382 CHAPTER 12|THE COURTS
confi rmed this to be largely the case,^41 especially in recent years when
Supreme Court nominations have become more political and more
important to the public.^42
The second mechanism through which public opinion may infl uence
the Court is somewhat more direct: when the public has a clear position
on an issue that is before the Court, the Court tends to agree with the
public.^43 Several high-profi le examples support the idea that the Court
is sensitive to public opinion: the Court’s switch during the New Deal
in the 1930s to support Roosevelt’s policy agenda after standing in the
way for four years, giving in to wartime opinion to support the intern-
ment of Japanese Americans during World War II, limiting an accused
child molester’s right to confront his accuser in a courtroom, and declar-
ing that laws limiting sex between consenting gay adults were unconsti-
tutional. In each of these cases the justices refl ected the current public
opinion of the nation rather than a strict reading of the Constitution or
the Founders’ intent.
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.^44
Others have argued that the Court rarely changes its views to refl ect pub-
lic opinion, but at a minimum the evidence supports the notion that the
Court is usually in step with the public.Conclusion
The judicial branch as a whole contains a paradox: it may simultaneously be seen
as the least democratic and the most democratic branch of government.^45 The least
democratic aspect is obvious: federal judges and many state and local judges are
unelected and are not accountable to voters (except indirectly through the leaders
who appoint them). But the courts can also be seen as the most democratic branch.
Cases that are brought to the courts come from the people, and as long as the legal
criteria for bringing a case are met, the courts must hear those cases. Although
only a small fraction of the cases brought to the Supreme Court are heard, the
court system as a whole may be seen as providing an important outlet for partici-
pation in our political system.
The courts also demonstrate that politics is confl ictual. Although plenty of
unanimous Supreme Court decisions do not involve much confl ict among the jus-
tices, many landmark cases deeply divide the Court on constitutional interpre-
tation and how to balance those competing interpretations against other values
and interests. These confl icts in the Court often reveal deeper fault lines in the
broader political system.
It shouldn’t be surprising that political process matters in the courts. The
rules of courtroom procedures, including how evidence is gathered and presented,
can have an important impact on outcomes. If lawyers do not follow these proce-
dural rules, a case that otherwise could have been won, might be thrown out byHIGH SCHOOL STUDENTS IN MAIZE,
Kansas, join hands around a
fl agpole at the annual nationwide
event calling Christian youth
to preclass schoolyard prayer
at the start of the new school
year. Enforcing the prohibition of
school prayer and drawing the
line between permissible and
impermissible prayer have both
been diffi cult for the Court.