The Supreme Court as a Countermajoritarian Institution? The Impact of Public Opinion on Supreme Court Decisions

Abstract

Although normative questions about the role of the Supreme Court as a countermajoritarian institution have long excited controversy in democratic theory, empirical questions about how far the Court acts contrary to majoritarian opinion have received less attention. Time series analyses for the period 1956–89 indicate the existence of a reciprocal and positive relationship between long-term trends in aggregate public opinion and the Court's collective decisions. The Court's ideological composition changes in response to previous shifts in the partisan and ideological orientation of the president and Congress. The Court also responds to public opinion at the margins even in the absence of membership change. Since 1981, the relationship has vanished or turned negative in direction. The Court's ideological balance has been upset by an unbroken string of conservative-to-moderate appointments, thereby undermining the dynamics that promote judicial responsiveness and raising questions about the majoritarianism of the contemporary and future Court.