Legislators in Robes

George Washington Law Professors David Fontana and Donald Braman ran a survey experiment on what happens to public support for the Supreme Court when it makes a controversial decision. They will publish the full results of their study later this spring in the Columbia Law Review , but they previewed their findings in the February 2 issue of The New Republic (subscription required).

In Fontana and Braman’s experiment, the polling firm they hired read respondents made-up stories about the Court or, alternatively, Congress making a controversial decision (on gay rights, gun-owner rights, etc.). The two law professors then tested the hypothesis that voters disliked (unelected) justicies making important policy decisions relative to (elected) legislators. What they found in their experimental study is that liberal voters like a political institution – whether Congress or the Court – when that institution makes liberal policy. And conservative voters like a political institution when that institution makes conservative policy.

I don’t think that this initial result is quite as surprising as Fontana and Braman want to style it. Over the years of teaching constitutional law to undergraduate students, I’ve observed that my conservative students like “judicial activism” (i.e., judges to making policy decisions) when courts make conservative policy (e.g., protecting economic choices for government legislation) and my liberal students like judicial activism when they make liberal policy (e.g. protecting abortion from government legislation).

Fontana and Braman provide some systematic evidence for my casual observations.

More interestingly, Fontana and Braman push further by comparing the reactions of voters to a Court decision to the reaction of voters to a congressional decision. They find little difference in voter reactions on either side of the ideological spectrum to which political institution made the decision – unelected judges or elected legislators.

This is an interesting result, not least because it is in tension with some of the experimental results from NSF-funded work by myself and my colleague, Joe Ura, on the interplay of courts and legislatures in majoritarian political systems

But setting aside the entrancing promise of a scholarly squabble, the political conclusion drawn by Fontana and Braman based on their study is of broader-than-academic interest: “This provides us with valuable insight into how our democracy works. But it provides a particularly significant lesson for liberals: Perhaps they have become too fearful of using the Court to advance their goals. In the next few years, many of the great issues of our lifetime will come before the Court—immigration, gay marriage, free speech—and liberals should not be afraid to vigorously press their causes.”

James R. Rogers is associate professor and department head in the Department of Political Science at Texas A&M University.