JUSTICE
This is the Proof the Court is Listening and Why It Matters
The Supreme Court, Interest Groups, and Balancing Perceptions of Law and Politics
The political side of the Supreme Court has received much media attention lately given contentious nominations and confirmation hearings over the past few years and recent calls for Breyer to retire so he can be replaced by another liberal justice. Simultaneously, the justices have worked to retain their image as legalistic, non-political actors. In recent weeks, Supreme Court justices Breyer and Coney Barrett have made public claims that the Supreme Court is above politics, perhaps trying to hold on to the institution’s high level of public support, relative to the other two branches of the federal government.
At the same time, the media ignores another area where we see a clash of law and politics at the U.S.S.C.. A plethora of interest groups file friend-of-the-Court or amicus curiae briefs to persuade the justices to vote a particular way in a case, and there is evidence that the justices pay attention to, and at times, rely on these briefs. For instance, the justices sometimes take the exact language from these briefs and incorporate it into their opinions, often without attribution. Other times they directly reference (or cite) these interest group-filed briefs by name. These two types of use might have different implications for perceptions of the Court’s decisions, as one is visible to the reader and the other is not.
What has interested me is whether the ideology of the interest groups matters to the justices.
A recent study published in American Politics Research addresses this. This is made possible because scholars have produced data on the ideological orientations (known as ideal point estimates) of 600 interest groups in the same policy space as the justices. Using this data, and data on a subset of U.S. Supreme Court cases from 1988–2008, I found that the justices borrow more language from briefs filed by ideologically similar organized interests, but the decision to cite is more complex.
Unlike the use of borrowed language, I did not find that the justices were more likely to cite briefs filed by ideologically similar interests. I also found that while the justices don’t avoid citing ideological groups altogether, they are less likely to cite the most unapologetically ideological groups, such as the Knights of Columbus or the Feminist Majority Foundation. This is not surprising as the justices might want to uphold their “neutral” reputation by appearing unbiased and non-ideological to the public. While there is more work to be done in this realm, this might suggest the justices interact with interest group filed briefs differently both in terms of the frequency with which they borrow (often) relative to when they cite (more rarely) and how they engage with these briefs based on the ideology of the interest.
Given these findings and the recent media attention that views the Supreme Court justices through a political lens, what does the public think? If the media were to dedicate more attention to it, would they think the justices are acting politically when they use interest group filed briefs in their opinions?
In an article forthcoming in the Journal of Empirical Legal Studies, I address what the public thinks when the justices engage in this type of behavior. To do this, I implemented a survey experiment of nearly 3,000 respondents in August of 2018. Participants read about a hypothetical Supreme Court decision where either a liberal (American Civil Liberties Union), moderate (American Medical Association), or conservative (Focus on the Family) interest group was cited in the opinion. The control group did not receive a citation.
I found that overall, the public was slightly less supportive of citations to ideological groups (the ACLU and Focus on the Family) relative to the control of no citation. This suggests the public might not care much for politics in Supreme Court decisions. Figure 1 below shows average acceptance levels of the decision. The black bar on the left represents those in the control group of no interest group citation. The grey bar on the right represents those who received an ideological citation — the ACLU or Focus on the Family. As evident in the figure, those who received a citation to an ideological group were slightly less accepting of the decision (albeit this is a modest decrease). Acceptance levels of decisions that cited the American Medical Association were no different than the control of no citation.
Figure 1: Ideological Citations Compared to No Citation
With this finding in mind, I then assessed whether the public was more supportive of citations to groups that are ideologically similar to their own preferences and less supportive of those that are ideologically distant from them. While I did not find that citations to ideologically similar groups increased support for the decision, I did find that citations to ideologically distant groups decreased acceptance of the decision.
This finding is demonstrated in Figure 2 below. The black bar on the left represents those in the control group who did not receive a citation to an interest group. The grey bar on the right represents those who received a citation to a group that was ideologically dissimilar from their own preferences (i.e., liberals who received a citation to Focus on the Family and conservatives who received a citation to the American Civil Liberties Union). Those who received such citations were less supportive of the Court’s decision than those who did not receive a citation.
Figure 2: Ideologically Dissimilar Citation Compared to No Citation
Finding that people are less accepting of Supreme Court decisions that cite ideologically charged groups and that certain groups have the ability to polarize was not surprising. However, what’s interesting is that I asked a follow up question about whether respondents felt the decision was based in law, law and politics, or politics and I did not find that citations to ideological groups lead the public to state the decision was grounded in politics over law. This might suggest that the public doesn’t view Supreme Court decision making as political, even when they cite ideologically charged groups, at least in isolated incidences. While the public does not appear to like politics in Supreme Court decisions, in that they are less accepting of decisions that cite ideologically motivated groups, perhaps they are not viewing the Court as politicized, even when the justices engage in this seemingly ideological behavior.
