College of William & Mary Law School
Scholarship Repository - Faculty Publications Faculty Scholarship
2010
Why the Supreme Court Cares About Elites, Not the American People
Lawrence Baum, Neal Devins
INTRODUCTION
Supreme Court Justices care more about the views of academics, journalists, and other elites than they do about public opinion. This is true of nearly all Justices and is especially true of swing Justices, who often cast the critical votes in the Court’s most visible decisions. In this Article, we will explain why we think this is so and, in so doing, challenge both the dominant political science models of judicial behavior and the significant work of Barry Friedman,1 Jeffrey Rosen,2 and others who link Supreme Court decision making to public opinion.
Our argument is grounded in social psychology. In particular, we will argue that Supreme Court Justices are not single-minded maximizers of legal or policy preferences.3 Instead, Justices seek both to advance favored policies and to win approval from audiences they care about. These audiences may include the public but are more likely to include elites—individuals and groups that have high socioeconomic status and political influence. The primary reason is that Supreme Court Justices themselves are social and economic elites. As such, they are likely to care a great deal about their reputations among other elites, including academics, journalists, other judges, fellow lawyers, members of other interest groups, and their friends and neighbors.
This view leads us to a different conception of the forces that shape the Court from the one expressed by legal scholars such as Friedman4 as well as by many political scientists.5 As those scholars see it, the Justices are devoted to achieving what they see as the best legal policies, and they deviate from their most preferred policies when doing so advances those policies in the long run. Thus, to take one important example, the Justices accede to public opinion in order to maintain the Court’s legitimacy and its ability to make legal policy effectively.6
In our view, in contrast, the Justices have concerns other than maximizing the achievement of their preferred legal policies, and prominent among those concerns is their interest in the regard of other people who are important to them. When the Justices deviate from their preferred legal policies, it may be because of strategic considerations, some of which relate to public opinion. However, it is more often the case that Justices are influenced by the views of other elites who are important to them for personal rather than strategic reasons. Thus, we agree with the scholars who emphasize that the Justices are primarily motivated by what they regard as good law or good policy; we disagree on the reasons that Justices sometimes deviate from the positions that they prefer.
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Repository Citation
Baum, Lawrence and Devins, Neal, "Why the Supreme Court Cares About Elites, Not the American People" (2010). Faculty
Publications. Paper 1116.
http://scholarship.law.wm.edu/facpubs/1116
Copyright c 2010 by the authors. This article is brought to you by the William & Mary Law School Scholarship Repository.
http://scholarship.law.wm.edu/facpubs
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NOTA DESTE BLOGGER:
Nos Estados Unidos? Eu pensei que fosse o STF em Pindorama.
