Edited by Jacy Reese Anthis. Many thanks to Jamie Spurgeon and Kevin Schneider for reviewing and providing feedback.
Whether the Supreme Court of the United States drives or is driven by social change is an important strategic question for social movements that seek to implement systemic change in the United States. However, a thorough summary of empirical research on this question is lacking. This report summarizes the results of the most important empirical contributions to this debate. The results of aggregating 121 research items based on the strength of evidence suggest that Supreme Court decision-making is influenced by public opinion and by the activities of interest groups. Supreme Court rulings that are favorable to social movements’ goals can encourage positive changes in public attitudes, behavior, and policy, though these effects are sometimes negligible and the evidence is slightly weaker than that for the influence of public opinion on Supreme Court decisions. Additionally, Supreme Court rulings may encourage substantial backlash, so it may be counterproductive for social movements to actively pursue radical legal change if they are not prepared to respond to these threats.
Political scientists, legal scholars, historians, and sociologists have sought to understand whether the Supreme Court of the United States is a driver or driven by social change. Although the question has been considered for centuries,[1] relevant empirical academic research has only begun more recently, arguably since Dahl (1957).[2] Work by Ammori (2006) at the Information Society Project provides a synthesis of this literature focused on free speech and argues that there is some association between Supreme Court decisions and public opinion, but there is both more recent data available since 2006 and a gap in weighing the evidence of effects in both directions.[3] This report addresses that gap, seeking to provide a summary that is understandable and actionable for advocates in social movements, especially the contemporary farmed animal movement.
Past work done by Sentience Institute has argued that the farmed animal movement needs to redistribute resources from “tactics that work by convincing individuals one-by-one to change their consumption” to “tactics that focus on changing institutions: governments, companies, nonprofits, and society as a whole.”[4] Influencing the decision-making of the courts, of which the Supreme Court is the highest and most influential in the US, is a promising institutional tactic.[5] Better understanding the effects of Supreme Court decisions and the influences upon those decisions will help to evaluate the extent to which the farmed animal movement should prioritize this tactic.
Sentience Institute’s historical research currently focuses on social movements that are most comparable to the farmed animal movement and on technology adoptions that present the most useful comparisons to animal-free food technology.[6] Although evidence from other, less comparable social movements and technologies usually provides weaker evidence for the foundational questions in effective animal advocacy, some issues of relevance to these questions have already been researched thoroughly across multiple historical contexts; summarizing this research can provide a greater breadth of evidence on specific questions than can be provided by a small number of case studies. The question of whether the Supreme Court drives or is driven by social change is one such topic. This research provides evidence for the questions of whether animal advocates should focus on changing individuals or changing institutions and social norms, influencers or the general population, and incremental institutional reform or radical, single-step institutional reform.[7]
The findings of this literature review are organized by the questions listed below.[8] The wording and focus of the questions was informed by the content of the reviewed research and by the need for clarity for advocates who might use this report to drive social change. The phrasing of the questions here differs from the wording of the theories laid out and evaluated in the original research literature, to improve clarity and cohesion.[9]
Influences on Supreme Court decision-making (hereafter abbreviated to “I”):
Modifiers of the influences on Supreme Court decisions (“IM”):
Effects of Supreme Court decisions (“E”):
Modifiers of the effects of Supreme Court decisions (“EM”):
I inputted search terms into Google Scholar.[12] I read through the abstract (or equivalent) of all results on the first two pages of search results and decided whether to include the item or not in the “Findings tables” spreadsheet (54 of the 121 included items were identified this way). In the “Excluded items” tab of the same spreadsheet, I recorded 86 items that I decided not to include and my reasons for excluding them. I also looked through pages 3 to 10 of the Google Scholar results and selected research items that seemed especially useful for further review (26 of the 121 included items were identified this way). I looked up the citations of some of the most important research items, selecting items for review (30 of the 121 included items were identified this way). I sometimes reviewed items cited by other reviewed items that seemed especially useful (9 of the 121 included items were identified this way).
The search terms I used were:
I used the following criteria to decide which items to include:
I did not exclude all items that failed to meet some of the above criteria, if they seemed to perform especially well on others.
For non-systematic selections (items not identified from the first two pages of results for pre-planned search terms), I skipped over items that I believed had been clearly summarized by items that I had already reviewed, items that overlapped with, made similar arguments, or used similar data to other items that I had already reviewed, and items that seemed less obviously relevant from their title.
I assigned each research item a score for each question that it provided evidence for. The possible scores range from -5 to +5, where +5 means that if this was the only piece of evidence available, I would be 100% confident that the answer is “yes” for the average highly salient, politically polarized issue.[13] By comparison, +1 means 60% likely, -1 means 40% likely, and -5 means 0% likely. For each research question, the scores from relevant research items were added together to create the final scores listed below.
Whether it is treated as a dependent or independent variable, much of the research in this literature review uses some measure of public opinion or behavior. For example, in 24 reviewed research items, a unidimensional measure of left-right ideological “public mood” is used. In other research, measures that are specific to the issue being analyzed are used. For example, 18 reviewed research items used measures of public support for same-sex marriage or other issues specific to gay rights. Included research that did not use a measure of public opinion or behavior was categorized by its topic area (gay rights, civil rights, etc.) or as “Other / all.” Reasonable people might place different weight on findings from research that focuses on these differing outcome measures and topic areas, so the results are listed separately in the “Findings Tables” spreadsheet.
Results are also listed separately by the research methods used. The “experimental” category includes research where students or online participants were randomly assigned to different intervention groups or to control conditions. The “observational” category includes research that made use of various statistical analyses of historical data from real-world contexts, such as results from public opinion polling before and after particular Supreme Court rulings. Studies that test for opinion change around Supreme Court rulings but also include experimenter manipulations are also included in the “observational” category. The “other” category covers all other research formats, including qualitative research. Some items in this category compile quantitative data, but differ from the research in the “observational” category in that statistical analyses are not usually undertaken.
To give a sense of whether the research tends to provide consistent evidence on particular questions, the number of relevant items is listed and can be compared with the overall score. For the summary of the main results, a total of the number of “substantial items” (research items that have a score of +0.75 or more or -0.75 or less for that research question) is also included.[14]
The inclusion of research that was identified through non-systematic methods introduces additional risk of selection bias. As an informal sensitivity analysis, I separately summarize the results for the systematic searches only, excluding any research that I identified non-systematically.
Considering all the available evidence and my awareness of the limitations of the research, I present my overall estimates of the likelihood that the answer to each research question will be “yes” for the average highly salient, politically polarized issue and, as a concrete application to Sentience Institute’s main research focus, that the answer will be “yes” for the average farmed animal issue.[15] These estimates incorporate the considerations in the “Limitations” section and in the appendix, as well as, to a smaller extent, evidence from Sentience Institute’s case studies on the US anti-abortion movement and the US anti-death penalty movement.[16] Unlike the scores for individual research items, these estimates incorporate a judgement of the intuitive likelihood of the answer being “yes.” These are estimates of the probability that the effect or modifier would be substantial enough that it would show up in well-designed statistical analyses if exogenous factors were sufficiently controlled for. That is, the estimates do not reflect the size of the effect, only the likelihood that there would be at least some detectable effect. Of course, these estimates involve subjective judgement calls and the use of precise numbers does not indicate confidence in the accuracy of the estimates.
Full tables of results of the scoring system and the overall estimates for the research questions can be found in the “Findings tables” spreadsheet.
The public’s conservatism or liberalism is closely correlated with the conservatism or liberalism of the Supreme Court’s decision-making.[17] It seems likely that if public opinion on a specific issue substantially shifts in one direction, Supreme Court decision-making will eventually shift in the same direction, especially if the issue is highly salient.[18] However, the numerous possible causes of this relationship (I1, I2, E1, or exogenous social trends) and the limitations of the available evidence[19] mean that it remains possible (if unlikely) that changes in public opinion will have no effect on the decisions of the Supreme Court in cases of interest to social movements. This means that public-facing actions by social movements may not necessarily have much of an effect on Supreme Court decision-making, even if they successfully alter public opinion, but public opinion can still be used as an indicator of the tractability of specific litigation strategies. Several research items reviewed here highlight other factors that affect judicial decision-making;[20] even if these factors are beyond the influence of thoughtful actors, the findings from this research can be used to evaluate the tractability of different litigation campaigns.
Though it seems likely that public opinion has an effect on the Supreme Court’s decision-making,[21] several included items also find evidence that the peculiarities of elite preferences have effects on the Court’s decision-making.[22] Most research does not provide clear evidence on the relative importance of public opinion and elite opinion.[23]
There is evidence that active litigation and other direct involvement can affect the outcome of Supreme Court cases in the intended direction,[24] though perhaps by less than some advocates hope or expect. For example, one paper found evidence that each of the first few amicus curiae briefs filed in support of the petitioner in a Supreme Court case is associated with a 1.8% higher chance of success. Another paper found that petitioner win rates were only 0.69% higher when petitioners were supported by amicus briefs than when there were no supporting or opposing amicus briefs. Both papers found that amicus curiae briefs supporting the respondent were associated with larger changes in the probability of petitioner wins.[25] For comparison, a paper from 2004 estimated that the price of hiring a top attorney to prepare a single amicus curiae brief was around $50,000.[26] Two papers also found evidence that the submission of amicus curiae briefs increases the likelihood that Congress reverses a Supreme Court ruling, or the speed with which it does so.[27] This suggests that advocates intending to maximize the chances of success of a particular legal ruling could inadvertently undermine the stability of that ruling by submitting amicus curiae briefs during the proceedings. However, given the limitations of this evidence,[28] the infrequency with which Congress overrides Supreme Court decisions,[29] and the potentially important effects of Supreme Court decisions if they are not reversed (see the section below), the submission of amicus curiae briefs may still be worth the associated risks and costs.
Table 1: Overall estimates for the influences on Supreme Court decision-making and their modifiers.
Estimated likelihood for the average highly salient, politically polarized issue | Estimated likelihood for the average farmed animal issue | |
I1: Does public opinion directly positively influence the Supreme Court’s decisions? | 70% | 65% |
I2: Does public opinion indirectly positively influence the Supreme Court’s decisions by electing presidents and Senators who appoint justices who then vote in line with public opinion? | 70% | 57.5% |
I3: Does interest group involvement, such as via amicus curiae briefs, influence the outcome of Supreme Court decisions in the direction that they intend it to? | 80% | 80% |
IM: Does higher pre-decision issue salience increase the effects of public opinion on the Supreme Court’s decisions? | 42.5% | 42.5% |
Table 2: Summary of the results for the influences on Supreme Court decision-making and their modifiers.
All results | Systematic results only | |||||
Score | Number of relevant items | Number of substantial items | Score | Number of relevant items | Number of substantial items | |
I1 | 5.25 | 26 | 9 | 7.25** | 13 | 7 |
I2 | 15.75 | 32 | 9 | 13.75** | 16 | 6 |
I3 | 5.5 | 14 | 5 | 1.5* | 6 | 0 |
IM | -1.25 | 8 | 2 | -2.5* | 3 | 2 |
** Indicates that the score for the systematic results is similar to the score for the overall results (neither score is equal to or more than double the score of the other), which include items identified through both systematic and non-systematic methods.
* Indicates that the systematic results and overall results share the same sign (that is, are on the same side of zero) but that the score of one of these groups is at least double the score of the other.
Where there is no asterisk, the scores for the systematic results and overall results do not share the same sign.
“Substantial items” are research items that have a score of 0.75 or more or -0.75 or less.
The reviewed literature therefore finds evidence that advocates can influence the outcome of Supreme Court cases by directly participating in the cases, through involvement and advocacy in the elite institutions and cultures that influence the justices, and through tactics that modify public opinion. The size of each of these effects is not clear enough to enable a rigorous evaluation of the cost-effectiveness of these different methods for achieving favorable Supreme Court rulings. If I had to guess, I would expect that advocacy efforts most directly targeted at Supreme Court cases, such as direct litigation and the submission of amicus curiae briefs, would be the most cost-effective methods of influencing any individual Supreme Court case. However, involvement and advocacy targeted at the elite institutions that influence the Supreme Court or at the wider public could have indirect effects that make them more cost-effective tactics for the overall goals of a social movement. For the advocacy goal of legal recognition of nonhuman animal rights, a focus on state courts may be more tractable, though this literature review has not thoroughly compared advocacy at the state and federal levels.[30]
The most obvious mechanisms through which the Supreme Court can effect change is by ruling that previously legal behaviors or pieces of legislation are illegal, or the reverse: ruling that previously illegal behaviors or pieces of legislation are legal. Alternatively, the Court may interpret existing legislation especially narrowly or broadly, which can have an effect similar to the creation of new policy.[31] Assuming that the behavioral and policy effects of such rulings are likely to be issue-specific and that evaluating them thoroughly would be too time-consuming, this literature review has not included an evaluation of the effectiveness of these mechanisms as one of its main research questions.[32] Nevertheless, some of the included research items, such as Gerald Rosenberg’s The Hollow Hope (2008), contribute to debates on these issues for particular social movements.[33] It is also possible that decisions by state courts could be more impactful than decisions by the Supreme Court.[34]
Some of the included research items debate whether the Supreme Court should, or should not, be considered to be “activist,” a term which implies that the Supreme Court has gone beyond its proper role in interpreting the Constitution and has made policy decisions itself, perhaps at odds with the preferences of Congress and the public.[35] Some of these items show that the Court can become more or less activist — and therefore more or less capable of driving behavioral and policy change beyond what might have been implemented through other mechanisms — at different times.[36] Though there is evidence that the Court is becoming more politically polarized,[37] one paper found no clear difference in overall levels of “activism” between liberal and conservative judges.[38] Overall, the literature is unclear what exact criteria the Court would have to meet to be an “activist” and whether it has met such criteria.
The reviewed research provides evidence that Supreme Court decisions tend to positively influence public opinion.[39]
The effect of Supreme Court rulings on public opinion seems small enough that attitudinal change is not likely to often be the most important effect. For example, Michael Zilis (2015) found a significant change in the average approval of the Affordable Care Act of around 0.025 on a 6-point scale when comparing panel data from before and after the Supreme Court ruled that the Act was constitutional.[40] Although the effects seem to often be small and positive, this is not always the case. For example, polls conducted shortly before and after the Lawrence v. Texas (2003) ruling, which declared that laws prohibiting gay sex were unconstitutional, suggest that the percentage of Gallup poll respondents supporting legalization of gay sex fell by around 10%.[41]
Table 3: Overall estimates for the effects of Supreme Court decisions.
Estimated likelihood for the average highly salient, politically polarized issue | Estimated likelihood for the average farmed animal issue | |
E1: Do Supreme Court decisions positively influence public opinion? | 62.5% | 70% |
E2: Do Supreme Court decisions polarize public opinion? | 45% | 45% |
E3: Do Supreme Court decisions cause a social movement or legislative backlash? | 55% | 40% |
Table 4: Summary of the results for the effects of Supreme Court decisions.
All results | Systematic results only | |||||
Score | Number of relevant items | Number of substantial items | Score | Number of relevant items | Number of substantial items | |
E1 | 9.5 | 31 | 18 | 3.25* | 11 | 6 |
E2 | -1.25 | 17 | 11 | 0.5 | 5 | 4 |
E3 | 2.5 | 15 | 7 | 0.75* | 4 | 2 |
** Indicates that the score for the systematic results is similar to the score for the overall results (neither score is equal to or more than double the score of the other), which include items identified through both systematic and non-systematic methods.
* Indicates that the systematic results and overall results share the same sign (that is, are on the same side of zero) but that the score of one of these groups is at least double the score of the other.
Where there is no asterisk, the scores for the systematic results and overall results do not share the same sign.
“Substantial items” are research items that have a score of 0.75 or more or -0.75 or less.
This literature review found evidence that higher pre-decision awareness of an issue is likely to decrease the effect of a Supreme Court decision on public opinion, that higher awareness of the decision is likely to increase the effects of a Supreme Court decision on public opinion, that unanimity or near unanimity among the justices’ votes in Supreme Court decisions is likely to maximize the positive effects of a Supreme Court decision on public opinion or minimize its negative effects, and that the framing in the media, by legislators, and by relevant social movement actors is likely to modify the effects of a Supreme Court decision on public opinion. It is possible, though less likely, that higher pre-decision public opinion may increase the positive effects or decrease the negative effects of a Supreme Court decision on public opinion and that earlier landmark Supreme Court decisions on an issue may have larger effects on public opinion than subsequent Supreme Court decisions on the same issue.[42]
Table 5: Overall estimates for the modifiers of the effects of Supreme Court decisions.
Estimated likelihood for the average highly salient, politically polarized issue | Estimated likelihood for the average farmed animal issue | |
EM1: Does pre-decision public opinion that is more closely aligned with a Supreme Court decision increase the positive effects or decrease the negative effects of that Supreme Court decision on public opinion? | 47.5% | 47.5% |
EM2: Assuming that Supreme Court rulings at least sometimes cause a social movement or legislative backlash, does higher pre-decision public opinion decrease this backlash? | 82.5% | 82.5% |
EM3: Does higher pre-decision issue salience decrease the effects of a Supreme Court decision on public opinion? | 80% | 80% |
EM4: Does higher awareness of the decision itself increase its effects? | 85% | 85% |
EM5: Do earlier landmark Supreme Court decisions on an issue have larger effects than subsequent Supreme Court decisions on the same issue? | 30% | 30% |
EM6: Does unanimity or near unanimity among the justices’ votes in Supreme Court decisions maximize the positive effects of a Supreme Court decision or minimize its negative effects? | 80% | 80% |
EM7: Does interest group involvement, such as via amicus curiae briefs, increase the likelihood, speed, or size of social movement or legislative backlash? | 45% | 45% |
EM8: Does the framing of debate in the media, by legislators, and by relevant social movement actors modify the effects of a Supreme Court decision on public opinion? | 75% | 75% |
Table 6: Summary of the results for the modifiers of the effects of Supreme Court decisions.
All results | Systematic results only | |||||
Score | Number of relevant items | Number of substantial items | Score | Number of relevant items | Number of substantial items | |
EM1 | 0 | 5 | 4 | 1.25* | 2 | 2 |
EM2 | 5.5 | 4 | 2 | 0 | 0 | 0 |
EM3 | 2.75 | 6 | 2 | 0.5* | 1 | 0 |
EM4 | 4.75 | 13 | 7 | 1* | 2 | 1 |
EM5 | 1 | 5 | 4 | -0.75 | 1 | 1 |
EM6 | 3.75 | 6 | 5 | 0 | 0 | 0 |
EM7 | 2 | 2 | 0 | 0 | 0 | 0 |
EM8 | 1.75 | 2 | 2 | 0 | 0 | 0 |
** Indicates that the score for the systematic results is similar to the score for the overall results (neither score is equal to or more than double the score of the other), which include items identified through both systematic and non-systematic methods.
* Indicates that the systematic results and overall results share the same sign (that is, are on the same side of zero) but that the score of one of these groups is at least double the score of the other.
Where there is no asterisk, the scores for the systematic results and overall results do not share the same sign.
“Substantial items” are research items that have a score of 0.75 or more or -0.75 or less.
Qualitative evidence of backlash against Supreme Court rulings on same-sex marriage and the Brown v. Board of Education ruling on racial desegregation in education[43] is tempered slightly by criticisms that the backlash was created by circumstances rather than by litigation or Court rulings[44] and by research which shows that legislative reversals of Supreme Court decisions are infrequent, occurring in perhaps fewer than 5% of cases.[45] As well as the evidence included in this literature review, there is evidence of backlash against the Roe v. Wade ruling on abortion and the Furman v. Georgia and Gregg v. Georgia rulings on the death penalty.[46] Taken together, this research suggests that though social movement or legislative backlash may sometimes occur and may be substantial, this only infrequently results in direct reversals of Supreme Court rulings. The reviewed literature also provides evidence that unanimous Supreme Court rulings and higher pre-decision public opinion decrease the likelihood or size of backlash, but that the number of amicus briefs submitted during a case and higher public awareness of the decision itself have the opposite effect.[47]
There is some historical evidence that just as a Supreme Court ruling that supports a social movement’s goals may encourage mobilization by the movement’s opponents, a Supreme Court ruling that challenges a movement’s goals may galvanize the movement into action.[48] Similarly, one paper found evidence that interest groups affected by salient Supreme Court rulings increase their activity in response to them, whatever their position on the decision.[49] Social movements should seek to use major Supreme Court rulings to mobilize potential supporters, regardless of whether the direct effects of the ruling are helpful or harmful to their cause.[50]
The reviewed research has inconsistent results for the question of whether Supreme Court decisions polarize public opinion. Although several included research items found no evidence of polarization, it remains possible that at least some Supreme Court rulings will have this effect.[51] One paper suggests that earlier landmark Supreme Court decisions on an issue are more polarizing than subsequent Supreme Court decisions on the same issue, though the evidence for this claim is weak.[52]
Accepting that there is at least some risk of polarization or backlash from favorable judicial rulings, then litigation efforts can be seen as a method of disrupting the status quo, rather than as a foolproof method to secure progress. Such disruption could create the circumstances that enables substantial progress, or it could enable opponents to enact preventative legislation. Given this uncertainty, it seems preferable that radical legal change is not sought unless the movement is strong enough to take advantage of any disruption and to respond to any legislative threats that arise.
Another reason to delay radical legal change is that more favorable pre-decision attitudes may maximize the positive effects of a Supreme Court decision on public opinion and reduce the risk of backlash,[53] so it could be preferable for a social movement to wait until the public is more supportive of its goals. On the other hand, if one believes that other advocacy efforts tend to increase issue salience without encouraging substantial favorable changes in public attitudes (or, indeed, that the public is becoming less supportive, rather than more supportive, of the movement’s goals), then this is a weak reason to prefer radical legal change to occur as soon as possible, since evidence included in this literature review suggests that high prior knowledge of an issue decreases the effect on public opinion.[54]
Court cases sometimes temporarily increase issue salience and sometimes attract longer-term increases in media attention to an issue.[55] In 1946-95, 914 of 6,114 Supreme Court cases (15%) were listed on the front page of The New York Times.[56] Indeed, though not reaching the Supreme Court, the work of the Nonhuman Rights Project has already been discussed in a story on the front page of The New York Times Magazine and was the subject of an HBO documentary.[57]
Several reviewed articles accept the arguments of legal scholars Gerald N. Rosenberg and Michael Klarman[58] that social movement litigation strategies may fail to achieve their intended goals (that is, supportive legal rulings which successfully encourage positive behavioral or attitudinal change) and may encourage backlash, but argue that litigation strategies can nevertheless have useful indirect effects. For example, sociologists David S. Meyer and Suzanne Staggenborg argue that Supreme Court decisions are unlikely to decisively resolve an issue but may “focus attention on issues and provide impetus for social movement mobilization.” They may also encourage a shift of movement and countermovement conflict to other avenues. For example, Court decisions could encourage a switch to legislation over litigation or vice versa.[59]
Sentience Institute’s case studies of genetically modified foods and nuclear power suggest that advocates can reduce the frequency and impact of criticisms of food technologies by avoiding raising the salience of potential harms of particular concern to the public, such as safety risks of the technologies.[60] Given that Court cases can raise the salience of particular issues, these findings suggest that, if the targets of litigation are chosen poorly, this could be damaging to a social movement’s goals. For example, litigation over same-sex marriage, one of the least popular demands of the gay rights movement, has likely contributed to making that issue central to the gay rights debate, though the overall effect that this has had on the movement’s success is unclear.[61] However, litigation that focuses attention on more widely accepted policy objectives could build support for further reform.[62]
There were few questions where experimental research comprised a substantial proportion of included research (E1, E2, EM3, and EM6). Reviewed experimental research provided no evidence on the social influences on Supreme Court decision-making (I1, I2, and I3), the modifying effect of pre-decision issue salience on public opinion’s effects on the Supreme Court’s decisions (IM), or several of the modifiers of the effects of Supreme Court decisions (EM1, EM2, EM5, EM7, and EM8). This may partly reflect limitations of the search strategy used here.[63]
This may also reflect the inherent limitations of experimental research. Some researchers have argued that experimental results lack external validity.[64] Experimental studies usually measure results immediately after the participants receive an intervention and place the recipient in an artificially sheltered context, with no opportunity to hear the framing and opinions of their preferred media sources or personal connections. Experimental results therefore may not capture the sorts of effects suggested by Franklin and Kosaki (1989), who, seeking to explain their finding that the Roe v. Wade ruling polarized opinion on “discretionary” abortions, posited that, “when the Court rules, initial reactions may be entirely individualistic” but that “environmental inputs” from others in one’s social environment “may change or reinforce both the interpretation of the public decision and the individual’s reactions to it.”[65] Nevertheless, this literature review found that observational research mostly provided evidence against the hypothesis that Supreme Court decisions polarize public opinion (with a total score of -5.25 for E2), whereas experimental research provided stronger evidence for the hypothesis (with a total score of +2.25 for E2).[66] Additionally, one paper directly challenged the findings of Franklin and Kosaki for the Roe v. Wade case upon which they based their comments.[67]
Some questions of interest to this literature review cannot easily be evaluated in observational research. For example, several experiments evaluated the effect of varying whether a policy was recommended by the Supreme Court or by other institutions on agreement with and acceptance of that policy.[68] For other issues, experimental research has helped to understand the causal relationships underlying observable trends. For example, two research items used experimental research to understand the effects of variations in framing.[69] Of course, experimental research can more easily control for confounding factors than observational research can. This has meant, for example, that experimental research has been able to find evidence that unanimous voting among the justices for a ruling has significant effects on public perceptions of that ruling,[70] even though this would be difficult to rigorously evaluate with non-experimental designs.[71]
Assuming that the lower number of reviewed items of experimental research than observational research has not entirely been caused by the limitations of the search strategy used in this review or inherent downsides of experimental research on the topic, experimental methods seem to be undervalued by the scholars researching the issues of interest to this literature review.[72]
Although effective animal advocacy researchers have conducted various surveys,[73] I am not aware of much use of observational research to better understand the impact of important events and changes on animal farming attitudes or animal product consumption.[74] The importance of observational research to understanding whether the Supreme Court drives or is driven by social change (comprising 58 of the total 121 research items included in this literature review) suggests that this research type may have been undervalued in the effective animal advocacy community so far. For example, the effects of major legislative changes, legal changes, public-facing campaigns, and mass protests on attitudes and behavior could all be estimated through surveys with waves shortly before and after.[75]
Some limitations are common to much of the research reviewed here:[76]
As well as reflecting the weaknesses of the included research, this literature review is limited in several other ways:
There seems to be strong evidence of a close connection between public opinion and Supreme Court decision-making. The former likely influences the latter, both directly and indirectly, though the size of each of these effects is unclear and could vary across social issues. In turn, Supreme Court rulings seem likely to encourage public opinion to move towards support for the positions implied by those rulings, though sometimes the opposite may be true, the effects may be small, and the evidence is slightly weaker than that for the influence of public opinion on Supreme Court decisions.
Supreme Court rulings may bring beneficial changes to policy and behavior, though the effects may be limited if the rulings are not well-enforced. Court rulings may polarize opinion and spark mobilization of both the proponents and opponents of change. This suggests that litigation for radical legal change can disrupt the status quo, but social movements should be prepared to respond to any unintended negative consequences. If movements are not yet prepared to deal with legislative backlash, then it may be preferable to delay active efforts to pursue radical legal change. Advocacy that successfully increases public support for particular policy changes could reduce backlash against relevant favorable Supreme Court rulings in terms of public opinion change, counter-mobilization, or hostile legislation.
Research reviewed here suggests that direct involvement in Supreme Court cases, involvement and advocacy in the elite institutions and cultures that influence the justices, and advocacy focused on shifting public opinion can all affect the likelihood of favorable rulings. Some included research also suggests that advocates can use strategic litigation to influence the framing of discussion about outcomes of interest to social movements. This could be used either to shift the Overton window, or to focus attention on a movement’s most tractable incremental policy objectives.
To avoid repetition, common limitations that affect multiple research questions are listed in the “Limitations” section, rather than here. The bullet points below summarize important features (particularly the overall strength of the evidence) of the reviewed research, previous Sentience Institute research, and my own intuitions that have affected the overall estimates. Unreferenced content can be identified through the “Summary information” tab of the “Findings tables” spreadsheet, or by sorting the “Search results” tab by the relevant column and looking at the research items that were scored for that research question.
I1: Does public opinion directly positively influence the Supreme Court’s decisions?
I2: Does public opinion indirectly positively influence the Supreme Court’s decisions by electing presidents and Senators who appoint justices who then vote in line with public opinion?
I3: Does interest group involvement, such as via amicus curiae briefs, influence the outcome of Supreme Court decisions in the direction that they intend it to?
IM: Does higher pre-decision issue salience increase the effects of public opinion on the Supreme Court’s decisions?
E1: Do Supreme Court decisions positively influence public opinion?
E2: Do Supreme Court decisions polarize public opinion?
E3: Do Supreme Court decisions cause a social movement or legislative backlash?
EM1: Does pre-decision public opinion that is more closely aligned with a Supreme Court decision increase the positive effects or decrease the negative effects of that Supreme Court decision on public opinion?
EM2: Assuming that Supreme Court rulings at least sometimes cause a social movement or legislative backlash, does higher pre-decision public opinion decrease this backlash?
EM3: Does higher pre-decision issue salience decrease the effects of a Supreme Court decision on public opinion?
EM4: Does higher awareness of the decision itself increase its effects?
EM5: Do earlier landmark Supreme Court decisions on an issue have larger effects than subsequent Supreme Court decisions on the same issue?
EM6: Does unanimity or near unanimity among the justices’ votes in Supreme Court decisions maximize the positive effects of a Supreme Court decision or minimize its negative effects?
EM7: Does interest group involvement, such as via amicus curiae briefs, increase the likelihood, speed, or size of social movement or legislative backlash?
EM8: Does the framing of debate in the media, by legislators, and by relevant social movement actors modify the effects of a Supreme Court decision on public opinion?
Ammori, Marvin, “Public Opinion and Freedom of Speech” (July 14, 2006), https://law.yale.edu/system/files/documents/pdf/Public_Affairs/ISP_PublicOpinion_fos.pdf.
Badger, Tony, “Brown and Backlash,” in Massive Resistance: Southern Opposition to the Second Reconstruction (Oxford: Oxford University Press, 2005), 39-55.
Bailey, Michael A., and Forrest Maltzman, The Constrained Court: Law, Politics, and the Decisions Justices Make (Princeton: Princeton University Press, 2011).
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[1] For example, Elmer Ellis, Mr. Dooley's America: A Life of Finley Peter Dunne (Hamden CT: Archon Books, 1969), 160-2 notes that Mr. Dooley, a fictional bartender in the columns of journalist Finley Peter Dunne between 1893 and 1915, said that “no matter whether th’ constitution follows th’ flag or not, th’ Supreme Court follows th’ iliction [election] returns.”
[2] Robert A. Dahl, “Decision-making in a democracy: The Supreme Court as a national policy-maker,” The Journal of Public Law 6 (1957), 279-95 is often cited as the beginnings of such research, as in William Mishler and Reginald S. Sheehan, “The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions,” American Political Science Review 87, no. 1 (March 1993), 87-8.
[3] Marvin Ammori, “Public Opinion and Freedom of Speech” (July 14, 2006), https://law.yale.edu/sites/default/files/documents/pdf/Public_Affairs/ISP_PublicOpinion_fos.pdf.
[4] Jacy Reese, “3 Big Changes We Need in the Farmed Animal Movement” (June 25, 2018), https://www.sentienceinstitute.org/blog/three-big-changes.
[5] See, for example, “Rights are important for sentient wellbeing” in “Our perspective,” Sentience Institute, accessed September 30, 2019, https://www.sentienceinstitute.org/perspective and Jacy Reese, “The relationship between legal and social change” (July 16, 2016), https://animalcharityevaluators.org/blog/the-relationship-between-legal-and-social-change/.
[6] For more detail on the process that SI uses, see Jamie Harris, “How is SI research different from existing social movement literature and relevant historical works?” (May 17, 2019), https://www.sentienceinstitute.org/blog/how-is-SI-research-different.
[7] See “Summary of Evidence for Foundational Questions in Effective Animal Advocacy,” Sentience Institute, last edited June 21, 2018, https://www.sentienceinstitute.org/foundational-questions-summaries. This last question is related to the listed foundational questions of whether “welfare reforms lead to momentum or complacency for future progress” and whether animal advocates should “focus on ‘animal farming’ or ‘factory farming’ as the institution we oppose.”
[8] The research that I identified in my searches did not neatly match up to the research questions that were implied by my initial hypotheses, although much of it fitted within the broad question of whether the Supreme Court drives or is driven by social change and considered the relationship between Supreme Court decision-making and public opinion, salience, social movement organizations, legislation, or other factors related to the success and stability of social change. Hence, I reorganized and reworded my research questions but the broad topic did not substantially change.
Based on intuition and on findings from the US anti-abortion movement (Jamie Harris, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion) and anti-death penalty movement (Jamie Harris, “Social Movement Lessons from the US Anti-Death Penalty Movement (forthcoming)), I formulated the following hypotheses:
[9] Some of the research items evaluated in this literature review provide hypotheses on multiple research questions simultaneously. For example, the “structural response” model suggests that (controversial) Supreme Court decisions will have no overall effect on public opinion but will polarize different groups. At other times, models of change are subdivided beyond what is useful or necessary for the purposes of this literature review. For example, Thomas R. Marshall, Public Opinion and the Supreme Court (London: Unwin Hyman, 1989), 14-30 lists twelve different models that might explain “linkages between public opinion and Supreme Court policy making.” However, these twelve separate models can be condensed down into “direct” and “indirect” models of public opinion’s influence on the Supreme Court, with little need for further subdivision.
[10] This modifier was added during the write-up stage of this literature review, rather than early in the process. As a result, some relevant contributing information may have been missed from reviewed research items.
[11] Although I did not formally pre-register the methodology for this literature review, I wrote out my planned methodology before beginning my research. I made only minor deviations from my plan. I made the following deviations and no others, that I can recall:
[12] Given the novel methodology used in this report, the first person is used frequently to help clarify where the author of this report (Jamie Harris, researcher at Sentience Institute) has made judgment calls that some readers may disagree with.
For the first search term, I used the same methodology again with the standard Google search engine. For each of the other listed search terms, I first conducted a non-systematic search of Google Scholar, adding the phrase “literature review” to the search term (1 of the 121 included items was identified this way).
[13] In my scoring, I also attempted to ignore, as far as possible, prior theoretical beliefs of heuristics. That is, I treated the default score for a research item as 0, even if, without having conducted this literature review I would estimate the probability that the answer to the question is “yes” as something other than 50%.
As far as possible, to avoid double counting evidence, I scored the research independently of other research findings. For example, if one research item used methods that I found persuasive but that were subsequently critiqued in a second item, I might give the first item a score of +4 and then the second item a score of -2, rather than giving the initial item a score of +2. Relatedly, if two research items contained duplicate information or reached similar conclusions by using similar methods and data, I only scored this information once. This means that some items may appear to the reader to have counterintuitively high scores; this may be because I read that item before other similar items and therefore allocated it several points.
For example, I gave Thomas M. Keck, “Beyond Backlash: Assessing the Impact of Judicial Decisions on LGBT Rights,” Law and Society Review 43, no. 1 (2009), 151-86 a score of 2.75 for E3, even though Keck actually argues against the importance of backlash from the gay rights Supreme Court cases discussed. In contrast, I only gave Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013) a score of 1.5 for E3, even though this book argues more persuasively that backlash was substantial, because I read this book after reading Keck’s article.
A reviewer of this report suggested that undergoing calibration training prior to conducting this review may have been helpful, such as using the application developed by Spencer Greenberg for the Open Philanthropy Project; see Luke Muehlhauser, “New web app for calibration training” (December 14, 2018), https://www.openphilanthropy.org/blog/new-web-app-calibration-training. The author has used this application previously, but did not train specifically for this literature review.
[14] Given that some of the counted research items have scores close to 0 because they only provide indirect evidence for that research question, the average score per “substantial” item is arguably a better measure of consistency than the total number of relevant items.
[15] An example of a “farmed animal issue” would be support for a ban on factory farming. For example, would public support for a ban on factory farming directly positively influence the likelihood that the Supreme Court would re-interpret the Constitution to rule that factory farming was unconstitutional, or rule that new legislation banning factory farming was indeed constitutional (I1)? Would higher pre-decision awareness of factory farming and related social issues increase the effects of a Supreme Court decision on public opinion, increase any polarization effects, and increase backlash (EM3)? Other outcome measures in Jacy Reese, “Survey of US Attitudes Towards Animal Farming and Animal-Free Food October 2017” (November 20, 2017), https://www.sentienceinstitute.org/animal-farming-attitudes-survey-2017 provide examples of other farmed animal issues of interest.
[16] Jamie Harris, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion and Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming).
[17] See especially Lee Epstein and Andrew D. Martin, “Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why),” University of Pennsylvania Journal of Constitutional Law 13 (2010), 263-81.
[19] See the “Limitations” section and appendix below.
[20] For example, Melinda Gann Hall, “Electoral Politics and Strategic Voting in State Supreme Courts,” The Journal of Politics 54, no. 2 (1992), 427-46 finds that “single-member districts, beginning at the end of a term, prior representational service, narrow vote margins and experience in seeking reelection encourage minority justices to be attentive to their constituencies by voting in accordance with constituent opinion.”
See also footnotes 22 and 23 below.
[21] See the items with scores inputted for I1 and I2 in the “Findings tables” spreadsheet and relevant discussion in the appendix.
[22] Lawrence Baum and Neal Devins, “Why the Supreme Court Cares about Elites, Not the American People,” Georgetown Law Journal 98 (2009), 1515-81 note, for example, that “a survey of seventy Supreme Court law clerks... found that eighty-eight percent of clerks would be inclined to give ‘closer attention’ to amicus briefs filed by academics.”
Klarman, From the Closet to the Altar, 170-1, seeking to explain why justices may sometimes diverge from public opinion, notes large disparities in public opinion on social issues between those with higher and lower levels of education.
[23] For example, Matthew E. K. Hall and Joseph Daniel Ura, “Judicial Majoritarianism,” The Journal of Politics 77, no. 3 (2015), 818-32 find that, categorizing Congress and the President’s support for legislation as either “high” or “low,” the predicted probability of invalidation of the legislation by the Supreme Court within a year of its passage is around 0.018 and 0.035 respectively. This difference could mostly reflect either the indirect effects of public opinion, or the direct effects of elite preferences, since no tests are conducted to distinguish between these possibilities.
Similarly, Anna Harvey and Barry Friedman, “Pulling Punches: Congressional Constraints on the Supreme Court’s Constitutional Rulings, 1987–2000,” Legislative Studies Quarterly 31, no. 4 (2006), 533-62 find evidence that “the probability that the Rehnquist Court would strike a liberal congressional law rose between 47% and 288% as a result of the 1994 congressional elections, depending on the legislative model used.” However, the extent to which this reflects the increased salience of public opinion, rather than the shifting balance of elite power and its direct influence on the Court, is unclear.
Micheal W. Giles, Bethany Blackstone, and Richard L. Vining Jr., “The Supreme Court in American democracy: Unraveling the linkages between public opinion and judicial decision making,” The Journal of Politics 70, no. 2 (2008), 293-306 find that “the differences among the justices in their decisional propensities explain the overwhelming majority of the variation in liberalism. Model 1, which includes only dummy variables for the justices, explains approximately 85% of the variation in liberal voting.” This suggests that the Supreme Court’s decision-making responds to the public mood indirectly, when new appointments are made by the President and Senate, rather than by directly taking the public mood into account. However, it shows more directly that their decision-making responds to the preferences of the President and the Senate.
[25] Paul M. Collins Jr., “Friends of the Court: Examining the Influence of Amicus Curiae Participation in Us Supreme Court Litigation,” Law and Society Review 38, no. 4 (2004), 807-32. Collins used logistic regression with several control variables to attempt to isolate the “marginal impact” of each independent variable on the probability of petitioner success. These results are used to predict probabilities of petitioner success with differing numbers of amicus briefs supporting the petitioner or the respondent. Collins does not note the 1.8% figure explicitly. Collins’ results suggest that, “holding all other variables at their mean or modal values,” the petitioner’s probability of success is 71.8% with no amicus briefs supporting the petitioner and no amicus briefs supporting the respondent. This increases to 73.6% chance of a petitioner win with 1 supporting amicus brief but no opposing amicus briefs (i.e. a difference of 1.8% from 0 briefs), 75.4% with 2 supporting amicus briefs (i.e. a further difference of 1.8 from 1 brief), and 77.1% with 3 supporting amicus briefs (i.e. a further difference of 1.7% from 2 briefs). Rounded to 1 decimal place, this suggests that each of the first three additional unopposed amicus briefs supporting the petitioner is associated with an average of a 1.8% higher chance of petitioner success. A similar calculation using Collins’ results suggests that each of the first few unopposed amicus briefs supporting the respondent decreased the chances of petitioner success by about 2.4%.
Joseph D. Kearney and Thomas W. Merrill, “The Influence of Amicus Curiae Briefs on the Supreme Court,” University of Pennsylvania Law Review 148, no. 3 (2000), 743-855. The authors “computed the benchmark rate by determining the mean p-win and p-loss rate for petitioners and respondents in cases in which no amicus briefs were filed.” The “Percentage Change in P-Win Rates for Amici Supporting Petitioner Relative to Benchmark Rates of Success” was then calculated for each decade and the results were averaged across all 5 decades studied. Using similar methodology, Kearney and Merrill found that amicus briefs supporting respondents were associated with a 7.34% lower probability of petitioner wins.
[26] Kelly J. Lynch, “Best Friends-supreme Court Law Clerks on Effective Amicus Curiae Briefs,” Journal of Law and Politics 20 (2004), 33.
[27] Joseph Ignani and James Meernik, “Explaining Congressional Attempts to Reverse Supreme Court Decisions,” Political Research Quarterly 47, no. 2 (June 1994), 353-71 and Virginia A. Hettinger and Christopher Zorn, “Explaining the Incidence and Timing of Congressional Responses to the US Supreme Court,” Legislative Studies Quarterly 30, no. 1 (2005), 5-28.
[29] Ignani and Meernik, “Explaining Congressional Attempts,” 353-71 found that “[i]n 26 percent of the cases public opinion was aroused; 92 percent of the time that public opinion was an issue, the Congress took some action, while in only 12 percent of the cases where public opinion was not a factor, did the legislature respond to a Court decision.” This works out as about 32% of all cases.
More recently, Richard L. Hasen, “End of the Dialogue: Political Polarization, the Supreme Court, and Congress,” Southern California Law Review 86 (2012), 101-55 found that the rate of Congressional overriding of Supreme Court statutory decisions has fallen from an average of 12 overrulings of Supreme Court cases in each two-year Congressional term during the 1975-1990 period to an average of 2.8 in 2001-2012. By comparison, “Supreme Court cases, October term 2018-2019,” Ballotpedia, accessed September 18, 2019, https://ballotpedia.org/Supreme_Court_cases,_October_term_2018-2019 notes that “[b]etween 2007 and 2018, SCOTUS released opinions in 850 cases,” which works out as an average of 71 per year. “The Justices’ Caseload,” accessed September 18, 2019, https://www.supremecourt.gov/about/justicecaseload.aspx notes that “[p]lenary review, with oral arguments by attorneys, is currently granted in about 80 of those cases each Term,” though this claim does not specify a date range and the webpage itself is not dated. The frequency with which backlash leads to a direct override of a decision seems to be a low proportion: comparing the figure of 71 opinions released per year in 2007 to 2018 to the average of 2.8 overrulings in 2001-2012 (and ignoring the slight difference in time periods covered) suggests that 4% of decisions are overruled.
Matthew R. Christiansen and William N. Eskridge Jr, “Congressional Overrides of Supreme Court Statutory Interpretation Decisions, 1967-2011,” Texas Law Review 92 (2013), 1317-541 found that there was an “explosion” of overrides in the 1990s, but agree with Hasen (2012) that the rate declined subsequently. In the most salient cases, they suggest that Congress often uses overrides to “restore” its preferred understanding of the legislation, as with the 1991 Civil Rights Act. However, “the large majority” of overrides are bipartisan statutes to “update” rather than “restore” the law.
Categorizing Congress and the President’s support for legislation as either “high” or “low,” Hall and Ura, “Judicial Majoritarianism,” 818-32 find that the predicted probability of invalidation of the legislation by the Supreme Court within a year of its passage is around 0.018 and 0.035 respectively. The probability declines steeply over time, reaching about 0.005 and 0.01 respectively 10 years after the legislation is passed.
[30] In response to a draft of this report, Kevin Schneider, executive director of the Nonhuman Rights Project wrote (email correspondence with Jamie Harris, November 19, 2019) that there is “real value… in building the case from the ‘ground up’ by going through state courts, not to mention that US federal courts are not common law courts and are therefore far less able we think to make truly bold moves for nonhuman rights. Indeed, the more we focus on narrow, discrete cases in the state courts using habeas corpus in a very serious way, the more headway we seem to be making… [T]here is no clear path that we can see (in the absence of positive federal legislation) that the federal courts could create rights for nonhuman animals currently even if they wanted to. Our federal courts are courts of limited jurisdiction by design, whereas the state courts have deeper (if narrower) jurisdiction, in particular the common law (the law judges make). Federal courts are cabined in by legislative/constitutional intent in almost every instance… The other tricky thing is the certiorari process at the Supreme Court—for almost all cases they have discretion to hear or not hear a given case.”
A number of other factors could affect the tractability of state-level litigation in comparison to litigation aimed at the Supreme Court, such as the historical success rates of petitioners and the relative responsiveness to public opinion of different courts. As noted in the section on “Potential Items for Further Study,” an additional literature review focused on the lower courts could address questions such as these.
[31] David Rudovsky, “Qualified Immunity Doctrine in the Supreme Court: Judicial Activism and the Restriction of Constitutional Rights,” University of Pennsylvania Law Review 138 (1989), 23-81 argues that the 1883 Civil Rights Act was largely ignored until the 1961 Monroe v. Pape Supreme Court decision. Afterwards, the legislation was reinterpreted in a manner comparable to making entirely new policy. For example, Rudovsky summarizes that the Court “gave a broad reading to the concepts of state action and color of state law, ruled that property as well as liberty interests were protected by the Act, determined that exhaustion of state remedies was not required, and provided only limited immunities to individual defendants.”
Michael Selmi, “Interpreting the Americans with Disabilities Act: Why the Supreme Court Rewrote the Statute, and Why Congress Did Not Care,” George Washington Law Review 76 (2007), 522-75 focuses on judicial decision-making in the wake of the 1990 Americans with Disabilities Act. This suggests that, without necessarily overturning legislation, the Supreme Court may interpret it narrowly, limiting its practical application, if the wording and intent of the legislation is insufficiently specific.
[32] Evaluating these effects may be better suited to a case study format. Sentience Institute’s social movement case studies include such evaluations. See Kelly Anthis, “Social Movement Lessons From the British Antislavery Movement: Focused on Applications to the Movement Against Animal Farming” (December 1, 2017), https://www.sentienceinstitute.org/british-antislavery, Jamie Harris, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion, and Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming).
[33] Gerald N. Rosenberg, The Hollow Hope: Can Courts Bring about Social Change? (Chicago: University of Chicago Press, 2008).
Criticisms of Rosenberg include:
Roy B. Flemming, John Bohte, and B. Dan Wood, “One Voice among Many: The Supreme Court's Influence on Attentiveness to Issues in the United States, 1947-92,” American Journal of Political Science 41, no. 4 (1997), 1224-50.
David Schultz and Stephen E. Gottlieb, “Legal Functionalism and Social Change: A Reassessment of Rosenberg’s The Hollow Hope: Can Courts Bring about Social Change” The Journal of Law and Politics 12, no. 63 (1998), 63-91.
Lani Guinier, “Beyond Legislatures: Social Movements, Social Change, and the Possibilities of Demosprudence-courting the People Demosprudence and the Law/Politics Divide,” Boston University Law Review 89 (2009), 539-61.
Scott L. Cummings, “Rethinking the foundational critiques of lawyers in social movements,” Fordham Law Review 85 (2016), 1987-2015.
Scott L. Cummings and Douglas NeJaime, “Lawyering for Marriage Equality,” University of California, Los Angeles Law Review 57 (2009), 1235-331.
[34] In response to a draft of this report, Kevin Schneider, executive director of the Nonhuman Rights Project wrote (email correspondence with Jamie Harris, November 19, 2019) that, “we [the NhRP] somewhat go against the NGO trend in our choice of state courts over federal/national advocacy. The tendency of activists to go for top-down (federal legislation being the main lever) has appeared to be counterproductive at times (perhaps because they get out ahead of public opinion), or the federal process waters down their efforts to make them even vaguely passable. Perhaps this is uniquely true about animal issues. The recent amendments to the federal Animal Welfare Act sound great in theory, until one realizes that almost no cruelty is covered unless it is in the context of interstate commerce (since federal law must in general be premised on that).” Schneider also noted that the Supreme Court “often looks at splits in opinions among federal appellate courts when deciding whether to grant review.”
[35] For example, Kermit Roosevelt III, The Myth of Judicial Activism: Making Sense of Supreme Court Decisions (New Haven: Yale University Press, 2006) argues that several decisions that have been referred to as “activist” decisions (and hence, it is implied, illegitimate), were actually reasonable and legitimate, including Brown and Loving v. Virginia.
[36] Thomas M. Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago: University of Chicago Press, 2004), analyzing the number and annual average of decisions striking down federal statutes on constitutional grounds, includes data showing that the “late Rehnquist Court” (1995-2003, the most recent Supreme Court analyzed) scored more highly (33 total, 3.67 average per year) than any other Court. The relationships appear entirely different when state and local statutes are examined, however.
William Lasser, “The Supreme Court in Periods of Critical Realignment,” The Journal of Politics 47, no. 4 (1985), 1174-87 argues that there have been periods of “critical realignment” in the 1850s, the 1890s, and the 1930s when “the Court was ‘captured’ by its conservative wing and struck down an important piece of moderate legislation. By making centrist positions untenable, the Court facilitated the takeover of the major parties by their extremist factions. In two of the three periods, in turn, the Court found itself at the center of intense controversy and criticism.”
[37] Corey Ditslear and Lawrence Baum, “Selection of Law Clerks and Polarization in the Us Supreme Court,” The Journal of Politics 63, no. 3 (2001), 869-85 argue that the Supreme Court is becoming increasingly polarized. One symbol of this is that, in 1993-1998, three justices, “Souter, Stevens, and Ginsburg all drew more than two-thirds of their clerks from Democratic appointees. Scalia and Rehnquist drew about 95% of their clerks from Republican appointees, and Thomas never went to a Democratically appointed judge for a clerk.”
Neal Devins and Lawrence Baum, “Split Definitive: How Party Polarization Turned the Supreme Court into a Partisan Court,” The Supreme Court Review 2016, no. 1 (2016), 301-65 argue that “presidents have increasingly paid attention to ideology in Supreme Court appointments... Today, every Justice appointed by a Democratic president stands to the left of every Justice appointed by a Republican president, and this is not likely to change any time soon.”
[38] Frank H. Easterbrook, “Do Liberals and Conservatives Differ in Judicial Activism,” University of Colorado Law Review 73 (2002), 1401-16. Easterbrook counted the “activist” votes of nine different Supreme Court justices, divided by type of case, and found no clear evidence of difference between conservatives and liberals. Easterbrook found some evidence that “conservatives are more likely to reject statutory interpretations advanced by a Democratic president—though even here the difference is not great.”
[39] See the items with scores inputted for E1 in the “Findings tables” spreadsheet and the relevant discussion in the appendix.
[40] Michael Zilis, “The Supreme Court on Trial” in his The Limits of Legitimacy: Dissenting Opinions, Media Coverage, and Public Responses to Supreme Court Decisions (Ann Arbor: University of Michigan Press, 2015), 143-70.
The change in beliefs about the law’s constitutionality were slightly higher, at 0.1 on a 6-point scale.
[41] Patrick J. Egan, Nathaniel Persily, and Kevin Wallsten, “Gay Rights,” in Nathaniel Persily, Jack Citrin, and Patrick J. Egan (eds.) Public opinion and constitutional controversy (Oxford: Oxford University Press, 2008), 234-66.
[42] See the results for EM1, EM3, EM4, EM5, EM6, and EM8 in the “Findings tables” spreadsheet and relevant discussion of the results in the appendix.
[43] See, in the “Summary information” tab of the “Findings tables” spreadsheet:
Michael J. Klarman, “How Brown Changed Race Relations: The Backlash Thesis,” The Journal of American History 81, no. 1 (1994), 81-118,
Michael J. Klarman, “Brown and Lawrence (and Goodridge),” Michigan Law Review 104 (2005), 431-90,
Klarman, From the Closet to the Altar,
Keck, “Beyond Backlash,” 151-86,
Christopher B. Wlezien and Malcolm L. Goggin, “The Courts, Interest Groups, and Public Opinion about Abortion,” Political Behavior 15, no. 4 (1993), 381-405,
Michael F. Salamone, “Judicial Consensus and Public Opinion: Conditional Response to Supreme Court Majority Size,” Political Research Quarterly 67, no. 2 (2014), 320-334, and
Douglas NeJaime, “Winning Through Losing,” Iowa Law Review 96 (2010), 941-1012.
[44] See, in the “Summary information” tab of the “Findings tables” spreadsheet. Cummings and NeJaime, “Lawyering for Marriage Equality,” 1235-331 and Linda Greenhouse and Reva Siegel, Before Roe v. Wade: Voices that Shaped the Abortion Debate before the Supreme Court’s Ruling (New York: Kaplan Publishing, 2010).
[45] See footnote 29. Jeff King, Judging Social Rights (Cambridge, UK: Cambridge University Press, 2012) also argues that backlash is rare.
[46] Jamie Harris, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion and Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming).
[47] See the items with scores inputted for EM2, EM4, EM6, and EM7 in the “Findings tables” spreadsheet and the discussion of them in the appendix.
[48] Klarman, From the Closet to the Altar, 37-9 describes how the Bowers v. Hardwick (1986) ruling, which was hostile to gay rights, increased the salience of gay rights in the newspapers and on television and “galvanized the gay rights movement.” Results included a tripling of individual donations to Lambda Legal and most likely in increased attendance at a national gay rights march in 1987.
See also Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming) on the US anti-death penalty movement’s response to the Gregg v. Georgia (1976) ruling.
[49] Wlezien and Goggin, “The Courts, Interest Groups,” 381-405. For this study, “coders identified 943 abortion stories that appeared in the New York Times during the period between 1985 and 1989 (inclusive) and classified them according to content” to identify court activity and interest group activity.
[50] NeJaime, “Winning Through Losing,” 941-1012 summarizes that, “in configuring judicial defeat for internal movement purposes, sophisticated advocates may use litigation loss (1) to construct organizational identity and (2) to mobilize constituents. In translating loss into strategies aimed at decision makers outside the movement, advocates may use litigation loss (1) to appeal to other state actors, including elected officials and judges, through reworked litigation and nonlitigation tactics and (2) to appeal to the public by stressing the need to discipline a countermajoritarian judiciary.”
[51] See the items with scores inputted for E2 in the “Findings tables” spreadsheet and the discussion of I2 in the appendix.
[52] Timothy R. Johnson and Andrew D. Martin, “The public's conditional response to Supreme Court decisions,” American Political Science Review 92, no. 2 (1998), 299-309 find that after the Furman decision, groups moved in different directions, with those with higher education becoming significantly more opposed to the death penalty and partisan attitudes becoming more polarized. After Gregg v. Georgia, they find no significant differences across the sample as a whole. The only significant change for a demographic subgroup was that those with higher education became significantly less opposed to the death penalty -- the opposite effect to that found for Furman. After the McCleskey decision, the overall change was not significant; the only group with a significant change was female, who became more opposed to the death penalty, despite not having been significantly different from average before. The finding that some groups moved significantly after the Gregg and McCleskey rulings provides some evidence against their hypothesis that after the first landmark ruling on an issue, subsequent rulings will have no effect on public opinion. Although groups do seem to move in different directions after Furman, with some of these changes being significant, there is no consistent pattern as to the directions in which groups moved.
Brickman, Danette, and David A. M. Peterson, “Public Opinion Reaction to Repeated Events: Citizen Response to Multiple Supreme Court Abortion Decisions,” Political Behavior 28, no. 1 (2006), 87-112 find that, in contrast to the "conditional response model" of Johnson and Martin (1998), different demographic groups likely did significantly change their views after the 1989 Webster decision. However, there is no evidence that groups more or less hostile to abortion rights before the decision moved in opposite directions after the decision. Using a different measure, they also find evidence that groups responded differently after the 1976 Danforth decision. There is weak evidence that groups with greater pre-existing knowledge of the issue were less likely to change their views; they find that a group with mid-level political sophistication on abortion-specific political knowledge changed their views, but that the most and least sophisticated respondents did not.
[53] See the items with scores inputted for EM1 and EM2 in the “Findings tables” spreadsheet and the discussion of them in the appendix.
[54] See the items with scores inputted for EM3 in the “Findings tables” spreadsheet and the discussion of EM3 in the appendix.
To see this as an important factor, one would also need to be confident that Supreme Court decisions positively influence public opinion (E1).
[55] Flemming, Bohte, and Wood, “One Voice among Many,” 1224-50 analyzed the media coverage of “school desegregation, freedom of speech/censorship, and church/state issues” in 8,179 articles from a variety of newspapers and magazines.” Box-Tiao methods are used to understand the effects of Supreme Court decisions on the salience of those issues. Of three school desegregation decisions, the first, Brown (1954), “produced a lasting increase in media coverage of school desegregation issues of about 128%.” The Cooper (1958) decision seems to have caused some increase for up to 12 months but the Griffin (1964) decision “produced only a one month shift in media coverage.” The 1989 Texas v. Johnson decision seems to have caused a 118% “long-term shift in coverage of free speech/censorship issues.” On “freedom of religion, and establishment questions,” the first two significant cases analyzed (McCollum, 1948 and Engel, 1962) “were modeled as abrupt, permanent shifts,” causing 93% and 139% shifts respectively, while the third, Lynch (1984) “was modeled as a temporary effect.”
Joseph Daniel Ura, “The Supreme Court and Issue Attention: The Case of Homosexuality,” Political Communication 26, no. 4 (2009), 430-46 analyzes “the media’s responsiveness to the Supreme Court’s gay rights cases from 1990 to 2005,” using “monthly indicators of the level of attention paid to homosexuality by two stylistically divergent newspapers, The New York Times and USA Today.” Ura finds “[s]ignificant increases in attention to homosexuality accompanied Supreme Court decisions that expanded gay rights” but that cases that did not substantially expand gay rights “had no effect on media coverage.” The two newspapers were found to respond differently to different decisions.
In contrast, Rosenberg, The Hollow Hope, 111-7 and 229-34 argues that Supreme Court decisions on civil rights and womens’ rights had little effect on issue salience. However, much of the data presented by Rosenberg is open to interpretation, since formal statistical tests that control for multiple variables are not conducted; Rosenberg relies on intuitive visual interpretation of graphs of media coverage over time.
[56] Lee Epstein and Jeffrey A. Segal, “Measuring Issue Salience,” American Journal of Political Science 44, no. 1 (2000), 66-83.
[57] Charles Siebert, “Should a Chimp Be Able to Sue Its Owner?” (April 23, 2014), https://www.nytimes.com/2014/04/27/magazine/the-rights-of-man-and-beast.html and “Unlocking the cage,” Nonhuman Rights Project, accessed October 1, 2019, https://www.nonhumanrights.org/unlocking-the-cage/.
[58] These articles usually cite multiple works by Rosenberg and Klarman, but the most often-cited works are Rosenberg, The Hollow Hope and Klarman, “How Brown Changed Race Relations.”
[59] David S. Meyer and Suzanne Staggenborg, “Movements, Countermovements, and the Structure of Political Opportunity,” American Journal of Sociology 101, no. 6 (1996), 1628-60.
Similarly, in an article summarizing the differing contributions of legal scholarship and social movement scholarship to understandings of how law matters for social movements, Michael W. McCann, “How Does Law Matter for Social Movements?” in Bryant G. Garth and Austin Sarat (eds.) How Does Law Matter? (Evanstown, Illinois: Northwestern University Press, 1998), 76-108 notes that the legal environment can affect “agenda formation” and the “opportunity structure” for social movements. Legal change can also defend the freedoms of advocates and compel issues to be placed on public and institutional agendas.
Guinier, “Beyond Legislatures,” 539-61 argues that it is possible for justices to shape and affect public discourse.
Douglas NeJaime, “Constitutional Change, Courts, and Social Movements,” Michigan Law Review 111 (2012), 877-902 summarizes previous literature and reviews Jack Balkin’s book, Constitutional Redemption: Political Faith in an Unjust World. NeJaime summarizes that Balkin “convincingly exposes the feedback loop between social movements and courts: courts respond to claims and visions crafted by movements, and court decisions in turn shape the claims and visions of those movements and alter the political terrain on which those movements operate.”
[60] “Framing remains paramount” in J. Mohorčich, “What can the adoption of GM foods teach us about the adoption of other food technologies?” (June 20, 2018), https://www.sentienceinstitute.org/gm-foods#framing-remains-paramount notes that, “an important shift in French discourse on GMOs in the late ’90s came about when ‘‘risk framing’ successfully challenged… ‘innovation framing’.’ A further example comes in Calgene’s and Zeneca’s marketing of their GM tomatoes and tomato paste as high quality because they had been genetically engineered, not in spite of it: Zeneca, for example, ‘spent an enormous amount of time cultivating British journalists and lining up partners in the food business. They’d already decided that this tomato paste would be packaged in special cans and labeled as the product of ‘genetically altered tomatoes,’ even though such labels weren’t required…. They even turned genetic engineering into a marketing gimmick, advertising the launch of tomato paste as ‘a world-first opportunity to taste the future.’’ The experiment succeeded: ‘Through the summer of 1996 Zeneca’s red cans of tomato paste, proudly labeled ‘genetically altered,’ outsold all competitors.’”
“Public narrative” in J. Mohorčich, “What can nuclear power teach us about the institutional adoption of clean meat?” (November 28, 2017), https://www.sentienceinstitute.org/nuclear-power-clean-meat#public-narrative summarizes that, “Kepplinger cites as an example water fluoridation experiments in which researchers found that ‘acceptance [of fluoridation] dropped due solely to the subject being made a theme of popular interest. This was still the case even if the arguments in favour of fluoridation were presented in a suitable way.’ Ralph Nader and engineer-turned-activist John Abbotts relate a story in which the US Atomic Energy Commission released ‘Theoretical Possibilities and Consequences of Major Accidents in Large Nuclear Plants,’ a 1957 report intended, at least in part, to show in detail how unlikely such accidents were. The effort backfired when activists and the public focused on projected casualty numbers included in the report (e.g. 3,400 deaths and upwards of 40,000 injuries in one scenario). Additionally, public debates tend not to focus on a specific chain of well-established technical claims (which is often necessary for arguing why a given technology is safe) but instead glide from concern to concern: ‘As the opposition [to nuclear power] developed, its basis broadened out to reveal successive layers or facets of concern. This made it difficult to identify a set of cogent issues and provided scope for the debate to shift from one concern to another.’ This type of shifting concern-cloud is difficult to dissipate with focused arguments, no matter how well-grounded.”
[61] Klarman, From the Closet to the Altar, 176 describes how the gay rights legal advocacy group Lambda Legal included same-sex marriage on its priorities list, probably due to the litigation in Hawaii as part of the Baehr v. Lewin case. Klarman provides various qualitative evidence that legal cases increased the salience of same-sex marriage issues and may have “increased public support for compromise positions,” as with the discussion of the 1986 Bowers ruling on pages 37-9. However, same-sex marriage was one of the most controversial gay rights issues in the 1990s; Klarman notes that, “in 1996, 84 percent of Americans supported equal rights for gays in employment, but only 33 percent favored gay marriage.” The increased salience of gay marriage may therefore also have diverted advocates’ attention from securing more tractable (albeit less valuable) victories. On page 213, Klarman notes that, “[i]n state after state, voters have rejected gay marriage when they probably would have approved civil unions if given the opportunity. In 2009, Mainers rejected gay marriage by 53 percent to 47 percent, while polls showed that they favored either gay marriage or civil unions over no legal recognition for same-sex couples by 73.8 percent to 23 percent. Also in 2009, the New York legislature voted down gay marriage while polls showed that New Yorkers supported civil unions by 65 percent to 27 percent.”
[62] Evidence in the section on “Messaging” in Jamie Harris, “Social Movement Lessons from the US Anti-Death Penalty Movement (forthcoming) suggests that drawing attention to more acceptable policy issues further encourages support for reform.
[63] Few RCTs came up in my systematic searches and I did not look up all RCTs that were summarized at the start of reviewed research items — it is possible that I have looked at a lower proportion of the existing relevant experimental research than the relevant observational research.
[64] For example, Dino P. Christenson and David M. Glick, “Issue-specific Opinion Change: The Supreme Court and Health Care Reform,” Public Opinion Quarterly 79, no. 4 (2015), 883 note that “[p]erhaps the most important threat to experiments’ external validity is that people rarely learn about actual Supreme Court cases, and what they do hear about cases is accompanied by a variety of partisan and political messages. Almost no one merely hears that the Supreme Court decided a case in a certain way (Unger 2008; Egan and Citrin 2011), as it is often portrayed in experiments. Experiments can estimate the effect of knowing that the Court ruled a certain way on an issue, but are limited in their ability to capture the realities that people often do not receive or understand the Court’s position (Unger 2008) or are influenced by the media’s and other elites’ framing of decisions (Clawson and Waltenburg 2003).”
[65] Charles H. Franklin and Liane C. Kosaki, “Republican Schoolmaster: The US Supreme Court, Public Opinion, and Abortion,” American Political Science Review 83, no. 3 (1989), 763.
[66] These scores sometimes reflect a disagreement with the original authors about how their findings should be interpreted. For example, Timothy R. Johnson and Andrew D. Martin, “The Public’s Conditional Response to Supreme Court Decisions,” American Political Science Review 92, no. 2 (1998), 299-309 claim that the cases they evaluate provide evidence of polarization. There do indeed appear to be differences in how groups respond to a ruling, but these differences are not obviously related to their attitudes prior to the decision. For example, after the Furman decision, the authors find that groups moved in different directions, with those with higher education becoming significantly more opposed to the death penalty and partisan attitudes becoming more polarized. After Gregg v. Georgia, they find no significant differences across the sample as a whole. The only significant change for a demographic subgroup was that those with higher education became significantly less opposed to the death penalty — the opposite effect to that found for Furman. After the McCleskey decision, the overall change was not significant; the only group with a significant change was female, who became more opposed to the death penalty, despite not having been significantly different from average before.
[67] John Hanley, Michael Salamone, and Matthew Wright, “Reviving the Schoolmaster: Reevaluating Public Opinion in the Wake of Roe v. Wade,” Political Research Quarterly 65, no. 2 (2011), 408-21.
[68] Six included experimental research items evaluated this:
Brandon L. Bartels and Diana C. Mutz, “Explaining Processes of Institutional Opinion Leadership,” The Journal of Politics 71, no. 1 (2009), 249-61,
Valerie J. Hoekstra, “The Supreme Court and Opinion Change: An Experimental Study of the Court's Ability to Change Opinion,” American Politics Quarterly 23, no. 1 (1995), 109-29,
Jeffery J. Mondak, “Policy Legitimacy and the Supreme Court: The Sources and Contexts of Legitimation,” Political Research Quarterly 47, no. 3 (1994), 675-92,
Stephen P. Nicholson and Thomas G. Hansford, “Partisans in Robes: Party Cues and Public Acceptance of Supreme Court Decisions,” American Journal of Political Science 58, no. 3 (2014), 620-36,
Benjamin G. Bishin, Thomas J. Hayes, Matthew B. Incantalupo, and Charles Anthony Smith, “Opinion Backlash and Public Attitudes: Are Political Advances in Gay Rights Counterproductive?” American Journal of Political Science 60, no. 3 (2016), 625-48, and
David Fontana and Donald Braman, “Judicial Backlash or Just Backlash-Evidence from a National Experiment,” Columbia Law Review 112 (2012), 731-99.
[69] Zilis, The Limits of Legitimacy and Katerina Linos and Kimberly Twist, “The Supreme Court, the Media, and Public Opinion: Comparing Experimental and Observational Methods,” The Journal of Legal Studies 45, no. 2 (2016), 223-54.
[70] James R. Zink, James F. Spriggs, and John T. Scott, “Courting the Public: The Influence of Decision Attributes on Individuals’ Views of Court Opinions,” The Journal of Politics 71, no. 3 (2009), 909-25 and Salamone, “Judicial Consensus and Public Opinion,” 320-334.
[71] For example, Marshall, Public Opinion, 147-54, tried to evaluate this and found no evidence of an effect. However, given that only 18 cases were analyzed, only two of which were unanimous, and given that average poll shifts were only compared across binary categories, rather than analyzed in multiple regression that controlled for the other 10 identified factors, this does not constitute strong evidence of no effect.
[72] For example, only 2 experimental research items were identified and included from my systematic searches. This may reflect a tendency of scholars to cite such research less frequently. The smaller overall number of included experimental research items compared to observational research (11 and 58 respectively) could also a lower incidence of such research being carried out.
[73] See, for example, Jacy Reese, “Survey of US Attitudes Towards Animal Farming and Animal-Free Food October 2017” (November 20, 2017), https://www.sentienceinstitute.org/animal-farming-attitudes-survey-2017 and Jo Anderson and Linda Tyler, “Attitudes Toward Farmed Animals in the BRIC Countries,” (September 2018), https://faunalytics.org/attitudes-towards-farmed-animals-bric-countries/.
[74] Jayson Lusk, “The Effect of Proposition 2 on the Demand for Eggs in California,” The Journal of Agricultural and Food Industrial Organization 8, no. 1 (January 2010) provides one example of where relevant research has already been conducted.
[75] In these cases, large RCTs between states or local communities might be preferable, but I do not expect that the effective animal advocacy movement will have the resources and political control necessary to run such large-scale RCTs for decades, if ever.
[76] To avoid repetition, the limitations listed in this section are not repeated each time in the “Notable Limitations” column of the tab “Search results” in the spreadsheet “Findings tables” or in the appendix.
[77] James A. Stimson, Public Opinion in America: Moods, Cycles, and Swings (New York: Routledge, 1999 [1991]).
[78] As one example of a social issue where there is little political polarization, see “Public opinion about genetically modified foods and trust in scientists connected with these foods,” Pew Research Center (December 1, 2016), https://www.pewresearch.org/science/2016/12/01/public-opinion-about-genetically-modified-foods-and-trust-in-scientists-connected-with-these-foods/.
However, research suggests that Democrats tend to prioritize animal welfare and rights more than Republicans do. Robert W. Prickett, “Consumer preferences for farm animal welfare: Results from a telephone survey of US households” (PhD dissertation, 2008), https://shareok.org/bitstream/handle/11244/8715/Prickett_okstate_0664M_10025.pdf found that 39% Republicans reported considering the “well-being of farm animals” when making decisions “about purchasing meat,” compared to 61% of Democrats. 64% of Republicans agreed that “[t]he government should take an active role in promoting farm animal welfare,” compared to 84% of Democrats.
Rebecca Riffkin, “In U.S., More Say Animals Should Have Same Rights as People” (May 18, 2015), https://news.gallup.com/poll/183275/say-animals-rights-people.aspx notes that 39% of Democratic survey respondents believed that animals “deserve the same rights as people,” compared to 23% of Republicans.
[79] For example, Epstein and Martin, “Does Public Opinion Influence,” 269 provides a graph of changes in Stimson’s annual measure of the public mood, 1953-2008. Visual inspection suggests no strong correlation between this measure and attitudes on abortion (see the tab “Gallup overall support” in the spreadsheet “Public opinion data,” relating to Jamie Harris, Social Movement Lessons From the US Anti-Abortion Movement (November 26, 2019) https://www.sentienceinstitute.org/anti-abortion) or the death penalty (see “Death Penalty,” Gallup, accessed June 28, 2019, https://news.gallup.com/poll/1606/death-penalty.aspx).
Both of these issues are high in salience and highly politically polarized; for lower salience, less polarized issues, I suspect that the correlation would be even weaker.
[80] See, for example:
William Mishler and Reginald S. Sheehan, “Public Opinion, the Attitudinal Model, and Supreme Court Decision Making: A Micro-analytic Perspective,” The Journal of Politics 58, no. 1 (1996), 169-200,
Kevin T. McGuire and James A. Stimson, “The Least Dangerous Branch Revisited: New Evidence on Supreme Court Responsiveness to Public Preferences,” The Journal of Politics 66, no. 4 (2004), 1018-35,
Jonathan P. Kastellec, Jeffrey R. Lax, and Justin H. Phillips, “Public Opinion and Senate Confirmation of Supreme Court Nominees,” The Journal of Politics 72, no. 3 (2010), 767-84,
and Giles, Blackstone, and Vining, “The Supreme Court,” 293-306.
Matthew E. Wetstein, C. L. Ostberg, Donald R. Songer, and Susan W. Johnson, “Ideological Consistency and Attitudinal Conflict: A Comparative Analysis of the US and Canadian Supreme Courts,” Comparative Political Studies 42, no. 6 (2009), 763-92 also finds evidence that a simple conservative-liberal spectrum represents the decision-making of the US Supreme Court well.
[81] Jeffrey A. Segal and Albert D. Cover, “Ideological values and the votes of US Supreme Court justices,” American Political Science Review 83, no. 2 (1989), 557-65.
[82] “The Supreme Court Database,” Washington University, accessed September 10, 2019, http://supremecourtdatabase.org/.
[83] Andrew D. Martin and Kevin M. Quinn, “Dynamic ideal point estimation via Markov chain Monte Carlo for the US Supreme Court, 1953–1999,” Political Analysis 10, no. 2 (2002), 134-53.
[84] Epstein and Segal, “Measuring Issue Salience,” 66-83.
[85] As examples of empirical findings suggesting the coverage of a national newspaper might be a misleading measure of salience, see Valerie J. Hoekstra, “The Supreme Court and Local Public Opinion,” American Political Science Review 94, no. 1 (2000), 89-100 and Valerie J. Hoekstra and Jeffrey A. Segal, “The Shepherding of Local Public Opinion: The Supreme Court and Lamb’s Chapel,” The Journal of Politics 58, no. 4 (1996), 1079-1102.
[86] These criticisms were raised especially by Epstein and Martin, “Does Public Opinion Influence,” 263-81.
[87] This problem is highlighted by Giles, Blackstone, and Vining, “The Supreme Court,” 293-306, Epstein and Martin, “Does Public Opinion Influence,” 263-81, and Christopher J. Casillas, Peter K. Enns, and Patrick C. Wohlfarth, “How Public Opinion Constrains the US Supreme Court,” American Journal of Political Science 55, no. 1 (2011), 74-88.
However, the latter paper still found that public opinion influenced the Supreme Court’s decisions after controlling for social forces.
[88] For example, Mishler and Sheehan, “The Supreme Court,” 90 note that, for their main analysis, “[i]n developing an index of the liberalism of Court decisions, we considered only the approximately four thousand cases that were decided by full opinion and oral argument. Per curiam cases and cases decided by memorandum were excluded because of concerns that many such cases are highly routine. Such cases are unlikely either to influence, or to be influenced by, public opinion,” although they also “constructed a second index using all of the Court’s decisions, including those decided per curiam or with memorandum opinions” and found similar results.
As another example, Collins, “Friends of the Court,” 816 notes that, in their analysis, “[t]he data on litigation success come from Spaeth’s (1999) United States Supreme Court Judicial Database, 1953-1997 Terms. I consider all orally argued cases formally decided on the merits from this dataset, excluding those cases decided by a tie vote and falling under the Court’s original jurisdiction, during the Warren and Burger courts (1953-1985).” Unlike Mishler and Sheehan (1993), Collins does not appear to have conducted a robustness check that included per curiam or memorandum opinions.
For an explanation of oral argument and per curiam cases, see “Opinions,” Supreme Court of the United States, accessed November 5, 2019, https://www.supremecourt.gov/opinions/opinions.aspx.
[89] See the paragraph above beginning “This may also reflect…” and the section on “[meta] Social movements vs. EAA randomized controlled trials (RCTs) vs. intuition/speculation/anecdotes vs. external findings” in “Summary of Evidence for Foundational Questions in Effective Animal Advocacy,” Sentience Institute, last edited June 21, 2018, https://www.sentienceinstitute.org/foundational-questions-summaries#[meta]-social-movements-vs.-eaa-randomized-controlled-trials-(rcts)-vs.-intuition/speculation/anecdotes-vs.-external-findings
[90] See the section on “Features of the anti-abortion movement” in Jamie Harris, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion#features-of-the-anti-abortion-movement and the equivalent section in Jamie Harris, “Social Movement Lessons from the US Anti-Death Penalty Movement (forthcoming).
[91] See Mishler and Sheehan, “The Supreme Court,” 87-101 and Epstein and Martin, “Does Public Opinion Influence,” 268-9.
[92] For an explanation of publication bias, see “Publication Bias” in Julian P. T. Higgins and Sally Green (eds.) Cochrane Handbook for Systematic Reviews of Interventions, last edited March 2011, https://handbook-5-1.cochrane.org/chapter_10/10_2_1_0_introductory_text.htm.
[93] Wetstein, Ostberg, Songer, and Johnson, “Ideological Consistency and Attitudinal Conflict,” 763-92 discuss this concern. They find that “unlike the U.S. justices of the Rehnquist court, Canadian justices exhibit a much higher degree of ideological complexity” and that a unidimensional left-right measure of ideology is inadequate.
[94] Paul Brace and Brent D. Boyea, “State Public Opinion, the Death Penalty, and the Practice of Electing Judges,” American Journal of Political Science 52, no. 2 (2008), 360-72 tested for direct and indirect effects of public opinion on death penalty outcomes in state Supreme Courts, focusing on capital punishment. They used results from the annual General Social Survey at the state level. They found that public opinion has no direct effect on the likelihood that the Courts reverse a capital punishment ruling, unless the justices are directly elected. If the justices are elected, the level of public support for the death penalty specifically has nearly twice as much of an effect as the justices’ own political ideology.
Bryan Calvin, Paul M. Collins Jr., and Matthew Eshbaugh-Soha, “On the Relationship Between Public Opinion and Decision Making in the US Courts of Appeals,” Political Research Quarterly 64, no. 4 (2011), 736-48 examined “a random sample of thirty cases per year from each of the courts of appeals.” The dependent variable is “the percentage of liberal decisions rendered by each circuit per year.” They found that two of three indicators of indirect influence of the public mood were significant in both models (OLS and fixed effects regression); the median justice’s ideology and Congress’ ideology, but not the President's ideology. Neither of the direct measures of the public mood had significant effects in either model and neither did the federal Supreme Court’s ideological preferences.
[95] See the items with scores inputted for I1 and I2 in the “Findings tables” spreadsheet and the discussion of them in the appendix.
[96] “National Overview,” Court Statistics Project, accessed October 2, 2019, http://www.courtstatistics.org/NCSC-Analysis/National-Overview.aspx.
[97] Epstein and Segal, “Measuring Issue Salience,” 66-83.
[98] Marshall, Public Opinion, 147-54. Of these, Marshall found that whether the decision was liberal or not and whether it was activist or not had a significant effect on the average poll shift, as did the time lag from the decision until the post-decision poll, but no other factors had significant effects. However, given that only 18 cases were analyzed and average poll shifts were only compared across binary categories, rather than analyzed in multiple regression that controlled for the other 10 identified factors, insignificant differences do not constitute strong evidence of no effect.
[99] Marshall, Public Opinion, chapter 6 notes the average effect on public opinion of 18 Supreme Court rulings, dividing results into dichotomous categories. However, formal multiple regression is only conducted for three variables: the time lag between the ruling and the survey, the coding of the ruling as liberal or conservative, and the coding of the ruling as activist or not.
The lack of such research is unsurprising, as it would be fraught with methodological difficulties, such as comparing across different social issues, with varying levels of closeness of fit between the issues ruled upon by the Court and the issues asked about directly in the polls. Some factors would be difficult to create a clear instrument for, such as the media framing.
[100] For example, Valerie J. Hoekstra, Public Reaction to Supreme Court Decisions (Cambridge, UK: Cambridge University Press, 2003), 9 states that experimental research has “found that Court decisions can positively influence public opinion.” In support of this, Hoekstra cites one of their own studies, included elsewhere in this review, and 4 studies by Jeffery J. Mondak, one of which is included in this review.
Similarly, Christenson and Glick, “Issue-specific Opinion Change,” 881-905 summarizes that “[m]any, but not all, experimental studies in which participants are exposed to information about a (sometimes fictional) Court decision have yielded evidence that the Court can lead to public opinion change on some controversial policy issues (e.g., Mondak 1994; Bartels and Mutz 2009; Clawson, Kegler, and Waltenburg 2001). Observational studies have generally found less evidence of the Court changing hearts and minds (Marshall 1989; Rosenberg 1991), though Campbell and Persily (2013) capture slight movement at the macro level by comparing cross-sectional polls on health care reform.”
[101] Hoekstra, Public Reaction, 16-21 includes a table summarizing the results “of relevant research on the Court on public opinion,” but this table excludes many of the research items reviewed here. While this literature review has not covered all of the research cited by Hoekstra (most of their cited research focuses on the Supreme Court’s legitimacy), I believe that this review, with 121 included research items, is more comprehensive than Hoekstra’s review, which only includes 36 items in the table.
In support of the claim that “[o]bservational studies have generally found less evidence of the Court changing hearts and minds,” Christenson and Glick, “Issue-specific Opinion Change,” 881-905 cite only two research items. In addition to the two cited research items, this literature review has found 20 research items that have been categorized as observational and provide evidence on the question of whether or not Supreme Court decisions positively influence public opinion.
[102] Catherine Albiston, “The dark side of litigation as a social movement strategy,” Iowa Law Review Bulletin 96 (2010), 61 refers to this literature as “voluminous.”
[103] Potentially useful starting points include:
Yoav Dotan and Menachem Hofnung, “Interest Groups in the Israeli High Court of Justice: Measuring Success in Litigation and in Out‐of‐Court Settlements,” Law and Policy 23, no. 1 (2001), 1-6
Lee Epstein, “Interest Group Litigation During the Rehnquist Court Era,” The Journal of Law and Politics 9 (1992), 639-717, and
Susan P. Sturm, “Legacy and Future of Corrections Litigation,” University of Pennsylvania Law Review 142 (1993), 639-738, including the information provided in the footnotes on pages 639-48.
[104] See footnote 33.
[105] As examples of this broader literature, see Lee Epstein and Thomas G. Walker, Constitutional law for a changing America: institutional powers and constraints (Thousand Oaks, CA: CQ Press, 2019; first published 1992) and Lawrence Baum, The Puzzle of Judicial Behavior (Ann Arbor: University of Michigan Press, 1997).
[106] For example, Klarman, From the Closet to the Altar, 26-9 notes that a 1977 ordinance in Dade County, Florida, to ban discrimination on sexual orientation in housing and employment encouraged direct action protests and hostile legislation. On page 46 Klarman describes state reversals of local gay rights measures in Colorado and Cincinnati in the 1990s. Much of the rest of the book focuses on the legislative backlash to Court decisions, such as noting on page xi that after the 2004 Goodridge decision in Massachussets, “more than twenty-five states passed constitutional amendments banning gay marriage, and the issue figured prominently in the 2004 elections, possibly even altering the outcome of that year’s presidential contest.”
Cummings, “Rethinking the Foundational Critiques,” 1987-2015 summarizes research which has found evidence that legislation enacted by Congress is similarly difficult to enforce to policy made by the Supreme Court.
[107] I expect that relevant research will be more dispersed across a wide variety of case studies, and less clearly labelled in the titles of research items as being of relevance to the evaluation of the efficacy of congressional legislation. For example, a large proportion of the entire research field of social movement impact theory evaluates these questions to some extent. There is no convenient equivalent search term to “Supreme Court.” However, replacing “Supreme Court” with “Legislation” or “Congress” and otherwise using the same search terms as this literature review appears to generate some relevant results. Even an incomplete aggregation of some of the relevant social science research could be helpful.
Articles that could be useful starting points include Robert Y. Shapiro, “Public opinion and American democracy,” Public Opinion Quarterly 75, no. 5 (2011): 982-1017 and Paul Burstein, “The Impact of Public Opinion on Public Policy: A Review and an Agenda,” Political Research Quarterly 56, no. 1 (March 2003), 29-40.
[108] For example, Marshall, Public Opinion, 147, cites Robert Weissber, Public Opinion and Popular Government (Englewood Cliffs, N.J.: Prentice-Hall, 1976), 234-7 as having found that televised presidential news appearances affect public opinion on issues by an average of nearly 17%.
[109] Benjamin Page, Robert Shapiro, and Glenn Dempsey, “What Moves Public Opinion?” American Political Science Review 81 (March 1987), 23-44 would be a good starting point for such a review.
[110] Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model Revisited (Cambridge, UK: Cambridge University Press, 2002) would be a good starting point for such a review.
[111] Some of these results may have been scored lower on either I1 or I2 if the methods and results seemed to substantially repeat the methods and results used elsewhere. Therefore a comparison of the results for I1 and I2 provides an imperfect representation of whether individual research items found stronger evidence for one or the other.
[112] Giles, Blackstone, and Vining, “The Supreme Court,” 293-306 find that the justices seem to be more affected by the public mood in non-salient than salient cases. They interpret this as evidence that the justices do not respond strategically to public opinion and that the correlation with public opinion is more likely explained by the influence of exogenous social forces.
However, Casillas, Enns, and Wohlfarth, “How Public Opinion Constrains,” 74-88 controlled for the percent of the federal budget spent on the military, a measure of policy liberalism, the Gini Index (a measure of inequality), and the homicide rate in their analysis. Though they also found that public mood has a significant effect on the non-salient cases only, they describe a theory that suggests that judges may deviate from public opinion more strongly on salient cases, because these cases “commonly involve issues where justices face the strongest competing desire to follow legal considerations or their personal ideology.” For non-salient cases, they may be less willing to risk “compromising the Court’s institutional legitimacy.”
I see no reason why salient cases should be more influenced by exogenous social forces than non-salient cases, so I find the explanation offered by Casillas, Enns, and Wohlfarth (2011) for the higher responsiveness on non-salient cases more convincing.
[113] See, for example, Ed Kilgore, “Gillibrand Offers Explicit Abortion Rights Litmus Test for Judicial Nominees” (May 7, 2019), http://nymag.com/intelligencer/2019/05/gillibrand-offers-abortion-rights-litmus-test-for-judges.html.
[114] Burstein, “The Impact of Public Opinion,” 29-40.
[115] Hettinger and Zorn, “Explaining the Incidence,” 5-28.
[116] Marshall, Public Opinion, chapter 4.
[117] Casillas, Enns, and Wohlfarth, “How Public Opinion Constrains,” 74-88 and Giles, Blackstone, and Vining, “The Supreme Court,” 293-306.
[118] Michael A. Bailey and Forrest Maltzman, The Constrained Court: Law, Politics, and the Decisions Justices Make (Princeton: Princeton University Press, 2011).
[119] On the former proposition, see the bullet point beginning “It is not clear that the mechanisms that lead…” above. On the latter proposition, see footnote 112.
[120] James W. Stoutenborough, Donald P. Haider-Markel, and Mahalley D. Allen, “Reassessing the Impact of Supreme Court Decisions on Public Opinion: Gay Civil Rights Cases,” Political Research Quarterly 59, no. 3 (2006), 419-33 found that two out of four examined gay rights cases had negative effects on public support for same-sex marriage. The effects of these two rulings on public opinion were substantial; -12% and -8% support.
Egan, Persily, and Wallsten, “Gay Rights,” 234-66 note that, in contrast to the arguments of Stoutenborough, Haider-Markel, and Allen (2006), the Gallup poll questions about opinion on legalizing gay sex around the Bowers v. Hardwick (1986) decision varied and that the results do not provide evidence of a public opinion backlash. The question in the poll shortly before the decision was preceded by other gay rights questions, whereas this was not the case in the polls shortly after the decision. Gallup polls where this question was preceded by other gay rights questions found that support was higher by nearly 10%. However, they agree that there is clear evidence that Lawrence v. Texas (2003) did disrupt the upward trend in opinion.
Wlezien and Goggin, “The Courts, Interest Groups,” 381-405 found in various analyses that New York Times reports of Supreme Court activity and the activity of anti-abortion groups (which were also encouraged by Court decisions like Webster in 1989) encouraged support for the status quo. This provides weak evidence of both a direct and indirect public opinion backlash.
Though potentially caused by confounding factors such as changing crime rates, there is also reason to believe that the Furman v. Georgia decision (which declared capital punishment, as it was practised in the US at the time, to be unconstitutional) may have encouraged a reversal of the downwards trend in support (see Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming)).
Indeed, Furman is one of the 9 Supreme Court rulings that seemed to have a negative effect on public opinion (as opposed to 3 with no effect and 6 with positive effects) in Marshall, Public Opinion, 146-7. Marshall analyzed 18 instances of polls that asked identical questions both before and after Supreme Court rulings. Marshall found that the average shift in support for the position implied by the Court’s decision before and after the ruling was only 0.06%, though the shift varied from +20% to -10%, with 8 decisions appearing to have an effect of greater than 5%.
[121] Marshall, Public Opinion, 153.
[122] See footnote 78.
[123] Jamie Harris, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion and Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming).
[124] See “Features of the anti-abortion movement” in Jamie Harris, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion#features-of-the-anti-abortion-movement and “Features of the anti-death penalty movement” in Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming).
[125] Marshall, Public Opinion, 176-9.
[126] Andrew R. Flores and Scott Barclay, “Backlash, Consensus, Legitimacy, or Polarization: The Effect of Same-sex Marriage Policy on Mass Attitudes,” Political Research Quarterly 69, no. 1 (2016), 43-56, Egan, Persily, and Wallsten, “Gay Rights,” 234-66, and Stoutenborough, Haider-Markel, and Allen, “Reassessing the Impact,” 419-33.
[127] Franklin and Kosaki, “Republican Schoolmaster,” 751-71 and Hanley, Salamone, and Wright, “Reviving the Schoolmaster,” 408-21.
[128] Christenson and Glick, “Issue-specific Opinion Change,” 881-905 and Katerina Linos and Kimberly Twist, “The Supreme Court, the Media, and Public Opinion: Comparing Experimental and Observational Methods,” The Journal of Legal Studies 45, no. 2 (2016), 223-54.
In slight contrast, Zilis, The Limits of Legitimacy, 153-4 notes that, “[b]efore the Supreme Court’s health care ruling, respondents were divided in their views about the ACA. Roughly 45 percent of respondents indicated they disapproved of it (with nearly two-thirds expressing ‘strong’ disapproval, and 55 percent indicated they approved (with only one-third expressing ‘strong’ approval). When asked about their views regarding the law’s constitutionality, respondents were more unsympathetic: about 63 percent judged the law to be unconstitutional.” Zilis notes, however, that the sample had a “Democratic bias,” which may help to explain the slightly higher support found in his sample.
[129] Rebecca J. Kreitzer, Allison J. Hamilton, and Caroline J. Tolbert, “Does Policy Adoption Change Opinions on Minority Rights? The Effects of Legalizing Same-sex Marriage,” Political Research Quarterly 67, no. 4 (2014), 795-808.
[130] Emily Kazyak and Mathew Stange, “Backlash or a Positive Response? Public Opinion of LGB Issues after Obergefell v. Hodges” (2018), https://digitalcommons.unl.edu/cgi/viewcontent.cgi?article=1526&context=sociologyfacpub.
[131] Bartels and Mutz, “Explaining Processes,” 249-61.
[132] Franklin and Kosaki, “Republican Schoolmaster,” 751-71 and Hanley, Salamone, and Wright, “Reviving the Schoolmaster,” 408-21.
[133] Stoutenborough, Haider-Markel, and Allen, “Reassessing the Impact,” 419-33 and Egan, Persily, and Wallsten, “Gay Rights,” 234-66.
[134] Margaret E. Tankard and Elizabeth Levy Paluck, “The Effect of a Supreme Court Decision Regarding Gay Marriage on Social Norms and Personal Attitudes,” Psychological Science 28, no. 9 (2017), 1334-44.
[135] Hoekstra, Public Reaction. Only one of these changes actually seems to have had a significant effect on public opinion. The sample sizes in the 4 panel studies are very small, with 93, 88, 24, and 59 participants. The two studies with the smallest numbers of participants did not show significant differences in support for the Court’s ruling; insufficient statistical power may have prevented substantial change from being detected. A variety of other analyses are carried out, almost all of which fail to find statistically significant differences when this is tested for. Given the small sample sizes, I place little weight on these non-findings.
[136] Stoutenborough, Haider-Markel, and Allen, “Reassessing the Impact,” 419-33 and Egan, Persily, and Wallsten, “Gay Rights,” 234-66.
[137] Franklin and Kosaki, “Republican Schoolmaster,” 751-71 and Hanley, Salamone, and Wright, “Reviving the Schoolmaster,” 408-21.
[138] These were:
Hoekstra, “The Supreme Court and Opinion Change,” 109-29,
Nicholson and Hansford, “Partisans in Robes,” 620-36,
Bishin, Hayes, Incantalupo, and Smith, “Opinion Backlash,” 625-48,
Fontana and Braman, “Judicial Backlash,” 731-99, and
Flores and Barclay, “Backlash, Consensus,” 43-56.
[139] Higher pre-decision public support might be weakly correlated with pre-decision awareness or intensity of opinion, which might plausibly increase backlash.
[140] Michael J. Klarman, From the Closet to the Altar: Courts, Backlash, and the Struggle for Same-Sex Marriage (Oxford: Oxford University Press, 2013), 169 argues this point. See also “Homosexuals should have the right to marry (agree/disagree),” National Opinion Research Center, accessed September 25, 2019, https://gssdataexplorer.norc.org/trends/Gender%20&%20Marriage?measure=marhomo.
[141] Mildred A. Schwarz, “Trends in White Attitudes toward Negroes” (1967), http://www.norc.org/PDFs/publications/NORCRpt_119.pdf, 25-6. Rosenberg, The Hollow Hope, 127 points to low support for desegregation in the South after the ruling (24% approval in July 1954) and again in June 1961, but also does not have information about approval shortly before the ruling. On page 128, Rosenberg notes that “[q]uestions were not asked regularly and the pre-1954 data are sketchy.”
[142] Jamie Harris, “Social Movement Lessons From the US Anti-Abortion Movement” (November 26, 2019), https://www.sentienceinstitute.org/anti-abortion and Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming).
[143] Jamie Harris, “Social Movement Lessons From the US Anti-Death Penalty Movement” (forthcoming).
[144] Taylor Grant and Matthew J. Lebo, “Error Correction Methods with Political Time Series,” Political Analysis 24, no. 1 (2016), 3-30.
[145] Marshall, Public Opinion.
[146] Ignani and Meernik, “Explaining Congressional Attempts,” 353-71.
[147] This might happen if, for example, the Supreme Court sought to present a united front on a potentially controversial issue. Baum and Devins, “Why the Supreme Court Cares,” 1525-6 suggest that this happened in the United States v. Nixon (1974) ruling on the Watergate scandal and the Brown v. Board of Education (1954) ruling on desegregation.
[148] Intuitively, the more prominent and socially important a case is, the more likely that interest groups will seek to influence its outcome through amicus briefs and the more likely Congress is to seek to reverse the outcome, if it disapproves.