Baker v. Carr, 369 U.S. 186, 267 (1962) (Frankfurter, J., dissenting).
152. Terry A. Maroney, The Persistent Cultural Script of Judicial Dispassion, 99 Calif. L. Rev. 629, 633 (2011) ("[J]udicial dispassion has come to be regarded as a core requirement of the rule of law, a key to moving beyond the perceived irrationality and partiality of our collective past.").
153. Thomas B. Colby, In Defense of Judicial Empathy 1-2 (2011) (unpublished manuscript) (on file with the Columbia Law Review) (arguing judges should use empathy, or "cognitive ability to understand a situation from the perspective of other people, combined with the emotional capacity to comprehend and feel those people's emotions in that situation").
154. See supra notes 25-26 and accompanying text (discussing empirical literature on perceptions of Court's legitimacy).
155. 531 U.S. 98 (2000) (per curiam).
156. Linda Greenhouse, Learning to Live with Bush v. Gore, 4 Green Bag 381, 382 (2001) ("[T]he Court's intervention was an act of judicial statesmanship that saved the country from judicial and political chaos.").
157. Robert S. Baron et. al., Social Corroboration and Opinion Extremity, 32 J. Experimental Soc. Psychol. 537, 538 (1996) ("[I]ndividuals may avoid taking extreme positions unless they have a good deal of certainty regarding the issue.").
158. Kevin R. Binning, David K. Sherman, Geoffrey L. Cohen & Kirsten Heitland, Seeing the Other Side: Reducing Political Partisanship via Self-Affirmation in the 2008 Presidential Election, 10 Analyses Soc. Issues & Pub. Pol'y 276, 276 (2010) (finding that "providing individuals a chance to affirm their self-integrity" relieved "pressure to adhere to their [political party's] core beliefs and behaviors");
159. Geoffrey L. Cohen, Joshua Aronson & Claude M. Steele, When Beliefs Yield to Evidence: Reducing Biased Evaluation by Affirming the Self, 26 Personality & Soc. Psychol. Bull. 1151, 1151 (2000) (finding evidence consistent with theory that "defensive reactions [in the face of disconfirming evidence] would be ameliorated by an affirmation of an alternative source of self-worth").
160. David K. Sherman & Geoffrey L. Cohen, Accepting Threatening Information: Self-Affirmation and the Reduction of Defensive Biases, 11 Current Directions Psychol. Sci. 119, 119 (2002) ("[P]eople respond to information in a less defensive and more open-minded manner when their self-worth is buttressed by an affirmation of an alternative source of identity.").
161. Kahan et al., They Saw a Protest, supra note 52 (manuscript at 41).
162. Dan M. Kahan & Donald Braman, Cultural Cognition and Public Policy, 24 Yale L. & Pol'y Rev. 149, 168 (2006) ("Policymakers can harness this identityaffirmation effect by designing policies that are sufficiently rich in their social meanings to affirm the values of persons of diverse cultural worldviews simultaneously.").
163. Randy E. Barnett, An Originalism for Nonoriginalists, 45 Loy. L. Rev. 611, 617 (1999).
164. See generally Jack M. Balkin, Living Originalism (2012) (arguing that liberal originalism appeals to broad and previously unreachable constituencies).
165. Noah Feldman, Imagining a Liberal Court, N.Y. Times Magazine, June 27, 2010, at 39, 41-42 (arguing that limitations on capitalism are more acceptable).
166. Kenji Yoshino, The New Equal Protection, 124 Harv. L. Rev. 747, 792-97 (2011) (arguing that liberty and dignity-based decisions are more acceptable than equalitybased decisions).
167. Edward R. Hirt & Keith D. Markman, Multiple Explanation: A Consider-an- Alternative Strategy for Debiasing Judgments, 69 J. Personality & Soc. Psychol. 1069, 1070 (1995) (describing methodology behind debiasing).
168. 539 U.S. 558, 602-05 (2003) (Scalia, J., dissenting).
169. 550 U.S. 124, 172 (2007) (Ginsburg, J., dissenting).
170. Lee Epstein & Jeffrey A. Segal, Advice and Consent: The Politics of Judicial Appointments 110-11 (2005) (noting ideological congruity between senators belonging to nominating President's party and their Court nominees).
171. Geoffrey R. Stone, Understanding Supreme Court Confirmations, 2010 Sup. Ct. Rev. 381, 450 ("[T]he politicization of the confirmation process has been made even more dramatic by the increasingly aggressive involvement of interest groups.").
172. 539 U.S. at 564 ("We conclude the case should be resolved by determining whether the petitioners were free as adults to engage in the private conduct in the exercise of their liberty under the Due Process Clause of the Fourteenth Amendment to the Constitution.");
173. Yoshino, supra note 126, at 793 (citing this as example of strategy that "stresses the interests we have in common as human beings rather than the demographic differences that drive us apart").
174. Lawrence, 539 U.S. at 578 ("The present case does not involve ... whether the government must give formal recognition to any relationship that homosexual persons seek to enter.").
175. Yoshino, supra note 126, at 778.
176. Klarman, supra note 28, at 459.
177. Egan and Citrin, supra note 88, at 5.
178. See infra Appendix B.
179. See infra Appendix B.
180. Dan Kahan, Fixing the Communications Failure, 463 Nature 296, 297 (2010) [hereinafter Kahan, Communications Failure] ("If we want democratic policy-making to be backed by the best available science, we need a theory of risk communication that takes full account of the effects of culture on our decision-making.").
181. James L. Gibson, Gregory A. Caldeira & Lester Kenyatta Spence, Measuring Attitudes Towards the United States Supreme Court, 47 Am. J. Pol. Sci. 354, 355 (2003) [hereinafter Gibson et al., Measuring Attitudes] (describing survey results in which 30% of those surveyed indicated "great deal" of confidence and 50% of those surveyed indicated "only some" confidence in individuals running Supreme Court).
182. Eskridge, supra note 30, at 1294 (stating role of Court is to keep "the stakes of politics ... reasonably low").
183. Hirt and Markman, supra note 127, at 1069 ("Previous research has suggested that an effective strategy for debiasing judgments is to have participants 'consider the opposite.'").
184. Scott O. Lilienfeld, Rachel Ammirati & Kristin Landfield, Giving Debiasing Away: Can Psychological Research on Correcting Cognitive Errors Promote Human Welfare?, 4 Persp. on Psychol. Sci. 390, 393 (2009) (summarizing research on debiasing and its efficacy).
185. Lee Ross and Andrew Ward, Näi{dotless}ve Realism in Everyday Life: Implications for Social Conflict and Misunderstanding, in Values and Knowledge 103, 110-11 (Edward S. Reed, Elliot Turiel & Terrance Brown eds., 1996).
186. Vincent Yzerbyt, Olivier Corneille & Claudia Estrada, The Interplay of Subjective Essentialism and Entitativity in the Formation of Stereotypes, 5 Personality & Soc. Psychol. Rev. 141, 141 (2001).
187. Vincent Yzerbyt, Anouk Rogier & Susan T. Fiske, Group Entitativity and Social Attribution: On Translating Situational Constraints into Stereotypes, 24 Personality & Soc. Psychol. Bull. 1089, 1091 (1998).
188. See id. at 1099 (citing studies illuminating common heuristic of interpreting ingroup members as reasonable and out-group as less reasonable).
189. John M. Scheb II & William Lyons, The Myth of Legality and Public Evaluation of the Supreme Court, 81 Soc. Sci. Q. 928, 937-38 (2000) [hereinafter Scheb & Lyons, Myth of Legality] (describing "widespread recognition of the effect of the justices' ideologies on their decisions").
190. Neil S. Siegel, Umpires at Bat: On Integration and Legitimation, 24 Const. Comment. 701, 701 (2007).
191. Antonin Scalia, The Rule of Law as a Law of Rules, 56 U. Chi. L. Rev. 1175, 1187 (1989) [hereinafter Scalia, Rule of Law].
192. Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 39 (1997).
193. Naftali Bendavid, Supreme Strategy: Stick to the Script, Wall St. J. (July 15, 2009), http://online.wsj.com/article/SB124762632993643211.html (on file with the Columbia Law Review).
194. William J. Brennan, Jr., The Constitution of the United States: Contemporary Ratification, 27 S. Tex. L. Rev. 433, 435 (1986).
195. John M. Scheb II & William Lyons, Judicial Behavior and Public Opinion: Popular Expectations Regarding the Factors that Influence Supreme Court Decisions, 23 Pol. Behav. 181, 190 (2001) ("Americans may be realistic about the actual determinants of Supreme Court decision making, but they continue to believe in the ideal of the apolitical Court.");
196. Scheb& Lyons, Myth of Legality, supra note 149, at 938 ("Politicians who might be tempted to attack the Court run the risk of offending those who subscribe to the myth of legality.").
197. Amy McQueen & William M.P. Klein, Experimental Manipulations of Self- Affirmation: A Systematic Review, 5 Self & Identity 289, 303 (2006) (discussing relationship between social comparisons and self-affirmation).
198. This is a version of a call for judicial humility. See Kahan, Neutral Principles, supra note 98, at 62 n.347 (describing humility as "consciousness of one's own limits"). Our focus here is on recognizing one's limitations by breaking down group identities and discussing the Court differently.
199. 131 S. Ct. 1207, 1226 (2011).
200. 542 U.S. 507, 554-79 (2004) (Scalia, J., dissenting).
201. Lilienfeld et al., supra note 143, at 393.
202. Jack Glaser & Eric D. Knowles, Implicit Motivation to Control Prejudice, 44 J. Experimental Soc. Psychol. 164 (2008) (discussing phenomenon).
203. Id. at 164.
204. Russell H. Fazio, Joni R. Jackson, Bridget C. Dunton & Carol J. Williams, Variability in Automatic Activation as an Unobtrusive Measure of Racial Attitudes: A Bona Fide Pipeline?, 69 J. Personality & Soc. Psychol. 1013, 1022-23, 1025 (1995) ("[T]he expression of judgments and the performance of overt behavior may be carefully and deliberately monitored [by test subjects] so as to avoid the appearance of a prejudiced response.").
205. Glaser & Knowles, supra note 161, at 165 (emphasis omitted).
206. Bertram Gawronski, Roland Deutsch, Sawsan Mbirkou, Beate Seibt & Fritz Strack, When "Just Say No" Is Not Enough: Affirmation Versus Negation Training and the Reduction of Automatic Stereotype Activation, 44 J. Experimental Soc. Psychol. 370, 370 (2008).
207. Id. at 375.
208. See id. at 370 ("[A] more effective means to change unwanted stereotyping is to combat the automatic activation of stereotypes in the first place rather than to deliberately control their influence on behavior once ... activated.").
209. Gail Heriot, Way Beyond Candor, 89 Mich. L. Rev. 1945, 1948 (1991) ("The point here is simply that some constraint in the law is beneficial, and the more rigid formulation offers more constraint on the judge than the more flexible and discretionary formulation.").
210. Suzanne B. Goldberg, Constitutional Tipping Points: Civil Rights, Social Change, and Fact-Based Adjudication, 106 Colum. L. Rev. 1955, 1958 (2006).
211. Jeffrey J. Mondak & Shannon Ishiyama Smithey, The Dynamics of Public Support for the Supreme Court, 59 J. Pol. 1114, 1115 (1997) ("[A]n active and even controversial Court can enjoy strong, stable aggregate support.").
212. Keith E. Whittington, Once More unto the Breach: PostBehavioralist Approaches to Judicial Politics, 25 Law & Soc. Inquiry 601, 611 (2000) (noting broad support for proposition that justices act "strategically, in the sense of understanding and anticipating the likely responses of others to the judge's own actions").
213. Keith Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (2007) (discussing political supports as improving or harming power of Court).
214. Gregory A. Caldeira & James L. Gibson, The Etiology of Public Support for the Supreme Court, 36 Am. J. Pol. Sci. 635, 649 (1992) (noting diffuse support for Supreme Court remains high among those who support institutional purpose, regardless of support for specific Court decisions).
215. James L. Gibson et. al., Measuring Attitudes, supra note 140, at 355.
216. James L. Gibson, The Legitimacy of the U.S. Supreme Court in a Polarized Polity, 4 J. Empirical Legal Stud. 507, 521 (2007) (showing continued support of Court over time despite increased political polarization).
217. There is research suggesting local public opinion in response to a Court decision might be different than national public opinion. See generally Valerie J. Hoekstra & Jeffrey A. Segal, The Shepherding of Local Public Opinion: The Supreme Court and Lamb's Chapel, 58 J. Pol. 1079 (1996) (discussing effect on constituency involved in Lamb's Chapel v. Ctr. Moriches Union Free Sch. Dist., 508 U.S. 384 (1993));
218. Valerie J. Hoekstra, The Supreme Court and Local Public Opinion, 94 Am. Pol. Sci. Rev. 89 (2000) (comparing impact of specific cases on local communities implicated and population at large).
219. Post & Siegel, supra note 16, at 407.
220. Id. at 406.
221. id. at 374 ("Stunned by the ferocity of the conservative counterattack, progressives have concluded that the best tactic is to take no action that might provoke populist resentments.").
222. David Pozen, Judicial Elections as Popular Constitutionalism, 110 Colum. L. Rev. 2047, 2063 (2010) ("Departmentalism refers to the idea that the coordinate branches of government possess independent authority to interpret the Constitution.").
223. Robin West, The Aspirational Constitution, 88 Nw. U. L. Rev. 241, 243 (1993) (noting small role Congress plays in constitutional law).
224. Stuart Taylor, Jr., The Tipping Point, Nat'l J., June 10, 2000, at 1810, 1811 (quoting Justice Scalia as stating, in regards to presumed constitutionality of congressional acts, "'[I]f Congress is going to take the attitude that it will do anything it can get away with and let the Supreme Court worry about the Constitution ... then perhaps that presumption is unwarranted.'").
225. U.S. Const. art. I, § 2, cl. 1 ("The House of Representatives shall be composed of Members chosen every second Year by the People of the several States ....");
226. id. amend. XVII ("The Senate of the United States shall be composed of two Senators from each State, elected by the people thereof, for six years ....").
227. Thomas O. Sargentich, The Limits of the Parliamentary Critique of the Separation of Powers, 34 Wm. & Mary L. Rev. 679, 718 (1993) ("After all, ongoing checks and balances between the legislative and executive branches are themselves a source of political accountability.").
228. Anthony Lewis, Law or Power?, N.Y. Times, Oct. 27, 1986, at A23 (reporting "widely held public and legal view" in favor of judicial supremacy);
229. see also supra notes 24-33 and accompanying text (detailing negative views of judicial activism).
230. There have been many discussions in Congress of disagreements with the decisions of the Court, and even thousands of pieces of introduced legislation to remedy this disagreement.
231. Gerald Gunther, Congressional Power to Curtail Federal Court Jurisdiction: An Opinionated Guide to the Ongoing Debate, 36 Stan. L. Rev. 895, 896 (1984) ("Jurisdiction-curbing proposals have surfaced in Congress in virtually every period of controversial federal court decisions.").
232. Ruth Walker, O'Connor Assails "Pervasive Attacks" on Judges and Judicial Independence, Harv. L. Sch. (Feb. 2007), http://www.law.harvard.edu/news/today/hlt_feb07_oconnor.php (on file with the Columbia Law Review) ("In her remarks ... O'Connor ... decried an atmosphere of growing hostility toward the judiciary 'in the halls of Congress' ... citing recent threats by some members of Congress to impeach judges whose rulings refer to decisions by courts abroad.").
233. Daryl J. Levinson & Richard H. Pildes, Separation of Parties, Not Powers, 119 Harv. L. Rev. 2311, 2330-47 (2006) (explaining that party system creates incentive for party-alignment and therefore polarization).
234. Samuel Issacharoff, Collateral Damage: The Endangered Center in American Politics, 46 Wm. & Mary L. Rev. 415, 424 (2004) (describing role of primaries in increasing party polarization).
235. Richard H. Pildes, The Supreme Court, 2003 Term-Foreword: The Constitutionalization of Democratic Politics, 118 Harv. L. Rev. 29, 114-15 (2004) ("Gerrymandered election districts, which pack voters with similar preferences into safe districts, produce representatives who reflect more partisan extremes.").
236. See generally Bill Bishop, The Big Sort: Why the Clustering of Like-Minded America Is Tearing Us Apart (2008).
237. Stephen A. Jessee, Voter Ideology and Candidate Positioning in the 2008 Presidential Election, 38 Am. Pol. Res. 195, 206 (2010) ("[C]ampaign donations, volunteering, or other sources of assistance tend to come from more ideologically extreme voters.").
238. Pozen, supra note 180, at 2054.
239. Hibbing & Theiss-Morse, supra note 24, at 67-72 (explaining relative approval of Court compared to Congress).
240. Gibson & Caldeira, Citizens, supra note 25, at 3 ("According to this theory [of positivity bias] ... anything that causes people to pay attention to the court ... winds up reinforcing institutional legitimacy ....").
241. Hibbing & Theiss-Morse, supra note 24, at 67-70 (describing pattern that approval of Congress decreases as public sees more of it).
242. Kramer, supra note 19 (discussing how "the people themselves" were responsible for creating, interpreting, and implementing United States Constitution).
243. Friedman, Birth, supra note 8, at 155 (describing academia's "obsession" with countermajoritarian democracy).
244. Justin Driver, Obama's Law, New Republic, June 30, 2011, at 12.
245. Tushnet, supra note 5, at 177
246. Obama, supra note 6, at 83 (stating he "wondered if, in our reliance on the courts to vindicate not only our rights but also our values, progressives had lost too much faith in democracy").
247. Paul Frymer, Acting When Elected Officials Won't: Federal Courts and Civil Rights Enforcement in U.S. Labor Unions, 1935-85, 97 Am. Pol. Sci. Rev. 483, 483 (2003) (discussing ways federal courts might and do exercise more power when Congress fails to do so).
248. Michael McCann & Helena Silverstein, Rethinking Law's "Allurements": A Relational Analysis of Social Movement Lawyers in the United States, in Cause Lawyering: Political Commitments and Professional Responsibilities 261, 264-66 (Austin Sarat & Stuart Scheingold eds., 1998) (describing ways in which elites get involved in causes).
249. For a discussion of this dynamic, see generally Paul Burstein, Legal Mobilization as a Social Movement Tactic: The Struggle for Equal Employment Opportunity, 96 Am. J. Soc. 1201 (1991).
250. Post & Siegel, supra note 16, at 373.
251. J. Harvie Wilkinson III, Of Guns, Abortions, and the Unraveling Rule of Law, 95 Va. L. Rev. 253, 257 (2009).
252. See generally Bickel, supra note 2.
253. Post & Siegel, supra note 16, at 376-77 ("We argue that each of these [backlash] theorists tends in his own way to overestimate the costs of backlash and to underestimate its benefits. Contemporary scholarly debate does not sufficiently appreciate the ways that citizen engagement in constitutional conflict may contribute to social cohesion in a normatively heterogeneous polity.").
254. Schauer, supra note 86, at 9 ("The Court ... operates at a distance from the center of gravity of the nation's policy portfolio ....").
255. For a related point, see Barry Friedman, The Counter-Majoritarian Problem and the Pathology of Constitutional Scholarship, 95 Nw. U. L. Rev. 933, 933 (2001) (arguing scholars should stop focusing on countermajoritarian difficulty because other political elements of judicial review are more important).
256. For a summary of these strategic decisions by Marshall and his colleagues, see Richard Kluger, Simple Justice: The History of Brown v. Board of Education and Black America's Struggle for Equality 53-79 (2004).
257. Question module orders were randomized.