by Nathaniel Persily, Jack Citrin, and Patrick J. Egan (eds). Oxford and New York: Oxford University Press, 2008. 376pp. Hardback. $99.00/£60.00. ISBN: 9780195329414. Paperback. $29.95/£15.99. ISBN: 9780195329421.
Reviewed by Robert M. Howard, Department of Political Science, Georgia State University. Email: polrhh [at] langate.gsu.edu.
Analyzing the impact of public opinion on the Supreme Court, the counter impact of the Court on public opinion, and the reasons for support for the Court has been something of a growth industry in Political Science over the past several years. As Franklin and Kosaki (1989) note, most literature dealing with the Supreme Court and public opinion consists of studies dealing with the impact of public opinion on the Supreme Court. This literature is consistent with the broad theories propounded by Democratic theorists, and is an attempt to prove or disprove the responsiveness of the Court to majority opinion. While it is less frequently done, other scholars have written on the impact of the Court on public opinion. This book is an attempt to expand and add to the literature of this area with some discussion at the end of the impact of BUSH v. GORE and the subsequent impact of the case on support for the Court, the third area of public and opinion and court research.
Besides presenting an overview of public response to Supreme Court constitutional opinions, the editors and the authors of these articles want to add to the debate on what the editors call “popular constitutionalism.” The argument is that Supreme Court decisions should not be the dominant mode of constitutional interpretation, but instead should be one point in a debate that includes the public. Much of the data and analyses of the chapters shows that the Court decision is often just a starting point and that there is often little impact on public opinion.
In addition to the work of the editors, professors of law and political science, many of the chapters are written by U.C. Berkeley Ph.D. candidates or recent graduates of the program. After the introduction there are 14 solo authored or co-authored chapters, each covering a controversial political or social area over which the United States Supreme Court has issued opinions. The chapters sequentially cover civil liberties, including a look at the war on terror, civil rights including desegregation and affirmative action, criminal jurisprudence, federalism, the takings clause and the 2000 election controversy. Thus almost the full panoply of the bill of rights including the 10th amendment and the 5th Amendment takings clause is encompassed by the book.
Each chapter follows a similar format. First is a review of the major decision or decisions. Then the author or authors introduce data and information on public reaction to the decision and the constitutional issue. The contributors include not just public opinion data but [*878] also evidence of media attention following the Court decision. Many of the chapters then include a multivariate analysis that separates the many factors that go into support or opposition to the particular controversy or court opinion. There does not appear to be any logical order to the chapters with social issues, criminal issues and civil rights issues mixed throughout the book.
While individual author techniques and voices are evident, the book has been nicely edited to a coherent whole, with each chapter following a similar format and style. Some of the chapters, depending upon issue area, offer more of a historical than contemporary analysis particularly if the Court has not issued a ruling in the area for several years. The strength and weakness of each chapter and the interest that each may have for particular readers depends less on the content of the chapters and more on the available data for the particular issue and the particular time period of the constitutional controversy, although chapter length does not depend on available information. As one editor, Nathaniel Persily notes in the introduction, “the particular mix and order of questions on a given survey, the timing and frequency of surveys and the particular wording of the relevant questions present inescapable limitations on this book” (p.7).
For example the first several chapters deal with issues with a lot of data and research in the particular areas. The first chapter by Murakami focuses on responses to BROWN v. BOARD OF EDUCATION in the 1954 to 1961. Thus the chapter uses historical data, but plunges into a very prominent controversy over the ability of the courts to effect social change and finds limited effects on public opinion. Thus even though the chapter delves into a controversy now over 50 years old, it has relevance for the impact of courts on social policy.
Several other chapters deal with Civil Rights issues. For example Chapter Six by Mayeri, Brown, Persily and Kim examines the issue of gender equality, Chapter Seven by Le and Citrin analyzes affirmative action, and Chapter Ten by Egan, Persily and Wallsten examines gay rights. The gender equality chapter is an example of data limitations. While interesting, the public opinion polling deals with gender roles and is not directly on point with the constitutional issue of whether equal protection applies to gender discrimination. Because of this, much of the data and the analysis are more sociological than an examination of public opinion on the constitutional issue of gender and equal protection following Supreme Court holdings.
Public opinion data on affirmative action and gay rights, in contrast, are much more on point to the current constitutional controversies. The chapter on affirmative action offers some interesting data on gender, noting that support for affirmative action increases if respondents are first asked about preferences for women before being asked about racial hiring preferences. The chapter on gay rights also has the benefit of several years of data more pertinent to the relevant constitutional issues of equal protection and right to privacy. The data and analysis here show that public support appears to track changing court attitudes, with both becoming more supportive of gay rights, [*879] and the multivariate analysis offers intriguing information on public reaction to future court rulings in this area.
Several chapters are devoted to social, criminal and first amendment issues. The chapter on abortion by Luks and Salamone uses time series data to find a public and court largely in step with each other, but the underlying causal mechanisms and any change in the structure of support remain unexplained. This finding of court and public compatibility is in contrast with the findings of the school prayer chapter by Gash and Gonzales and the death penalty analysis by Hanley, both of which show a Court largely out of sync with public opinion and whose rulings did little to influence public support in favor of the right to burn American flags or the banning of mandatory prayer in public schools. Conversely, Green and Jarvis, in the chapter on the right to die, seem to find growing support by the American public for the right to die, despite Supreme Court rulings finding no constitutional right to privacy issue or equal protection issue that prevents state legislatures from banning physician assisted suicide.
Lerman’s chapter on the rights of the criminally accused shows that initial opposition to Supreme Court rulings by the Warren Court expanding rights appeared to move in the direction of greater acceptance of the rulings. Again this is a chapter where data limitations prevent firm conclusions. As the author notes, it is impossible to state whether the Supreme Court rulings changed public opinion or whether the movement over time was independent of the Court’s opinions.
Three of the remaining chapters examine current constitutional issues. The chapter on federalism by Mullin suffers from the data problems of some earlier chapters. Although extremely important, there is not a lot of public interest in the relative power of the states and the federal government, and recent court rulings on the commerce clause and the 10th and 11th Amendments. Hence the chapter focuses on determinants of public support for federal power, but those responses are not related to Supreme Court rulings in this area. On the other hand, the issue of government takings, since the Court opinion in KELO v. CITY OF NEW LONDON, has increased salience to the public, and the KELO ruling spurred significant state response in limiting the “public use” doctrine. Thus the decision galvanized opposition to government takings. The chapter on the War on Terror and Civil Liberties by Goux, Egan and Citrin shows a nuanced and erratic public response to congressional legislation, but it does not include data in response to recent Supreme Court opinions limiting executive authority in this area.
The last chapter by Mate and Wright on BUSH v. GORE and the 2000 election controversy is a bit of an outlier. Most of the chapters analyze public support for an issue after or in response to Supreme Court rulings. The focus of this chapter is on support for the Court following the decision. The chapter thus does not really examine “popular constitutionalism” but diffuse and specific support for the court in the aftermath of BUSH v. GORE. Thus, while the chapter is interesting, it is thematically different from the rest of the book and offers little new information. [*880]
This book is a welcome addition to the field and is useful both as a compendium of information in this area, and it also offers some new and insightful analyses. While not all chapters are equally strong or valuable, the book will provide a useful source to those who research in law and courts and will be a welcome addition to political science graduate courses in public opinion or judicial process when the focus turns to courts and public opinion. I think it will also help those of us who teach undergraduate courses in Civil Liberties and Civil Rights by providing important context to the cases taught to our undergraduate students.
Franklin, Charles, and Liane Kosaki. 1989. “Republican Schoolmaster: The U.S. Supreme Court, Public Opinion and Abortion.” AMERICAN POLITICAL SCIENCE REVIEW 83 (September): 751-771.
KELO v. CITY OF NEW LONDON 545 U.S. 469 (2005).
BUSH v. GORE 531 U.S. 98 (2000).
BROWN v. BOARD OF EDUCATION OF TOPEKA, 347 U.S. 483 (1954).
© Copyright 2008 by the author, Robert M. Howard.