An excerpt from Why the Supreme Court Cares About Elites, Not the American People

An excerpt from Professor Neal Devins’s article, Why the Supreme Court Cares About Elites, Not the American People, co-authored with Lawrence Baum, (Georgetown, forthcoming 2010), is below.  For the full article, please click here.
Unlike political scientists and law professors who link Supreme Court decision making to public opinion, we argue that Supreme Court Justices care more about the views of academics, journalists, and other elites than they do about public opinion.  This is true of nearly all Justices and is especially true of swing Justices, who often cast the critical votes in the Court’s most visible decisions.

Our argument is grounded in social psychology. In particular, we argue that Supreme Court Justices are not single-minded maximizers of legal or policy preferences. Instead, Justices seek both to advance favored policies and to win approval from audiences they care about. These audiences may include the public but are more likely to include elites—individuals and groups that have high socioeconomic status and political influence.  The primary reason is that Supreme Court Justices themselves are social and economic elites. As such, they are likely to care a great deal about their reputations among other elites, including academics, journalists, other judges, fellow lawyers, members of other interest groups, and their friends and neighbors.

This view leads us to a different conception of the forces that shape the Court from the one expressed by most political scientists as well as legal scholars such as Barry Friedman and Jeff Rosen. As those scholars see it, the Justices are devoted to achieving what they see as the best legal policies, and they deviate from their most preferred policies only for strategic reasons—that is, when doing so advances those policies in the long run. Thus, to take one important example, the Justices accede to public opinion in order to maintain the Court’s legitimacy and its ability to make legal policy effectively.

In our view, in contrast, the Justices have concerns other than maximizing the achievement of their preferred legal policies, and prominent among those concerns is their interest in the regard of other people who are important to them. When the Justices deviate from their preferred legal policies, it may be because of strategic considerations, and some of these considerations relate to public opinion. However, it is more often the case that Justices are influenced by the views of other elites who are important to them for personal rather than strategic reasons. Thus, we agree with the scholars who emphasize that the Justices are primarily motivated by what they regard as good law or good policy; we disagree on the reasons that Justices sometimes deviate from the positions that they prefer.

Our argument proceeds in three parts. Part I calls attention to the various ways in which the Supreme Court is shaped by social and political forces, including changing social norms, appointments to the Court, and backlash from elected officials.  Part II sets forth the social psychology model that we employ and, in so doing, criticizes the dominant political science models for failing to take account of the fact that Supreme Court Justices may care a great deal about what people in their social and professional networks think of them.  Part III backs up this claim, calling attention both to the limited influence of the mass public and to evidence suggesting that the Court is more attentive to the views of elites. Part III will also provide empirical support for the so-called “Greenhouse effect”—the pattern in which some Supreme Court Justices have drifted away from the conservatism of their early votes and opinions towards the stated preferences of cultural elites, including left-leaning journalists and the what some people think of as the liberal legal establishment that dominates at elite law schools.

Supreme Court Justices enjoy a high level of independence from their political and social environment. Neither mass public opinion, the views of relevant elite groups, nor any other segment of the world outside the Court has control over the Justices’ choices. Because of that independence, the most powerful determinants of the Court’s decisions are the Justices’ own concep­tions of good law and good policy.

Even so, to a great extent the Court is a majoritarian institution, in that its policies tend to coincide with the preferences of policy makers in the other branches of government and those of the country as a whole. This tendency results from several different processes, including the appointments of Justices, pressures on the Court from Congress and the Executive Branch, and the effects of societal developments on the Justices’ thinking.

Scholars frequently identify another source of majoritarianism, the direct influence of the general public on the Justices. That influence is thought to derive primarily or solely from the Justices’ concern with their legitimacy. For reasons discussed above and in much greater detail in our published article, we think the legitimacy rationale is unpersuasive.  The Justices have little incentive to follow the will of the people and the Court as a whole has demonstrated considerable independence from public opinion.

In contrast, the Justices have strong incentives to maintain their standing with the elite audiences that are salient to them. Fundamentally, those incentives derive not from concern about support for the Court as an institution but from the human need for approval from individuals and groups that are important to them. Because the individuals and groups most salient to the Justices are overwhelmingly from elite segments of American society, it is the values and opinions of elites that have the greatest impact on the Justices. This is one important reason why Court decisions typically accord with the views of the most educated people better than they do with the views of the public as a whole. More to the point, the Justices advance their personal preferences by attending both to their preferred vision of legal policy and to the reference groups that matter most to them. Consequently, although the Justices will not diverge sharply from policy positions they strongly favor, the departures they do make are more likely to reflect their personal reference groups than the popular will.