Tuesday, June 26, 2012

Public opinion, expert opinion, and judicial opinions

In an excellent post, Mr. Gillette raises the topic of whether the Supreme Court should be swayed by public opinion. He makes a convincing case that it shouldn't be.

But is it?

I was pondering this question just yesterday, after reading a blog post by Prof. Richard Pildes that I linked to within my post on the Supreme Court's decision in the Montana case. The whole post is worth a read, but here's a substantial excerpt:
In holding Montana’s ban on corporate electioneering unconstitutional today, the Supreme Court stuck to its guns about Citizens United and put the lie to shallow, but frequently repeated, theories about how much public opinion constrains the Court. According to these theories, the Court’s decisions do not and will not stray far from “mainstream public opinion” because political institutions or “the public” will punish the Court if its decisions do so. ...
In recent years, the biggest embarrassment to these theories — which I have criticized in depth in my academic writing — has been the Court’s extremely well known, controversial, and greatly unpopular decision in the Citizens United case. ... So how do the theorists who insist the Court is strongly constrained by “public opinion” explain the decision? 
They cannot conclude that the majority of the Court has strong constitutional or even ideological convictions (whether right or wrong) that corporate political speech is just as entitled to First Amendment protection as other political speech. After all, to conclude that these Court commentators would have to accept that the Court’s decisions in big cases rest on something other than guesses about where “mainstream public opinion” lies. So instead, these Court commentators have to assert that the otherwise savvy Court just made a massively mistaken miscalculation when it decided Citizens United. Thus, my colleague Barry Friedman and his co-author, Dahlia Lithwick – two of the biggest proponents of the view that Court decisions will not stray far from “public opinion” – assert that no one could have known how negative the reaction to Citizens United would turn out to be. As they put it in a recent Slate piece: “[The Justices] could not have anticipated the strength of the negative public reaction to the Citizens United decision on campaign finance reform. . . . Who knew the public was so enamored of McCain-Feingold? The answer is no one—until the court showed what life without campaign finance regulations would look like.” In other words, had the Court realized what the reaction to the decision would have been, the case would have come out the other way. 
* * * 
But today’s Montana decision means we no longer have to speculate about such matters. Because if the Court made a mistake and simply miscalculated how the public would react to Citizens United, the Montana case presented the perfect opportunity, just two years later, for the Court to “correct” its mistake. Now in a position to fully appreciate “the strength of the negative public reaction” to the original decision, the Court nonetheless not only reaffirmed that decision but doubled down on it by making clear that it would tolerate no exceptions to Citizens United. That outcome comes as no surprise to those of us who believe Citizens United reflected powerfully held philosophical and constitutional convictions, whether we agree with those convictions or not. But it should put the final nail in the coffin of theories that assert the Court could have decided Citizens United only “by mistake” and, more generally, put to rest the view that Court decisions are destined to reflect “mainstream public opinion,” rather than sometimes standing forcefully against such opinion in the name of powerfully held philosophical and legal convictions. 
This is pretty convincing stuff. But I actually think we can square the unpopular Citizens United decision (and the Court's refusal to quickly back down yesterday) with the Friedman public-consensus theory.

First, Citizens United is supposedly unpopular, but when you take it apart most of the propositions it stands for are already hoary principles of constitutional law. For example, as we've discussed, the ideas that money is speech, and that corporations are entitled to some constitutional rights, were not established by Citizens United—they were simply applied in a controversial manner. Yet these are the ideas the opponents of Citizens United emphasize in their rallying cries. Thus, the Court can probably safely ignore the backlash against Citizens United, a single case, because the underlying doctrines are well established and not really under attack. 

Second, I think reasonable people are very suspicious about the public opinion polls that claim to reflect a broad based opinion about particular cases or legal doctrines. In reality, people just don't know, because they just don't care, about the details of these issues. So it's rather impossible to say that the public has strongly held opinions about the Citizens United case itself. Ask a random person what the holding of Citizens United is, and your chances of getting a correct answer are infinitesimal. Ask a random lawyer and your chances aren't much better. So when people are asked whether they approve of Citizens United, or even the principle of campaign restrictions on corporations, what you're actually finding out—and all you're finding out—is whose spin is winning. Since it is pretty easy to demonize faceless corporations, the unpopularity of Citizens United is not surprising. But though the case may be broadly unpopular, I doubt very much that it's deeply unpopular. So even if the Court were swayed by public opinion in individual cases, I think the correct judgment on Citizens United would be that there's no particularly strong public opinion one way or the other.

A similar phenomenon is at work with the individual mandate, which is supposedly unpopular. Some people argue that its unpopularity makes it easier for the court to strike down. Maybe so. But, again, people actually don't care. And they really don't know. A poll question about the individual mandate will be interpreted by most rational people as, "Do you like government telling you what to do?" Predictably (and thanks be to God) most people say no. If you walk people through it, and explain that the individual mandate is necessary to provide for the community rating and guaranteed issue aspects of Obamacare—provisions that are "popular" because a rational person interprets questions about them as, "Do you like free stuff?"—I suspect you'll end up with a 50-50 split, right along the familiar partisan divide.

The point is that no sane person takes these opinion polls at face value. To the extent that public opinion does affect judicial opinions, it's a much more subtle process—and probably plays out at the doctrinal level over decades.

I was going to talk about expert opinions and judicial opinions, but this post is already too long. So you'll just have to wait for my stirring insights on that topic!


  1. Some interesting thoughts, Good post.

    Question: if money is speech (one of those “hoary principles of constitutional law”) then why is bribery illegal? Should the Court invalidate it’s criminalization?

    One should be suspicious of individual opinion polls, but if numerous polls point in the same direction, then suspicion begins to look more like prejudice or dogged determination to be blind to truth. Certainly one reason to doubt polls is that they often ask about support, but not about how important one’s opinion is. It may be that a majority oppose the individual mandate, but how many of THOSE also oppose going back to the preexisting state? How many would accept the individual mandate as better than nothing? Etc. But these concerns point not to the unreliability of polls as much as their incompleteness. When the weight of data points toward unpopularity, the Court must at least acknowledge the problem. Defying public opinion is sometimes heroic, it is also a common attribute in tyrants. How does the Court distinguish which it is engaging in? How do I tell? Or anyone else?

    In the situation of Citizens United and the Montana case, the public perception of political corruption is a central concern; one need not consult polls to know that the perception of corruption is pervasive. Nor need one be a political theorist to see that this perception is a threat to democracy itself. In this situation, it seems a rejection of public opinion is similar to rejecting unwanted scientific evidence, putting legal formalism ahead of the very purpose for which law exists. Willful disregard of facts is not a behavior that merits any respect for the Court.

  2. Thanks Sean.

    Of course, "money is speech" is a short-hand metaphor for what the Supreme Court has actually held since at least 1976—which is that restrictions on spending money to amplify a political message are law that abridge the freedom of speech. The contrary position would be that only actually talking is speech, because every other way of spreading a message costs money. So the answer to your question about bribery is that the money there isn't being used to spread or amplify a political message—it's being used to get a favor (or whatever).

    Moreover, this principle (that spending money to amplify political speech is protected by the First Amendment) is not absolute. Since 1976 the Supreme Court has held that restrictions on direct contributions to candidates are constitutional because they are narrowly tailored to address a compelling governmental interest—reducing corruption or the at least the appearance of corruption. So even if bribery could be characterized as the spending of money to spread a political message, it would clearly be constitutional to outlaw it in order to further the compelling governmental interest in reducing actual corruption.

    You do isolate the key controversy about Citizens United's holding: do unlimited independent corporate expenditures on political messages create the appearance of corruption, such that the government has a compelling interest in stifling that speech? Kennedy said they don't, as a matter of law. You may be right that a large majority of people think that this kind of unrestricted speech creates the appearance of corruption, but I think something more objective than an opinion poll should be required. Because a main purpose of the Bill of Rights was to protect against the tyranny of the majority. So judging the constitutionality of a law based on what a majority of people think it "appears" to, and based on the (corporate) identity of the speaker seems highly suspect to me.

    You ask how we can distinguish the court's counter-majoritarian actions from the actions of tyrants. I would say this: the Court is narrowly construing exceptions to the First Amendment. In other words, it is broadly construing the reach of the First Amendment. Maybe more speech is bad; but I think it's easy to distinguish decisions allowing for more speech tyrannical.

    Finally, something about public opinion often gets overlooked. And that is that public opinion has its own way of making law—even constitutional law. If a Supreme Court's formalism is too unpopular, people can directly change the constitution through amendment. I'd frankly rather see that than encourage the Court to bend itself to what it perceives public opinion to be on highly technical matters of constitutional law.


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