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The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions

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  • Mishler, William
  • Sheehan, Reginald S.

Abstract

Although normative questions about the role of the Supreme Court as a countermajoritarian institution have long excited controversy in democratic theory, empirical questions about how far the Court acts contrary to majoritarian opinion have received less attention. Time series analyses for the period 1956–89 indicate the existence of a reciprocal and positive relationship between long-term trends in aggregate public opinion and the Court's collective decisions. The Court's ideological composition changes in response to previous shifts in the partisan and ideological orientation of the president and Congress. The Court also responds to public opinion at the margins even in the absence of membership change. Since 1981, the relationship has vanished or turned negative in direction. The Court's ideological balance has been upset by an unbroken string of conservative-to-moderate appointments, thereby undermining the dynamics that promote judicial responsiveness and raising questions about the majoritarianism of the contemporary and future Court.

Suggested Citation

  • Mishler, William & Sheehan, Reginald S., 1993. "The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions," American Political Science Review, Cambridge University Press, vol. 87(1), pages 87-101, March.
    • Handle: RePEc:cup:apsrev:v:87:y:1993:i:01:p:87-101_09
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    Cited by:

    1. Christopher J Williams & Shaun Bevan, 2019. "The effect of public attitudes toward the European Union on European Commission policy activity," European Union Politics, , vol. 20(4), pages 608-628, December.
    2. Stefanie A. Lindquist & Pamela C. Corley, 2011. "The Multiple-Stage Process of Judicial Review: Facial and As-Applied Constitutional Challenges to Legislation before the U.S. Supreme Court," The Journal of Legal Studies, University of Chicago Press, vol. 40(2), pages 467-502.
    3. Buckler, Kevin & Cullen, Francis T. & Unnever, James D., 2007. "Citizen assessment of local criminal courts: Does fairness matter?," Journal of Criminal Justice, Elsevier, vol. 35(5), pages 524-536.
    4. Jaroslaw Kantorowicz, 2014. "Judges as Fiscal Activists: Can Constitutional Review Shape Public Finance?," DANUBE: Law and Economics Review, European Association Comenius - EACO, issue 2, pages 79-104, June.
    5. Tom S. Clark, 2009. "The Separation of Powers, Court Curbing, and Judicial Legitimacy," American Journal of Political Science, John Wiley & Sons, vol. 53(4), pages 971-989, October.
    6. James R. Rogers & Joseph Daniel Ura, 2020. "A majoritarian basis for judicial countermajoritarianism," Journal of Theoretical Politics, , vol. 32(3), pages 435-459, July.
    7. Sean P. O'brien, 1996. "Foreign Policy Crises and the Resort to Terrorism," Journal of Conflict Resolution, Peace Science Society (International), vol. 40(2), pages 320-335, June.
    8. Menachem Hofnung & Keren Weinshall Margel, 2010. "Judicial Setbacks, Material Gains: Terror Litigation at the Israeli High Court of Justice," Journal of Empirical Legal Studies, John Wiley & Sons, vol. 7(4), pages 664-692, December.

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