Lee Epstein
Lee Epsteing Ethan A.H. Shepley Distinguished University Professor
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Published in the University of Pennsylvania Journal of Constitutional Law 13:263-281

Lee Epstein
Andrew D. Martin


Using qualitative data and historical methods, Barry Friedman asserts with confidence that “we the people” influence the decisions of the U.S. Supreme Court. Using quantitative data and statistical methods, political scientists are not so sure. Despite their best efforts to validate basic claims about the effect of public opinion on the Court, the evidence remains mixed at best.

We enter this dialogue but in a voice distinct from existing political science work. Rather than explore the relationship between the public and the Court on a term-by-term basis, we analyze it at the level of the case. This allows us to exploit more nuanced public opinion data, as well as to attend to the many other case-level factors that may influence the Court’s decisions.

Based on our analysis, we are prepared to say that Professor Friedman is on to something. When the “mood of the public” is liberal (conservative), the Court is significantly more likely to issue liberal (conservative) decisions. But why is anyone's guess. Professor Friedman posits that the Justices will bend to the will of the people because the Court requires public support to remain an efficacious branch of government. Our analysis could be read to support this view but it is equally consistent with another mechanism: that “the people” include the Justices. On this account, the Justices do not respond to public opinion directly but rather respond to the same events or forces that affect the opinion of other members of the public. Or, as Cardozo once put it, that “the great tides and currents which engulf the rest of men do not turn aside in their course and pass the judge by.”

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