The document discusses several studies and articles that have found the Supreme Court is influenced by public opinion in some of its rulings and decisions. Specifically:
- Research has found the Court's decisions are often consistent with popular opinion, especially in cases where the justices fear non-implementation of rulings.
- Justices may be influenced by public opinion both strategically, to maintain legitimacy, and intrinsically as they are subject to the same social forces as the public.
- Media coverage can impact public opinion and influence elected judges and the Court, especially in highly publicized cases dealing with criminal sentencing.
4. Supreme Court rulings on private enforcement of rights
receive dramatically less press coverage than decisions
concerning the rights themselves. This is true with
respect to:
the volume of total coverage
more prominent coverage
whether issues receive editorial or opinion treatment
The Subterranean Counterrevolution: The Supreme Court, the Media, and Litigation Retrenchment, 65 DePaul L. Rev.
(2016) Stephen B. Burbank & Sean Farhang
5. “…There is general agreement among political
scientists, and increasing recognition among legal
academics, that more often than not the outcomes of
Supreme Court decisions are consistent with popular
opinion.”
6. But why would the Court respond to public opinion?
Judges are not elected by the public. Still, political
scientists issue an impressive array of evidence in favor
of the hypothesis that the Court follows changes in
public opinion.
“How The Supreme Court Responds to Public Opinion,” by Erik
Voeten, Washington Monthly, June 28, 2013
7. Public opinion may influence which judges are
nominated and confirmed.
Justices may care about public opinion for a host
of reasons that can conveniently be labelled under
the rubric “institutional legitimacy”…even the
U.S. Supreme Court relies to some extent on
voluntary cooperation from other institutional
actors.
8. Justices fear nonimplementation of their
decisions.
When the threat of nonimplementation is
most severe, the effect of external pressure is
strongest.
When justices are more confident their
decisions will be implemented, they are less
constrained by external forces.
“The Supreme Court is constrained by public opinion in cases where the justices
fear nonimplementation of their decisions,” by Matthew Hall, American Journal of
Political Science, February 23, 2015
9. “The quantitative analysis shows that there is a
relationship between the mood of the American public
and individual justice votes.”
“The Effect of Public Opinion on the Voting Behavior of Supreme Court Justices,”
by Kristen Rosano, University of North Carolina Thesis, 2014
10. The strategic behavior explanation:
Justices deliberately pay attention to public opinion to maintain
legitimacy in the eyes of the public (justices are influenced by the
same social forces that the public is).
The attitudinal change explanation:
Justices tend to vote with the public simply because they are
subject to the same social forces.
“The Effect of Public Opinion on the Voting Behavior of Supreme Court Justices,”
by Kristen Rosano, University of North Carolina Thesis, 2014
11. - The Supreme Court is not an unbiased, robotic interpreter of
the law.
- It is a fluid body that responds to real world situations as a real
person would.
- Public opinion can apparently have a real effect on highest
judicial body in the United States.
“The Effect of Public Opinion on the Voting Behavior of Supreme Court Justices,”
by Kristen Rosano, University of North Carolina Thesis, 2014
12. The vast majority of lawsuits settle before
trial—thus, much public relations takes place
well before the case ever makes it to the
courthouse.
13. The media exert an enormous amount of influence
over the course of legal disputes—in everything
from noteworthy but small-scale cases to the most
tabloid-driven slugfests.
14. The rise of business and legal media are
among the greatest changes in the practice of
law in the past 100 years.
15. Just because you don’t have absolute
control doesn’t mean you can’t influence
the way your case is presented to the
public. After all, you have no absolute
control over the judge(s).
16. Social science research has found that “exposure to the
various media had a prejudicial impact on people, as
they were unaware of their biases.”
“Media Influence in Capital Cases | Capital Punishment in Context”
Media Influence in Capital Cases | Capital Punishment in Context
17. A Stanford University study found “press coverage
magnifies the influence of voters’ penal preferences on
criminal sentencing decisions” of elected judges for
severe violent crimes. When a case receives a large
amount of media coverage, elected judges tend to
sentence more punitively than if the case is less
publicized.
“Media Influence in Capital Cases | Capital Punishment in Context”
Media Influence in Capital Cases | Capital Punishment in Context
18. Social media allows the public to share facts and
opinions about court cases. This is a challenge for
defendants, attorneys, and judges. Potential jurors who
may not come across a case in traditional media may be
influenced by the reactions of others on social media
sites.
“Media Influence in Capital Cases | Capital Punishment in Context”
Media Influence in Capital Cases | Capital Punishment in Context
19. Will the case merit attention in the regional
media or for a particular audience?
20. Does the case have a compelling human
interest story?
22. Is there a regulatory aspect that impacts
consumers?
23. Does the opposing counsel have a history of
using publicity for their cases?
24. Create message that the media AND your
target audiences can easily understand
We live in a world communicated in Tweets
Messaging should advance your goals, not
only publicity for publicity’s sake
Credibility and integrity, regardless of ARDC
or ABA guidelines, still rule
“One and done” is not a public opinion
strategy
25. ◦ 1973: Homosexuality no longer classified as a mental disorder
◦ May 30, 1987: Congressman comes out – Rep. Barney Frank becomes
the first openly gay member of Congress
◦ 1993: ‘Don't ask, don't tell’ – enacted by President Bill Clinton
◦ Oct. 12, 1998: Matthew Shepard's beating death – Aaron McKinney
and Russell Henderson rob and beat Shepard, a 21-year-old college
student, and tie him to a split-rail fence outside of Laramie, WY. He dies
on Oct. 12, less than a week after the attack.
◦ 2003: Anti-sodomy law struck down – The Supreme Court strikes
down a Texas anti-sodomy law, reversing an earlier decision made in
another case 17 years earlier that Justice Anthony Kennedy said
“demeans the lives of homosexual persons.”
26.
27.
28.
29.
30. Burbank, Stephen B, and Sean Farhang. “The Subterranean Counterrevolution: The Supreme
Court, the Media, and Litigation Retrenchment.” DePaul Law Review, vol. 65, no. 2, 2016, pp.
293–322. via.library.depaul.edu/cgi/viewcontent.cgi?article=3970&context=law-review.
Haggerty, James F. In the Court of Public Opinion: Winning Your Case with Public Relations.
Hoboken, NJ, J. Wiley, 2003.
“Media Influence in Capital Cases | Capital Punishment in Context.” Media Influence in Capital
Cases | Capital Punishment in Context, www.capitalpunishmentincontext.org/issues/media.
Rosano, Kristen. “The Effect of Public Opinion on the Voting Behavior of Supreme Court
Justices.” Carolina Digital Repository, University of North Carolina, Library at University of
North Carolina, 2014, cdr.lib.unc.edu/indexablecontent/uuid:5ef2c401-bc54-4706-916b-
04f64e0eecdf.
Voeten, Erik. “How the Supreme Court Responds to Public Opinion.” WashingtonMonthly.com,
28 June 2013, washingtonmonthly.com/2013/06/28/how-the-supreme-court-responds-to-public-
opinion/.
31. Helpful Links
Professional Legal
Resources
◦ Illinois Rules of Professional
Conduct
RULE 3.6: Trial Publicity
◦ ABA Model Rules of
Professional Conduct
Online Social Media
Monitoring
◦ Google Alerts
◦ Meltwater News
◦ CisionPoint
Professional Public
Relations Tools & Services
◦ PR Newswire
◦ PRWeb
◦ Vocus
Professional Associations
◦ Legal PR Chicago
◦ Public Relations Society of
America
◦ Legal Marketing Association
and the Midwest Chapter
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