Public Opinion and the Supreme Court

Introduction
The Court is to some degree influenced by public opinion, Thomas R. Marshall took this approach in Public Opinion and the Supreme Court (Marshall 5-12). Public opinion in the modern, polling sense of the term is a phenomenon that originated during the 1930s with the first fledgling efforts of George Gallup and his organization to devise samples and reliable interview techniques (Gallop 783). Given Americans’ inclination, noted by Alexis de Tocqueville, to transform most social and economic and political problems into legal ones, the Court’s agenda of course reflects the societal agenda (Mayer & Lerner 137). Despite judges likely denial to the contrary, there is reason to believe that to some degree and on certain issues, U.S. Judges do temper their decision making with public opinion. Judges as human beings, as parents, as consumers, as residents of the community are themselves part of public opinion. Being a judge may cause them to have a greater concern for responsible, objective decision making, but it dos not void a judge’s membership in the human race. As judicial scholar Henry Glick has noted, Since judges often have been born, reared, and recruited from a local political system, it seems likely that public opinion would have an effect, especially in issues that are locally visible and controversial. Even with lifetime appointmentsâÂ?¦public opinion still might seep into judicial decisions via judges’ personal experiences and attitudes (Glick 247).

Public Opinion and Supreme Court Cases
Of the first Supreme Court justices, James Wilson of Pennsylvania was the most sensitive to the Court’s need to accommodate public opinion. In his first grand jury charge in the circuit courts, he said that the will of the people first expressed in elections “ought to pervade all the subsequent progress and stages of the public business.” This will preserve and secure the Constitution, for it “will be always accommodated to the dispositions, manners, and habits of those, for whom it is intended.” Wilson concluded his general remarks with a tribute to Americans and the jury system: “We now see the circle of government, beautiful and complete. By the people, its springs are put in motion originally: By the people, its administration is consummated: At first, at last; their power is predominant and supreme” (Marcus 33-34, 40)

In his first grand jury charge Chief Justice John Jay of New York took the opportunity to call for “good will, and good Temper, and the Progress of useful Truths among our Fellow citizens.” As part of his lesson he talked about the improvements in the science of government, with the separation of powers and checks and balances, which prevent meddling “with the Rights reserved by the Constitution to the People.” Defending the existence of the federal courts as a necessary result of the formation of a nation, the chief justice tied individual prosperity to national prosperity, which was dependent upon “a well organized Government, ruling by wise and equal Laws, faithfully executed.” He reminded his listeners that such a government is a threat only to arbitrary power and licentiousness, not to civil liberty, which “consists in an equal Right to all the Citizens to have, enjoy, and to do, in peace Security and without Molestation, whatever the equal and constitutional Laws of the Country admit to be consistent with the public Good” (Marcus 27-31).

While John Jay defended the role of the new courts as an indispensable part of the country’s nationhood, his colleague James Iredell of North Carolina called attention to the “higher and more important” role of the federal judiciary “as a great constitutional guard of the constitution itself, since it is to carry into effect no laws but such as the constitution authorizes.” Iredell speculated that this built-in restriction on the legislative power, although a unique characteristic of American government, was necessary to protect the “sacred bulwark” of “essential personal rights” (Marcus 218-220).

The intertwining of personal views and racial jurisprudence is also a factor with Justices, including, for example, David Brewer, one of the justices in the Plessy majority. Many years after Plessy, Brewer had occasion to enlarge on his views on race. He observed that most whites viewed blacks as inherently inferior in morals and intellect. In his view, however, it was impossible to determine whether their degraded condition was do to environmental factors or to innate deficiencies. It was duty of whites to show Christian compassion. Interpersonal abuse of blacks ought to be avoided and support given to those organizations devoted to teaching blacks elementary skills and the rudiments of civilized behavior (Fairman 279, 564).

When the media reported that Judge William Overton was involved a decision that overturned Arkansas’s creation-science law, the judge received over 500 letters, most of them highly critical. The judge was so overwhelmed by the outpouring of negative public opinion that he took the unusual step of making the letters available to reporters and the University of Arkansas at Little Rock (Houston Chronicle 1:9).

The story of Clarence Gideon, an indigent defendant forced to defend himself, who petitioned the United States Supreme Court asking that he be released from custody, has been well told. Gideon had been charged with breaking and entering a poolroom with the intent to commit a crime, a felony under Florida law. The state had denied any obligation to provide him with counsel. To argue the case for Gideon, the Supreme Court chose the well-known Washington lawyer, Abe Fortas. He was asked to address whether Betts, which required states to furnish counsel only in special circumstances, should be overruled (Lewis 48-56, 63-68). Unanimously, the Court in Gideon v. Wainwright decided that counsel had to be provided for indigent criminal defendants. The influence of public opinion was reflected in letters of support for Gideon from 23 states. “Among the unusual aspects of this brief for twenty-three states was the fact that three of the signers, Hawaii, Maine, and Rhode Island, had no general requirement for appointment of counsel in felony cases” (Lewis 148). The Sixth Amendment’s provision for counsel was now made binding upon the states.

The mere fact that twenty-three states would urge the Supreme Court to impose a new standard of fairness on state criminal procedure was the most startling of all. Indeed, when one member of the Supreme Court saw this amicus brief, he remarked that he would not have been surprised had the Court instead received one from forty-nine states endorsing Florida’s position (Lewis 148)

Justice Black, for the unanimous bench, said that the Court had erred in Betts (Betts v. Brady, 316 U.S. 455, 1942). That the Court took so long to face the reality that equal justice under law was a mockery if a criminal trial pitted the legal expertise of the prosecutor against the layman defendant was now clearly regretted by the justices. They all agreed that a system that so disadvantaged a criminal defendant was not in accord with the American faith (Gideon v. Wainwright 372 U.S. U.S. 335, 342, 344, 372 1963).

“Thus, the process of converting the ideal of Gideon v. Wainwright into reality necessarily involved the participation of legislators, lawyers, judges and citizens across the country” (Lewis 201).

McCarthy stirred up a national hysteria with his warnings, uttered again and again all around the US, that came down to what so many fearful Americans heard as, “the Soviets are among us.” He didn’t really convict anyone. Instead, McCarthy used vague charges and guilt by association, now called “McCarthyism,” to fortify his campaign of terror. McCarthy was successful McCarthy at spreading fear among many Americans. There was even polling data showing that the senator, for a short while, was almost as popular as President Eisenhower. He was dangerously divisive. McCarthyism’s effects were felt in the nation’s schools and universities and in the State Department, where a whole generation of China experts was professionally destroyed. It even extended to the entertainment industry, where people were blacklisted and denied an opportunity to make a better living because of their concerns for social justice and peace (The National Experience 716-718, 733-735). Then came his censure by the Senate, a disgrace from which he never recovered. Public opinion turned against him when he tried to investigate the Army; in December 1953, the Senate voted 67-22 to censure him for “contemptuous conduct” and abuse of select committee privilege (The National Experience 716-718, 733-735).

The cold war liberals denounced McCarthy, which is to their credit but not all that surprising, given that he was vigorously attacking them. What they failed to do, with a few honorable exceptions, was to challenge the heart of the McCarthyite rationale: that the Communist Party was purely and simply a criminal conspiracy whose members had forfeited any claim to civil liberties. As a result, they ended up condoning such invasions of individual rights as the deportations of people who had been in the party for a few months many years before or the dismissals of ex-Communist professors who took the Fifth Amendment before HUAC. The effect of the sentiments during the red scare was manifested when the Supreme Court upheld the criminalization of political discourse in what became known as the Communist conspiracy cases prosecuted under the Smith Act of 1940 (The National Experience 716-718, 733-735). The law made it a crime to discuss the “duty, necessity, desirability, or propriety of overthrowing or destroying the government,” which was an unusual statute in a country created by a revolution against the legal government of that day (Dennis v. United States, 341 U.S. 494, 1951). It was not until 1957 that the Supreme Court reversed the trend in those cases, overturning convictions under the Act (Yates v. United States, 354 U.S. 298, 1957).

One reason for suggesting the influence of public opinion on judicial behavior is that in many instances it is actually supposed to be an official factor in the decision-making process. For example, when it came to implementing the famous Brown v. Board of Education school desegregation ruling, the Supreme Court refused to set strict national guidelines for how their ruling was to be carried out. It was left up to individual federal district judges to implement the High Court decision based on the judges determination of local moods, conditions, and traditions (Brown v. Board of Education, 349 U.S. 294, 1955). Likewise, when the Supreme Court ruled that it was permissible for federal courts to hear cases involving malaportionment of state legislatures, it refused to indicate how its decision was to be carried out. Instead it was in effect left to the lower federal judiciary to implement the ruling in accordance with the way they viewed local needs, conditions and the state political climate (Baker v. Carr, 369 U.S. 186, 1962). In the obscenity rules of the Burger Court, the justices determined that federal courts should use community values and attitudes in determining what materials are obscene (Miller v. California, 413 U.S. 15, 1973).

Supreme Court justices in general are aware that ultimately their decisions cannot be carried out unless there is a reasonable degree of public support for them. As Supreme Court scholar, Lawrence Baum, has noted, “Presumable, the more favorably people view the Court and its work, the more likely they are to carry out the Court’s policies rather then to impede them” (Baum 128). When the Court is about to had down a bombshell decision that is likely to unpopular among many groups of Americans, the author of the majority opinion makes a great effort to word the decision in such as way as to generate popular support for it, or at least to make it somewhat acceptable to those potentially offended by it. Examples of Court decisions in which the author is thought to have written as much for the public at large as for the usual narrow audience of lawyers and lower court judges include the following: Marbury v. Madison, 1 Cranch 137 (1803) in which the Court claimed for itself the right to declare acts of Congress unconstitutional; Brown v. Board of Education, 347 U.S. 483 (1954), which called for an end to racial segregation in the public schools; Roe v. Wade, 410 U.S. 113 (1973) in which the Court upheld a woman’s right to an abortion; and United States v. Nixon, 418 U.S. 683 (1974) the Watergate case in which the justices ordered the president of the U.S. to yield to the authority of the courts.

The relationship between what the Court does and what the public thinks is a fairly complicated matter. Even though a substantial proportion of the public might subscribe to basic value positions on matters of race there is no clearly formulated or articulated public view on many of the important but technical issues that come before the Court. The 1989 case Patterson v. McClean provides an example. At the technical level the case dealt with whether Brenda Patterson, a black woman, could use provisions of the Civil Rights Act of 1866 to pursue redress against a supervisor whom she alleged had harassed her on racial grounds, the relevant clause being one which afforded blacks the same right to contract as enjoyed by whites. In effect, did the language of the Civil Rights Act of 1866 speak only to the matter of the right to form a contract, in the sense of a right not to be denied a job on racial grounds, or did it also provide the basis for a suit under circumstances in which the employer fell short in terms of performance of the contract by tolerating racial harassment of the minority employee (Patterson v. McLean, 485 U.S. 617, 1988). This was an important but technical question going to the issue of the legal basis on which a minority employee might pursue a claim based on an allegation of a hostile racial environment. Whatever the public’s views as to whether racial remarks on the job constitute levity or harassment it has no view on the applicability of the Civil Rights Act of 1866 as the framework within which legal redress for a claim of harassment might be pursued (Patterson v. McLean, 485 U.S. 617, 1988).

When its rulings reaffirm rights previously recognized or recognize new rights, particularly those of underrepresented minorities, the Court can be said to be fulfilling one of its roles in American democracy, countering majoritarian tendencies by upholding minority rights. The Court can, however, play other, somewhat more limited, roles with respect to rights. One is the role of legitimator, a role the Court played in the Civil Rights Act of 1964 (Heart of Atlanta Motel v. United States, 1964) and the Voting Rights Act of 1965 (South Carolina v. Katzenbach, 1966); in those cases it upheld Congress’s actions and generally made clear that it would defer to congressional leadership in civil rights matters.

The Court has also legitimated others’ efforts to gain and protect rights. For example, it invalidated southern efforts after Brown v. Board of Education to immobilize the NAACP through state requirements that the organization reveal its membership lists (NAACP v. Alabama, 1956) and through charges of barratry leveled against the NAACP because it advised people of their constitutional rights to equal treatment (NAACP v. Button, 1963). The Court’s revival of the Reconstruction-era civil rights statutes (United States v. Guest, 1966; United States v. Price, 1966; and Jones v. Alfred H. Mayer Co., 1968) also facilitated private citizens’ complaints about deprivations of their rights.

Conclusion
Justice Oliver Wendell Holmes may have sensed this truth when he wrote, in The Common Law (1881), “The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong” (Holmes 41). Implicit in a view of the Court as a small group in a sociological sense is a view of its history as indeterminant but not capricious. The view of Court’s history as indeterminant is close to professor Richard Delgado’s articulation regarding “the relative autonomy of law,” which “refers to a description of law as connected to but not wholly dependent upon historical, economical and political realities” (Matsuda 328) In this approach the Supreme Court is connected to but not wholly dependent upon historical, economic, or political realities. The Court’s decisions have a potential effect on many people. At times, the Court’s decrees are carried out: school prayers cease and criminal suspects are warned of their rights (Barnum 652-655; Pious 116-117). However, resistance has led to overturning the Court’s rulings, most dramatically when the Constitution itself is amended, as it was to eliminate slavery (Thirteenth Amendment) and to allow an income tax (Sixteenth) and the vote for eighteen-year-olds (Twenty-sixth). After the Court interprets a statute, legislators frequently rewrite the laws to retain their earlier intent. Thus, as a policy maker, the Court does not have the final word: the law is what the Court says it is, but only after all others have had their say.

WORKS CITED
Barnum, David G. “The Supreme Court and Public Opinion: Judicial Decision Making in the Post-New Deal Period.” Journal of Politics 47 (1985) 652-65.

Fairman, Charles. Reconstruction and Reunion, 1864-88, Part Two, New York: Macmillan, 1987.

Gallop, George. The Gallop Poll: Public Opinion. New York: Random House, 1935-1971.

Glick, Henry. Courts, Politics, and Justice. New York: McGraw-Hill, 1983.

Holmes, Oliver Wendell. The Common Law. (1881). 1938 edition, 4.

Houston Chronicle. “Arkansas Judge Who Struck Down Creation-Science Law Condemned in Hundreds of Letters. (August 6, 1982): 1:9.

Lewis, Anthony.Gideon’s Trumpet. New York: Alfred A. Knopf, 1964.

Marcus, Maeva. The Documentary History of the Supreme Court of the United State. vol. 2,. New York: Columbia University Press, 1988.

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

Matsuda, Mari. “Looking to the Bottom: Critical Legal Studies and Reparations.” Harvard Civil Rights, Civil Liberties Law Review, 22, no. 2, (Spring 1987): 327-330.

Mayer, J. P. and Max Lerner Alexis de Toqueville. Democracy in America, Editors. New York: Harper & Row, 1966.

The National Experience: A History of the United States since 1865.New York, Harcourt Brace College Press, 1993.

Pious, Richard. American Politics and Government. New York: McGraw Hill, 1986.

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