Vol. 14 No. 1 (January 2004)
PUBLIC REACTION TO SUPREME COURT DECISIONS by Valerie J. Hoekstra. New York: Cambridge University Press, 2003. 177 pp. IBSN: 0-521-82058-8.
Reviewed by Margaret S. Hrezo, Department of Political Science, Radford University. firstname.lastname@example.org
Implementation of and compliance with Supreme Court decisions has blossomed as a research field in the past 20 years. Despite all the work done, however, reading through the findings is a frustrating experience. The studies vary widely in the types of decisions chosen for study, the quality of the research design, and the results. Ultimately, the reader is left wondering if there is any way to formulate a coherent picture of either public reaction to the Court or its effect on public values and behavior. Thus, Valerie Hoekstra's book is a welcome addition to this body of literature. Her research design is excellent. Her review of the relevant literature is insightful and intelligent. She uses an inter-disciplinary approach that demonstrates good understanding of the relevant social psychology, political psychology, and persuasion literature and she understands that substance and theory are as important as methodology.
Hoekstra begins with the premise that the bulk of the Supreme Court's work consists of "ordinary" cases. It is these cases, she argues, that researchers should study in order to understand the nature and extent of public support for the Court and the role of specific decisions in building or losing that support. She focuses on four cases: LAMB'S CHAPEL v. CENTER MORICHES FREE UNION SCHOOL DISTRICT (1993), BOARD OF EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL DISTRICT v. GRUMET (1994), OKLAHOMA TAX COMMISSION v. CHICKASAW NATION (1995), and BABBITT v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON (1995). Hoekstra's substantive thesis is the simple but powerful idea that the public is more attentive to the work of the Supreme Court than researchers usually suppose. Thus, in the end, "court decisions matter" (p.145). If information about decisions is available, and citizens are sufficiently motivated by the issues to learn about them, then public awareness of the Court and its work increases. Although Hoekstra finds very little evidence that the Court can shape public opinion, her findings support the notion that decisions do change some people's views of the Court. In addition, those who are initially receptive to the position adopted by the Court's decision tend to become more supportive of the Court after the decision, while those on the other side of the issue become less supportive. Thus, "the Court's political capital appears expendable and … people appear to evaluate the Court based on its actions" (p.30).
Research on the relationship between public opinion and the Supreme Court's normal workload is important. These are the cases that clarify "how the Court's past decisions apply to the current controversies" (p.33). For years it has seemed to me that some researchers either have set up straw figures to demolish or have not understood the complexity involved in measuring the impact of Supreme Court decisions. Why would anyone who has followed the development of constitutional law, especially law involving the Bill of Rights, be surprised that Supreme Court decisions-whether controversial or otherwise-were not always fully and immediately implemented? To see this, one need look no further than the evolution of school desegregation, voting rights, or abortion law. The predominant pattern in response to any controversial decision has been evasion, not compliance. Disputes over "activism" and "self-restraint" have been much more important to political scientists than to citizens. For better or worse, citizens care about a decision's effect on their values (most frequently) and material interests (importantly, but less frequently). Activism and restraint become code words for outcomes with which they agree or disagree.
In controversial cases, implementation usually has required hard, steady work over a series of decisions and a number of years by all three branches. Isn't this the way it is supposed to be in a deliberative democracy? In theory, the American system of government operates as a conversation among three separate, power-sharing and co-equal institutions. Thus, it would seem that the best way to study the effectiveness of the Supreme Court is to look at the entire body of case law in a policy area and the interactions among the Court, congress, executive branch departments, and public opinion.
This approach never has been popular. Instead, although many legal researchers continue to hold as their touchstone Robert Dahl's conclusion that the Supreme Court normally acts to legitimate the policy choices of the dominant political coalition, political science research has addressed Dahl's other conclusion-that sometimes the Court lags behind or pulls ahead of public opinion. Studies typically focus on controversial decisions and, until relatively recently, usually conclude that Court decisions have limited, if any, effects. Yet, it is precisely when a Court majority momentarily pulls ahead of or lags behind dominant social opinion on a subject that controversy erupts and refusal to comply is most likely to occur. In reality, controversy and intentional non-compliance neither render the decision unimportant nor mean that a decision does not matter. Controversy and non-compliance highlight the difficulties of policy making in a deliberative democracy and the importance of public opinion. Controversial decisions may polarize opinion or contribute to pre-existing polarization; yet, that does not mean courts should avoid them. They become part of a continuing conversation about politics-about the people's things.
Beyond the substantive argument, however, is an epistemological one. For many years, political scientists have ignored major parts of what might be the "political" and lost sight of politics as an autonomous sphere of life. Sartori summed up well this feature of political science when he wrote: "the scientific urge of the behavioral approach makes the autonomy of politics questionable again" (1974; see also Almond, 1988). The methodological wars in political science ended some time ago. Quantitative method won the field. What has been the result? In 1971, Robert Dixon wrote "To the extent that political science minimizes substantive public law and focuses on measurement and numerology, it leaves substantive matters to the still pragmatically oriented law professors" (Dixon 1971, 25). The trend Dixon feared is firmly entrenched in contemporary constitutional law. The discipline writes only for itself and isolates itself more and more firmly from the genuine world of politics in which real human beings live. It pulls off parts and considers them the whole. It studies specimens, not experiences or consciousness. Consequently, our discipline becomes increasingly irrelevant. Often, there are far more conceptually interesting, thought-provoking, and relevant articles on jurisprudence and law in the law reviews than in the political science journals. Dixon's question of thirty years ago still is relevant today. "How abstract can a profession become and still serve society" (Dixon 1971, 25)?
Hoekstra overcomes many of these problems by combining a sound methodological approach with concern for the concrete, the subtle, and the gradual. Her goal is to "help shed light on the nature of the relationship between the Supreme Court and public opinion by taking the logic of the experimental approach and implementing it in the context of a real-world situation" (p.4). To this end, she focuses on those communities where the controversies began that ultimately reached the U.S. Supreme Court-i.e., the social and political context that gave rise to the original conflict. She wants to study experiences, not specimens. She does look at pieces, but the overall motivating concern is for the whole. She sees the political as an autonomous sphere, but one influenced by many other aspects of life. Persuasion, she argues, "is a complicated process" (p.10), involving not only issues of saliency and intensity but also diffuse and specific support. Thus, it is unrealistic to expect "uniform patterns of persuasion across all individuals" (p.93). The possibility for persuasion depends on both individual and source characteristics (p.93). Prior research efforts have fallen short, she maintains, because emphasis on national and aggregate data "obscures individual and local patterns" (p.55).
Hoekstra advocates use of panel studies as a better approach because such studies can be timed to the Court's calendar and provide analysis at the individual level-the level at which persuasion does or does not take place. Panel studies combine the advantages of both survey methodology and the experimental approach. The use of panels allows a researcher to take measurements before and after a decision, structure questions about specific issues in more meaningful and precise ways, and to better understand why citizens respond the way they do. This methodology is well suited to testing her argument that "a better understanding of the effects of Court decisions on public opinion is important to a more complete understanding of the more general relationship between the Court and public opinion" (pp.3-4).
This reviewer believes she has provided excellent support for her argument and much food for thought for researchers interested in the impact of and compliance with court decisions. The book, however, is not without flaws. First, her use of the term theory is very loose. Second, although the methodology she has chosen is appropriate and well done, it also is expensive, time-consuming, and difficult to replicate. It takes many, many panel studies to justify generalizations. But, to be genuinely useful, this is the way behavioral research should be conducted in this area. If the goal of social science is, as she maintains, "to provide general theories and common explanations," we have a very long way to go. If, however, the goal of social science is to make the people's things more understandable and relevant, this kind of research will produce much more meaningful benefits than large aggregate studies. Finally, the book also has some stylistic problems worth noting. It reads a little too much like a doctoral dissertation and contains too many colloquial phrases such as "the bottom line." Her periodic references to BUSH v. GORE (2000) serve more to muddy the argument than to illuminate it. But, these are minor quibbles.
There is one more important problem. From time to time she makes logical jumps that may be too broad. For example, she contends that greater exposure to information "should help solidify their [citizens'] beliefs about the issues" (p.58). She discusses this idea, but the logic is not particularly convincing. Logically, it would seem, increased exposure to information could lead to a variety of outcomes. Another example can be found among her conclusions. She argues that because the Court must "rely on public acceptance-frequently, local acceptance-for implementation of its decisions . . . [the Court may need to] consider prevailing opinion when deciding whether to accept cases and how to decide these cases" (p.153). The logic here does not seem to recognize the differences (differences she discusses at several points in the book) between the Court and other political actors. A more appropriate conclusion might be the one she reaches on the previous page: "we cannot overlook the possibility that the Court simply does not act as a persuasive political actor" (p.152). For 200 years the United States Supreme Court has been America's dumping ground for political hot potatoes. It is the place we go when persuasion fails. We ask the Court to read the law and make a decision because either there is no prevailing public opinion or because public opinion on the issue potentially may be incorrect. Yes, its job is to add its voice to the conversation as persuasively as possible. Yes, most frequently the Court will legitimate the work of the dominant political coalition. Yes, the Court's effectiveness in some ways depends on an expendable reservoir of public good will. However, the paradox of the American Court system is that, in the end, the ability to persuade is not the point. The Court's goal is to play its role well in the deliberative process. That goal should not be overlooked in the study of public reaction to its efforts.
Almond, Gabriel. 1988. "Separate Tables: Schools and Sects in Political Science." 21 PS: POLITICAL SCIENCE AND POLITICS 828-842.
Dixon, Robert G. Jr. 1971. "Who Is Listening? Political Science Research in Public Law." 4 PS 19-26.
Sartori, Giovanni. 1974. "Philosophy, Theory and Science of Politics." 2 POLITICAL THEORY 133-62.
BABBITT v. SWEET HOME CHAPTER OF COMMUNITIES FOR A GREAT OREGON, 515 U.S. 687 (1995).
BOARD OF EDUCATION OF KIRYAS JOEL VILLAGE SCHOOL DISTRICT v. GRUMET, 512 U.S. 687 (1994).
BUSH v. GORE, 531 US 98 (2000).
LAMB'S CHAPEL v. CENTER MORICHES FREE UNION SCHOOL DISTRICT, 508 U.S. 384 (1993).
OKLAHOMA TAX COMMISSION v. CHICKASAW NATION, 515 U.S. 450 (1995).
Copyright 2004 by the author, Margaret S. Hrezo.
Back To LPBR Home