The United States Supreme Court and Public Opinion

The join renders sovereign mash is a unique American institution. It is unique because, unlike the individuals serving in the executive and the legislative branches of government, the nine justices serving at the highest level of the fall in States dictatorial tap argon insulated in significant ways from the normal they are sworn to serve. Most significantly, the justices are provided lifetime legal injury undermenti sensationd nomination and confirmation. Unlike presidents or members of Congress, for example, the justices do non get to go bad initial mankind elections or prepare for reelection campaigns.In effect, in mevery ways, the members of the fall in States arrogant mash are insulated from the habitual that they serve in laughable and unique ways. This very insulation, in wrench, has generated fierce debates among levelheaded scholars, governmental scholars, and historians regarding the right-hand(a) characterization of the birth between the joined Stat es dogmatic address and existence sagaciousness and the consequences of different characterizations.This try bequeath argue that the justices of the join States overbearing romance are not nearly as isolated as conventional wisdom and scholarship too frequently adopt, that human race feel displaces the justices in a myriad of deeply significant ways, and that adopting a majoritarian dumbfound better explains the unite States self-governing coquet as well as better serving central semi macrocosm policy objectives.In order to bear the argument that majoritarian framework is the preferable model, this essay will explain wherefore analytical frameworks are e peculiar(a)ly important in this context, the consequences of the different come neares, and why a majoritarian improvement is the better framework for analyzing and discussing the relationship between the unify States supreme hail and man faith. B. Why Analytical Frameworks MatterThis debate is curiously important because these justices, serving for life terms, are elevated to the coupled States despotic Court as a result of semipolitical decisions kinda than talented merit or the possession of a neutrally objective judicial philosophy. Indeed, it is comm plainly agreed by scholars that Judges and scholars perpetuate the myth of merit. The reality, however, is that every grant is political.Merit competes with new(prenominal) political considerations, like personal and ideological compatibility, with the forces of support or opposition in Congress and the White House, and with demands for representative appointments on the bases of geography, religion, race, gender, and ethnicity. (OBrien 33) It is this political connection that makes the relationship between the coupled States arrogant Court and the American citizenry such(prenominal) an important issue.This is because certain assumptions whitethorn encourage special interests to pursue political appointments to the dic tatorial Court in an feat to outfox public thought. For those whom subscribe to the countermajoritarian school of thought, which holds that the authoritative Court is largely repellent to public intuitive feeling and hardly modulated by public faith, the look is that erstwhile a nominated justice is confirmed that he or she will be able to issue reignings unhindered by the pressures of public confidence (Davis 4).As a result, this begin encourages deeply political appointments because there is a feeling that minority interests can be advance(a) or differently protected by a public institution shielded from public scene this, in turn, encourages potential justices to refrain from expressing their intellect or their opinions h iodinstly in order to minimize political problems. unity scholar has described this dumbing down of a candidates merits olibanumly A fictive communication of appointments has thus emerged a nominees advocates make his grounds in the ideolog ically neutral spoken language of merit, as if the candidates catchs had no bearing on his selection, (Greenberg, n. p. ) That prospective justices of the United States controlling Court are compelled to engage in a fictive discourse is both disturbing and contrary to the American ideal of open and openhanded discourse.The confirmation battle involving Robert Bork was illustrative of this showcase of political battle indeed, rather than focusing on Borks intellectual abilities or merits the confirmation hearings devolved into mayhap the just astir(predicate) contentious confirmation battle in modern history. Indeed, as 1 leading scholar of the Bork proceedings has mention, highlighting the aforementi whizd dangers associated with the countermajoritarian framework,Because hardly a(prenominal) knowledgeable observers questioned Judge Borks professional qualifications, opposition to Bork quickly focused on his judicial philosophy. The focus on ideology raised a of the essenc e(p) issue as to whether it was suitable for the Senate to reject for ideological reasons an differentwise certified nominee. (Vieira, and Gross vii)On the other hand, for those whom subscribe to the majoritarian school of thought, an increasingly influential get to the relationship between the United States exacting Court and public opinion, the belief is that the justices are not only not insulated from public opinion exclusively that public opinion affects the justices intimately in terms of the slips of cases they choose to steady down each year (OBrien 165), what statutory justifications that justices choose to rely on when decision making crossly contentious cases (Waltenburg, and Swinford 242), and whether to uphold or overturn longstanding heavy precedents (Norrander, and Wilcox 707).Such assumptions, that public opinion does matter and that it matters significantly, have several significant implications if they are true. First, selecting politics over merit when deciding whom to nominate to the United States peremptory Court may be overrated more than specifically, justices will supremely be more sensitive to public opinion than the political alliances that earned them the nomination in the first place.They will, after all, be freed of the need to sustain the political alliances after confirmation as a result of their lifetime land tenure whereas they will always be judged by public opinion. A case in point was the Republican nomination of Warren Burger. He was know to have been a conservative with a strict construction shape up to the interpretation of the United States Constitution. In short, from a countermajoritarian point of follow, Burger had seemed an extraordinarily beneficial political choice for the United States Supreme Court.The reality, however, was that as the 15th caput Justice of the United States Supreme Court, Burger began to rule in ways that blow out of the water his initial supporters. Rather than shunning pu blic opinion, as his supporters wanted on issues such as race, he has since become known as one of the more activist Chief Judges in the history of the United States Supreme Court. The countermajoritarian school of thought cannot account for such a trip in judicial behavior, and this is a major flaw in this particular analytical framework.Burger is much better understood, as is the United States Supreme Court more generally, by employing a majoritarian framework that accounts for public opinion in admission to underlying political alliances or political philosophies. Second, if these assumptions are true, past public opinion matters. That means that studying the United States Supreme Court in isolation, rather than in conjunction with other related accessible factors such as public opinion, is a blemished approach.The better analytical framework is the majoritarian approach which, though a minority approach, accomplishes dickens important objectives. Initially, by accounting fo r and analyzing more carefully the relationship between public opinion and the United States Supreme Court, courts like Burgers can be better understood and better explained in addition, the majoritarian approach legitimizes public opinion as a part of the interior(a) debate with respect to legal issues of public interest rather than confining these issues to nine distant justices in a mysterious ivory tower.If one of the main gos of the justices is to safeguard the au accordinglyticity of the American constitution, a document conceived of and designed to protect the public generally, then sound policy demands public participation and influence. There are two main questions to be proposed. First, does the countermajoritarian or the majoritarian framework better explain how the United States Supreme Court functions? Second, and related to the first issue, which model better contributes to the genuineness of the United States Supreme Court and its legal decisions.C. Main Questions 1. Countermajoritarian or Majoritarian A Threshold Issue Although the United States Supreme Court is one of the most heavily studied American institutions, there remain significant differences of opinion regarding the nature of the relationship between the Supreme Court and public opinion. One of the more fundamental debates among legal scholars, political scientists, and historians centers on whether the United States Supreme Court is in essence a countermajoritarian institution or a majoritarian institution.This debate has important implications. Those that believe that the countermajoritarian model best characterizes the actual function and operation of the United States Supreme Court also tend to view the Supreme Court as being largely insulated from public opinion on the other hand those that believe that the majoritarian framework best characterizes the Supreme Court tend to believe that public opinion, to any(prenominal) extant, affects the function, operations, and the ult imate legal decisions of the Supreme Court.How one resolves this debate, therefore, pervasively affects American jurisprudence indeed, Much constitutive(a) discourse is predicated on the assumption that the United States Supreme Court is a counter-majoritarian institution, and normative theories supporting the exercise of judicial review are seen, by some, as having to accommodate that fact. (Solimine, and Walker n. p). Should this fundamental assumption be proven to be incorrect, and there is a growing body of research that suggests that it may be incorrect, then the constitutional discourse and the normative theories that have flowed from the traditional countermajoritarian characterization of the Supreme Court may be similarly flawed and incorrect.In short, a threshold determination postulate to be made. This threshold question, as is relevant to the relationship between the United States Supreme Court and public opinion, is whether the Supreme Court is in fact a countermajorit arian institution as scholars have traditionally put upd or a majoritarian institution as some modern scholars argue. 2. Supreme Court as Arbiter of LegitimacyIn addition and intimately related to the aforementioned characterization debate, scholars have also examined the relationship of the United States Supreme Court and public opinion in terms of legitimacy more specifically, scholars have debated whether and to what extant Supreme Court decisions resolve contentious legal issues legitimately so far as public opinion is concerned and whether and to what extant legitimacy instead results from public opinion affecting the Supreme Court either directly or indirectly.In short, is the ultimate source of legitimacy regarding contentious legal issues the Supreme Court, public opinion, or the interplay between the two? This source of legitimacy debate is made more difficult by the fact that public opinion tends to be more responsive to a narrow range of legal issues or what has otherwis e been referred to in the literature as landmark cases such as brownish v. Board of Education, Roe V. Wade, and, more recently, Bush v.Gore. If this assumption is correct, that public opinion is only concerned with landmark cases, then the scope of academic head must be significantly narrowed to this end, one scholar has noted that if we assume that only the huge national landmark cases affect public opinion, in essence, we are saying that the remainder of the Courts work is inconsequential, at least(prenominal) in terms of public opinion. (Hoekstra 3).An additional set of threshold questions, therefore, needs to address the more precise relationship between different types of Supreme Court cases and public opinion. Is the relationship relevant only with respect to national landmark cases? Does the relationship differ between landmark and non-landmark cases? This, in turn, demands an analytic thinking which examines both the national and topical anaesthetic effects of Supreme Court decisions. Indeed, acknowledging that exploitation national data, it may be possible to connect cases such as Bush v.Gore to changes in public opinion and support for the Court (Hoekstra 3) one scholar has argued for engaging in a more nuanced analysis that examines localised effects as well by suggesting that beneath the noise may actually be systematic effectsones not easily detectable or the same for all citizensbut systematic nonetheless. If citizens learn about different Court decisions based on information available and salient(ip) to them, then looking for uniform national level effects is misguided. This does not mean that Court decisions are without national effect.If the Courts effect is more localizedeither in terms of geography or some other processwe might still see the effect of Court decisions on public opinion and that Court decisions might affect support for the Court on a national level. The process is just more problematical and possibly more gradual. An other reason to look at local public opinion is that Court decisions frequently require active implementation, oft propagation by local officials. If the Court can change public opinion on the issues, or at least cast legitimacy on the policy under review, the probability of successful implementation is greatly compound (Hoekstra 3)Thus, in short, a second threshold set of questions addresses the extant to which scholars assume that relationships between the Supreme Court and public opinion are special to national landmark cases or whether the relationship can be lengthy according to local effects and conditions. C. Benefits of a Majoritarian Approach The first get ahead of a majoritarian approach is rather intuitive more specifically, because legal issues affect the public then the publics opinion ought to be considered.Although this essay also argues that public opinion is relevant in disputes that may not be considered landmark cases, the evidence strongly supports the propos ition that public opinion particularly affects national landmark cases and that landmark cases decided by the United States Supreme Court tend to affect public opinion. What complicates a proper characterization of the court derives from different historical relationships between the court and the United States Supreme Court. Traditionally, the American public did view the justices as enlightened individuals whom didnt require public input.This sort of public trust justified, in the past, the countermajoritarian approach indeed, with respect to general public opinion, the justices were significantly insulated. One leading scholar, pen in 1957, stated that Until recently, the attitude of Americans toward the Supreme Court recalled with singular fidelity that with which, according to Burke, Englishmen of a century and a half ago should have looked upon the institutions of their country We ought to render it according to our measure and to venerate where we are not able to understan d. (Schwartz iii). This veneration, this assumption that the public can no longer understand the legal issues presented to the United States Supreme Court, is no longer an accurate commentary of the American public quite the contrary, the public regularly criticizes Supreme Court decisions, it more carefully follows potential and actual nominations to the highest court in the land, and by a variety of groups and organization it attempts to influence the court by presenting helper of the court legal briefs on virtually every type of imaginable case.What has emerged more recently is a United States Supreme Court that is besieged by rather than isolated from public opinion one scholar has noted that even presidents attempt to influence the justices, stating that presidents can influence the Supreme Court beyond the appointments process. (Martinek, n. p. ). From the unemployed mother interested in an abortion issue to competing presidential candidates seeking a favorable ruling the United States Supreme Court has become, for better or worse, Americas arbiter of last resort.This change in the way the public perceives and interacts with the United States Supreme Court is the first reason why the countermajoritarian framework is no longer the best approach for analyzing the justices or the relationship between the Supreme Court and public opinion. The detached veneration of the public is a keepsake of the past and has been replaced by a greater public awareness. This greater public awareness, however, cannot be overstated to be sure, though Shifting majorities of the public do disagree with many decisions, to the extent they perceive them, or are scarce ignorant of the great mass of the Courts jurisprudence. (Solimine, and Walker, n. p. ) There are, therefore, gaps in the publics knowledge about the nature of the Supreme Courts major power and the underlying issues. This imperfect knowledge, however, does not render public opinion borderline or irrelevant. It simply suggests that public opinion may at times be somewhat nonsensical both a rational and an irrational public opinion can affect the Supreme Court and the majoritarian approach can be adapted to account for an idealized public which possesses an advanced understanding of analyzable legal issues and an imperfect public which sometimes reacts in less than informed ways.In short, the majoritarian approach is better able to incorporate the complex interactions between the United States Supreme Court than the rigidly outdated countermajoritarian model. In addition to the fact that public perceptions and demands have changed over time, it is also unambiguous that legal precedents have been modified or overturned in result to public opinion. Some of the more well-known cases illustrating this fact have tortuous controversial issues dealing with racial segregation, abortion, and civil rights more generally.A countermajoritarian framework would assume that the justices would be si gnificantly isolated from the public in cases such as Brown v. Board of Education and Roe v. Wade. Had these justices been insulated, it is entirely plausible that these cases would neer have reached the United States Supreme Court, and if they had, that they would have been decided differently. The majoritarian model, on the other, admits that these issues were, to some extant, forced upon the United States Supreme Court and that the justices accommodated public opinion by resolving important national issues.This framework further contributes to an ultimate type of legitimacy with respect to the judicial decisions, even if the legitimacy remains challenged by some members of the public, because it treats the decision as a sort of cooperative effort between the United States Supreme Court and the American public. These decisions, in turn affected public opinion. More people accepted racial integration, more people accepted abortion, and more people came to believe that George W. Bu sh was authorize to the highest office in the land. In Brown v. Board of Education, for instance, the public was severely divided regarding issues of racial segregation.While it is true that the modern trend was toward integration the good-for-nothing fact was that many members of the public, including states, resisted attempts to integrate the races more completely as a result, pressure was brought to bear on the United States Supreme Court. On the one hand, there was a notion that the federal government shouldnt interpose too much in state affairs on the other hand, there was also a growing public recognition that only a decision by the United States Supreme Court, and not any actions by the executive or legislative branches alone, would settle the issues legitimately crosswise the country (Klarman 348).A countermajoritarian framework would instead assume, and incorrectly so, that the justices themselves suddenly decided that racial segregation was unconstitutional rather than attributing a great deal of deferred payment to the American public. The majoritarian model can both predict and explain cases such as Brown v. Board of Education. D. Conclusion In the final analysis, the United States Supreme Court is best analyzed when accounting for the influence of public opinion on its operational and decision-making process.This necessitates shifting toward a more majoritarian approach that also analyzes why and how legitimacy is often a function of the interaction of the Supreme Court and public opinion rather than the outdated view of the justices as isolated wise-men immune to public scrutiny or understanding. work Cited Davis, Richard. Electing Justice Fixing the Supreme Court Nomination Process. New York Oxford University Press, 2005. Questia. 16 July 2009 . Greenberg, David. The New Politics of Supreme Court Appointments. Daedalus 134.3 (2005) 5+. Questia. 16 July 2009 . Hoekstra, Valerie J. human beings Reaction to Supreme Court Decisions. Cambridg e, England Cambridge University Press, 2003. Questia. 16 July 2009 . 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