Can Public Opinion Sway Court Decisions?
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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.
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Can Public Opinion Sway Court Decisions?
- 1. Chicago Bar Association December 1, 2016
- 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?
- 21. Is the case part of a trend?
- 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.”
- 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 Recommended Reading
Editor's Notes
- For a fight that started over a few thousand dollars' worth of car parts, so much more is now at stake. The policyholders' latest suit alleges violations of the Racketeer Influenced and Corrupt Organizations Act (RICO). And it accuses State Farm, its in-house counsel and a co-conspirator of manipulating the election of an Illinois Supreme Court justice. Not here to talk about buying a bench.
- Note his opening comment: “Only vary rarely would that actually matter.”
- Example of
- Recent work by scholars who take a strategic perspective, suggests that the Court does not often have the last word, even on matters of constitutional interpretation, and, as a result, it does not stray very far (or for very long) from what the majority wants.
- Dred Scott v. Sanford Supreme Court of the United States People of African descent imported into the United States and held as slaves, or their descendants — whether or not they were slaves — were not included under the Constitution and could never be citizens of the United States.
- The Court may care, for instance, that its decisions are not overturned by Congress (especially on non-constitutional cases) or that they are interpreted broadly rather than narrowly. These other actors do depend for their survival on public opinion and thus may pay a higher political prize for undermining the Court when public acceptance of the Court is high. Indeed, politicians may benefit from challenging Court decisions that are unpopular (such as the abortion rulings in some parts of the country)
- Public opinion matters.
- Research shows that the liberalness of the public can sway a justice to vote in a liberal direction.
- Even today the type of case with slaves in he 1800s. Back then the question was “people or property?” Today couples who separate and have frozen embroyos are fighting over what happens with them with the same basic point of conflict “people or property.”
- Don’t wait until court date to plan public opinion strategy. Example of What Walgreens excutive said last night: “everytime I saw something I’m thinking how could this play out in a court document.”
- Example: Judge Ito For much of the trial, Judge Ito has railed against the news media, particularly television, describing it at times as a pernicious influence on the case and worrying aloud that it could irreparably damage Mr. Simpson's ability to receive a fair trial. But now that Judge Ito, who once threatened to keep the trial from being televised, has appeared in a five-part series of television interviews on KCBS-TV in Los Angeles, many trial lawyers and legal experts say that he is contributing mightily to the frenetic publicity surrounding the case and raising questions about his judgment.
- 25 years ago marketing was a dirty word for law firns, not now, and using publicity and trying to influence public opinion has become a staple.
- Unless you believe the ABC drama Notorious is a documentary
- You can really see the media influence in capital cases.
- An Illinois high school football team that lost a playoff football game because officials made an incorrect call won't be in the state championship contest after a judge on Wednesday rejected its bid to overturn the outcome. Cook County Judge Kathleen Kennedy ruled Wednesday that Plainfield North High School's Saturday win over Fenwick High School should stand. She cited a bylaw of the body that governs prep sports in Illinois, the Illinois High School Association, saying officials' decisions are final
- A lawsuit brought by children against the Obama administration may force President-elect Donald Trump to decide how far he’ll go to downplay the threat of global warming. Youths from across the U.S. won a chance Thursday to pursue claims that the Obama administration didn’t do enough to protect the environment from climate change when an Oregon federal judge rejected the government’s request to dismiss their lawsuit.
- The new regulations call for an extra tax on home-sharing hosts, a limit on the number of units in buildings that can be rented out on the platforms and a requirement that hosts maintain records on guests, among other rules.
- Clean Line won state regulators’ approval for the Illinois portion of the 500-mile project in 2014 (EnergyWire, Sept. 30, 2014). But landowner opponents and Comonwealth Edison (ComEd), the Chicago-based utility affiliate of Exelon Corp., convinced an appeals court to reverse the decision.