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!