October 04, 2010
Will The Supreme Court Be Following Popular Opinion This Term?
Posted by David Zaring

Dalia Lithwick and Barry Friedman suggest no in this piece, and Matt Bodie and Orin Kerr disagree.  It's not an original insight to me, but I think that part of what motivates these sorts of pieces is a disconnect with those with realist inclinations, who believe that the Supreme Court does in fact follow popular opinion, and decisions like Citizen's United, which Lithwick and Friedman see as terrible, and which polls extremely badly, but which nonetheless may make a big difference in the way elections are financed.  There's lots of these sorts of decisions, of course, and they're always a problem for realist jurisprudence projects (which, to be sure, have plenty of other advantages).  Bush v. Gore, the flag-burning case, all those beat-downs of the government's anti-terrorism policies, and as far as I can tell, there's not a Court observer out there that thinks that it's impossible that it will find a right to gay marriage pretty soon, even though if you looked at how it polled, and you thought that that was what mattered, you wouldn't worry.

Anyway, other than CU, which was the subject of an interesting conference at Wharton on Friday, with the academics you might expect, along with activist investors and Washington NGOs, none of these cases are business matters.  Where, I suspect, the Supreme Court could make almost any decision it liked without worry about polling.  Though maybe there are other constraints that would pause the Court before working some serious forfeitures.

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