SUPREME COURT DECISION MAKING| 381fl ag burning or defendants’ rights. Political liberals may be the
opposite—calling for judicial restraint on the fi rst set of cases but
activism in protecting civil liberties. Sometimes, the popular media
mistakenly assert that liberal justices are more activist than con-
servative justices. In fact, though, that is not always the case. The
current Court is quite conservative, but it is also activist.^40
The separation of powers continues to play a role after the jus-
tices have issued their rulings. In some instances the Court can
force its view on the other branches; in other cases it needs their
support to enforce its decisions. Some decisions are nearly self-
enforcing because of their visibility and narrow application. For
example, in 1974 Richard Nixon had to go along with the Court
ruling forcing him to give up his secret tapes in the Watergate
investigation or else face impeachment. Yet the Court’s lack of
enforcement power is especially evident when a ruling applies
broadly to millions of people who care deeply about the issues.
Consider school prayer, which still exists in hundreds of public
schools despite having been ruled unconstitutional over forty
years ago. It is impossible to enforce the ban unless someone in a
school complains and brings a lawsuit.
The president and Congress often fi ght back when they think
the Court is exerting too much infl uence, which can limit the
Court’s power as a policy-making institution. For example, the
president can fail to enforce a decision vigorously, and Congress
can block appointments it disagrees with, limit the jurisdiction of
the federal courts, change the size of the Court, or even impeach
a judge. The latter three options are rarely used. The most com-
mon way for Congress to respond to a Court decision that it dis-
agrees with is to pass legislation that overturns the decision (if
the case concerns the interpretation of a law). In general, the
Court avoids stepping on the toes of the other branches unless it
is absolutely necessary. The Court often exercises self-imposed
restraint and refuses to act on “political questions”—issues that
are outside the judicial domain and should be decided by elected
offi cials.
OUTSIDE INFLUENCES: INTEREST
GROUPS AND PUBLIC OPINION
Finally, there are external infl uences on the Court, such as pub-
lic opinion and interest groups. We have already talked about the
role of interest groups in fi ling amicus briefs. When it comes to the
Court, this is the only avenue of infl uence open to interest groups;
other tactics such as lobbying or fund-raising are either inappro-
priate 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 offi cials do. However, there are several indirect ways that the
Court expresses the public’s preferences.
The fi rst indirect way involves the fact that the public elects the president
and the Senate, who appoint and confi rm the justices. Therefore, sooner or later,
the Court should refl ect the views of the public. Work by political scientists hasThomasScaliaAlitoRobertsKennedyBreyerGinsburgSotomayorStevensLiberal Conservative–5 –4 –3 –2 –1 0 1 2 3 4 5Source: Alexander Tahk and Stephen Jessee, Supreme Court Ide-
ology Project, http://sct.tahk.us/current.html (accessed 10/2/12).IDEOLOGY OF SUPREME COURT
JUSTICES, 2010Notice that the estimates of the justices’ ideology
vary in their precision. What might explain
the relatively tight distribution for Breyer or
Kennedy, compared to the broad distribution for
Sotomayor?