Public opinion re the Court

Views of Supreme Court decisions held by the people of the United States.

Like any other governmental institution in a free society, the Supreme Court is ultimately accountable to the people of the United States. Unlike the legislative and executive branches of government, the Court is not directly accountable to the people because its justices are not elected and serve for life. The Framers deliberately insulated the Court from the electoral process to ensure that the judges would render independent decisions that were not swayed by political pressure or popular caprice. The Court, however, is in some ways even more dependent on the goodwill of the public than are the other two branches of government because, in Alexander Hamilton’s famous phrase, it is possessed of neither the power of the purse nor the power of the sword. Insofar as the Court’s only real power is its ability to command public respect, the Court must always remain mindful of public opinion.

Since its creation, the Court generally commanded widespread public respect and support even though it carefully shielded its independence and rendered many unpopular decisions. The Court succeeded in maintaining this delicate balance because it convinced the people of its fundamental integrity as the ultimate guardian of the rule of law. Paradoxically, the unpopularity of some of the Court’s decisions may have helped to enhance public respect for the Court because such decisions have confirmed its independence. The precise interaction between public opinion and the Court is impossible to gauge because public opinion is diffuse and often inchoate, while the Court rarely if ever allows public opinion to influence individual decisions.

Numerous surveys indicate that most U.S. citizens have only a vague understanding of the Court’s work and know little or are misinformed about individual decisions. Some surveys show that the names of most of the justices are known to fewer than 3 percent of American adults. Although coverage of the Court by news media may have improved during the 1980’s and 1990’s as many news mediaNews media coverage paid more attention to the Court and hired reporters who were highly trained in legal affairs, reporting of the Court’s decisions is often superficial and sporadic. Public reaction to the Court is therefore more likely to find its most vocal expression and impact among the more well-informed and politically active segments of the population or through organized interest groups.

Public Reactions

Because the Court’s most significant decisions usually involve politically sensitive issues, such decisions inevitably antagonize powerful segments of the public. Over the years, the Court has offended many important political interests. Jeffersonian-Republicans balked at decisions made by the Court under John Marshall that enhanced federal power and protected capitalistic enterprise during the early nineteenth century. Populists, progressives, and labor unions expressed outrage over decisions nullifying social and economic legislation during the early twentieth century. Segregationists were furious about the Court’s decisions on race during the 1950’s and 1960’s. Cultural conservatives since the 1960’s opposed many of the Court’s decisions on criminal rights, abortion, and separation of church and state.

In these and many other instances, opponents of the Court’s decisions called for legislation or constitutional amendments to overturn individual decisions and proposed myriad plans for curbing the Court’s power, including diminution of the Court’s jurisdiction, election of justices, and limitation of judicial tenure. The resilience of public respect for the Court is demonstrated by the persistent failure of these perennial efforts to curtail the Court’s power. The most dramatic example occurred in 1937. After the Court held that several of President Franklin D. Roosevelt’s New Deal programs were unconstitutional, Roosevelt developed a Court-packing planCourt-packing plan designed to fill the Court with justices favorable to his programs. Congress rejected Roosevelt’s plan, even though the overwhelming majority of members of Congress supported the New Deal programs that the Court’s decisions had thwarted. Public opinion polls at the time showed that two-thirds of the public opposed Roosevelt’s plan even though two-thirds also opposed the Court’s decisions striking down New Deal programs. Many of the Court’s most vociferous critics expressed alarm over Roosevelt’s effort to interfere with judicial independence.

Public opinion polls showed that two-thirds of the public opposed the Supreme Court’s striking down of the New Deal program statutes of President Franklin D. Roosevelt (pictured here) although an equal proportion opposed his court-packing plan.

(White House Historical Society)

The depth of public respect for the Court in the twentieth century was evident even among proponents of Court-curbing measures, most of whom advocated such measures as tactical means of influencing the Court rather than because they had any abstract objections to judicial power or independence. Most critics of the Court, all along the political spectrum, were quite ready to support judicial power when it served their purposes.

Social Trends and Court Decisions

Although many of the Court’s opinions offended significant segments of the public, the Court generally stayed within the general bounds of broad public consensus on most issues. For example, during the early twentieth century, the Court sustained the constitutionality of more legislation than it invalidated. Similarly, the Court’s racial desegregation decisions during the mid-twentieth century reflected changing public attitudes and practices in most parts of the nation. Indeed, some scholars argue that the Court followed public opinion at least as much as it led public opinion. The Court’s decisions, however, often help accelerate preexisting trends of social and political change. For example, the Court’s decisions on desegregation may have helped to encourage broader public acceptance of racial equality, even though the Civil Rights movement was the result of complex social and political forces that the Court did not initiate.

In some instances, public opinion appears to have relatively directly influenced the Court’s decisions and opinions. During the 1920’s, for example, the Court’s early civil liberties decisions were motivated in part by the Court’s wish to allay growing criticism of its nullification of economic regulatory legislation by demonstrating that judicial power could also be used to protect personal liberties. Similarly, there is evidence that the Court’s abandonment of careful scrutiny of economic legislation beginning in 1937 was influenced by Roosevelt’s Court-packing plan. Moreover, the firestorm of criticism regarding the Court’s decisions on subversion during 1956-1958 apparently caused the Court to take a more restrained position in similar cases during the next few years.

Further Reading

  • Marshall, Thomas R. Public Opinion and the Supreme Court. Boston: Unwin Hyman, 1989.



News media coverage

News media coverage

Public opinion re the Court

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