Supreme Court decision making 519calculations about the preferences of the other justices, the president, and Congress;
the choices that other justices are likely to make; and the institutional context within
which they operate. After all, justices do not operate alone: at a minimum, they need
the votes of four of their colleagues if they want their position to prevail. Therefore, it
makes sense to focus on the strategic interactions that take place to build coalitions.
The median voter on the Court—the one in the middle when the justices are
arrayed from the most liberal to the most conservative—has an especially influential
role in the strategic model. For many years, the median justice was Sandra Day
O’Connor; when Samuel Alito replaced her, Anthony M. Kennedy became the new
median justice. The four conservatives to his right (Thomas, Scalia, Roberts, and
Alito) and the four liberals to his left (Breyer, Ginsburg, Souter, and Stevens) all
wanted to attract his vote. When Justice Sotomayor replaced Justice Souter, Justice
Kagan replaced Justice Stevens, and Justice Gorsuch replaced Justice Scalia, Kennedy
remained the median voter on the Court (because Souter, Sotomayor, Stevens,
and Kagan were all to his left and Gorsuch and Scalia were both to his right). When
Kennedy retired and Brett Kavanaugh took his place, Roberts became the median
and the center of the Court stayed in roughly the same place. Research shows that
at least one justice switches his or her vote at some stage in the process (from the
initial conference to oral arguments to the final vote) on at least half of the cases, so
strategic bargaining appears to be fairly common.^67 Our earlier discussion of opinion
assignment and writing opinions to attract the support of a specific justice is more
evidence in support of the strategic model.Separation of Powers Another political influence on justices’ decision making
is their view of the place of the Court with respect to the democratically elected
institutions (Congress and the president). Specifically, do they favor an activist or
a restrained role for the Court? Advocates of judicial restraint argue that judges
should defer to the elected branches and not strike down their laws or other actions.
In contrast, advocates of judicial activism argue that the Court must play an active
role in interpreting the Constitution to protect minority rights even if it means
overturning the actions of the elected branches. (We will discuss these views in more
detail later in the chapter.)Outside Influences: Interest Groups and Public Opinion Finally, there are
external influences on the Court, such as public opinion and interest groups. We have
already talked about the role of interest groups in filing amicus briefs. This is the only
avenue of influence open to interest groups; other tactics such as lobbying and fund-
raising are either inappropriate or irrelevant (because justices are not elected). The role
of public opinion is more complex. Obviously, justices do not consult public-opinion
polls the way elected officials do. However, the Court expresses the public’s preferences
in several indirect ways.
The first was most colorfully expressed by Mr. Dooley, a fictional Irish-American
bartender whom newspaper satirist Finley Peter Dunne created in 1898. Mr. Dooley
offered keen insights on politics and general social criticism, including this gem
on the relationship between the Supreme Court and the public: “th’ supreme coort
always follows th’ iliction returns.”^68 That is, the public elects the president and the
Senate, who nominate and confirm the justices. Therefore, sooner or later, the Court
should reflect the views of the public. Subsequent work by political scientists has
confirmed this to be largely the case,^69 especially in recent years, when Supreme
Court nominations have become more political and more important to the public.^70
The second mechanism through which public opinion may influence 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. One study found that the “publicjudicial restraint
The idea that the Supreme Court
should defer to the democratically
elected executive and legislative
branches of government rather than
contradicting existing laws.judicial activism
The idea that the Supreme Court
should assert its interpretation of the
law even if it overrules the elected
executive and legislative branches of
government.The Supreme Court, of course,
has the responsibility of
ensuring that our government
never oversteps its proper
bounds or violates the rights of
individuals. But the Court must
also recognize the limits on itself
and respect the choices made by
the American people.—Justice Elena KaganFull_15_APT_64431_ch14_488-529.indd 519 16/11/18 1:46 PM