520 Chapter 14Chapter 14 || The CourtsThe Courtsmood” and Court opinions correlated very highly between 1956 and 1981, but their
association was weaker through the rest of the 1980s.^71 One scholar found that three-
fifths to two-thirds of Supreme Court decisions are consistent with public opinion
when the public has a clear preference on an issue.^72 More recent work demonstrates
that the Court is constrained by public opinion, in part because it may fear resistance
to implementing an unpopular decision.^73
Several high-profile examples support the idea that the Court is sensitive to public
opinion: the Court switched during the New Deal in the 1930s to support Roosevelt’s
policy agenda after standing in the way for four years, gave in to wartime opinion
to support the internment of Japanese Americans during World War II, limited an
accused child molester’s right to confront his or her accuser in a courtroom, and
supported same-sex marriage. In each of these cases, the justices reflected the current
public opinion of the nation rather than a strict reading of the Constitution or the
Founders’ intent. On the other hand, there are plenty of decisions in which the Court
has stood up for unpopular views, such as banning prayer in schools, allowing flag
burning, and protecting criminal defendants’ rights.
Sometimes the Court may shift its views to reflect international opinion. The most
recent example struck down the death penalty for minors in 12 states. Ruling by a
5–4 vote that the execution of 16- or 17-year-olds violated the Eighth Amendment’s
prohibition against “cruel and unusual punishments,” the majority opinion
overturned a 1989 case and said that the new decision was necessary to reflect the
“evolving standards of decency” concerning the definition of “cruel and unusual
punishments.” Justice Kennedy, who had voted on the other side of this issue 16 years
earlier, wrote: “It is fair to say that the United States now stands alone in a world that
has turned its face against the juvenile death penalty.” Justice Kennedy said that
although the Court was not obligated to follow foreign developments, “it is proper that
we acknowledge the overwhelming weight of international opinion” for its “respected
and significant confirmation for our own conclusions.”^74 This explicit recognition of
the role of public opinion firmly placed a majority of the Court on the side of the “living
Constitution” perspective on this issue, while rejecting the strict constructionist view
of the dissenters.
Another way that the Court may consider the public mood is to shift the timing of
a decision. The best example here is the landmark school desegregation case, Brown
v. Board of Education (1954), that the Court sat on for more than two years—until after
the 1952 presidential election—because it didn’t think the public was ready for its
bombshell ruling.^75 Others have argued that the Court rarely changes its views to reflect
public opinion,^76 but at a minimum the evidence supports the notion that the Court is
usually in step with the public.“Why
Should
I Care?”
Shouldn’t the Court be neutrally applying the words of the Constitution to the cases
it hears? While a normatively appealing view, this textualist view ignores many of the
realities of how the Court actually operates. Justices often let their own political views
shape their decisions, but more neutral forces such as precedent and deferring to the
elected branches also play important roles. A realistic perception of the various factors
that go into a justice’s decision can help you understand why the Court strikes down
some laws and upholds others.Full_15_APT_64431_ch14_488-529.indd 520 16/11/18 1:46 PM