14.4: Public Opinion or Ideology

The election of Barack Hussein Obama II, the first African-American President of the United States (2009 -2017), was thought to be a turning point in American history. This election may suggest a softening toward the notion of desegregation in the White House. In the last two decades it appears that a new-found benevolence embracing the advances of gender and gay/lesbian rights, same sex marriage, and health care access and economic equality may now have added footing. Public opinion is extolled in favorable decisions of the court relative to these issues. The long-standing process of gender nullification in the Oval Office was thought to hit the glass ceiling with the nomination by democrats of Hillary Rodham Clinton. The celebration of equal footing for all may be a bit premature. The tumultuous winds of discord have abruptly halted the progress, at least temporarily, in the immediate presidential election following the Obama Administration. The anticipation of the “Good Old Boy Club” (White upper class) demise seems overly exaggerated at this juncture.

Giles, Blackstone, and Vining (2008) contend that the court is affected by public opinion. This works viewed judicial decision making through two specific lenses. These are strategic behavior of the court and the mechanism of attitudinal change. If the decision-making avenue of choice is to decide cases to avoid negative reaction, it may be considered strategic. If court rulings are based on ideology or attitudinal change then prominent precedent setting case law may not impact a decision.

Using the American Health Care Act as an example (Obamacare) found an ally in the courts delineating the penalty portion of the bill as a tax rather than a penalty (Financial assessment for failing to secure health care coverage.). The court turned away challenges to the law by finding an avenue that was constitutionally permissible; Congress may levy taxes. One should expect with reasonable certainty that this debate will rage on. The court may be confronted with the conundrum of: Is health care a right or privilege? Should the court find consensus with this issue as a right then how may the court deal with funding issues through challenges of legislation that may have an adverse impact on the disenfranchised or marginalized portions of society? Generally, the courts have rendered decisions in-spite of the cost factor or creating discomfort to litigants. During the courts dismantling of segregation in schools, it implemented busing, disregarding citizen interest of a residential purchase near a school of choice or the cost of additional bussing. An unpopular ruling for certain and rendered without regard to popular opinion.

In the U.S. Supreme Court decision Buckley v. Valeo 424 US 936; 96 SCt 1153, decided January 30, 1976, the court ruled that mandatory limits placed on campaign contributions and campaign spending was unconstitutional. The court found campaign reform legislation in part was an abridgement of speech. In other words, money is a form of speech. Recall that the 14th Amendment provides that, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States”. This decision did much to expand the growth of campaign contributions either directly or indirectly through political action committees by special interest groups that may have served to further erode access to the political system. The incumbent has an advantage to assure campaign financing while limiting the ability of a lessor funded campaign/candidate (NYT, 1998).

Brown v. Board of Education, decided by the Warren Courts in 1954, had far greater impacts on the south than just segregation or repeal of the separate but equal doctrine. Again, clearly outlined in the 14th Amendment, “nor deny to any person within its jurisdiction the equal protection of the laws”. This single decision shifted from a strict rights issue to social perspectives to a moral and social justice question. In this decision, the Warren Court forced the south to examine male masculinity and treatment of not only African-Americans but the treatment of gays as well (Friend, 2009).

This behavioral modification within the southern states was not established in a vacuum or necessarily the result of a single judicial decision. As outlined in the conference examining, “Beyond Brown: How the Supreme Court Shaped the Modern South” the University of Sussex, Brighton (March 2007), four significant and relevant criteria added to the southern masculine metamorphosis. These are: First, the courts handling of other race cases in the immediate shadows of Brown; Second, the courts attitude toward race in criminal justice reform; Third, the Black freedom struggles on the part of activist inspired judicial expansion that protected all citizens prosecuted in the south; and Fourth, was the expansion of federal procedural protections afforded in other areas linked or not linked to federal law.

These associations were forged resultant of the Warren Courts disdain of white southern public authorities’ disregard for the guarantees fundamental to the equal protection clause (Beyond Brown, 2007). Garrow (2008) supports the argument of expansion of federal judicial authority “Yet the muscular and far-reaching self-assurance that the Warren Court exhibited from 1961 until 1967 was induced not only by the malfeasance and dishonesty of white southern officialdom. It also was influenced, in equal if not greater part, by the activism and courage of newly-emboldened Black southerners” (p.37).

The Warren Court legacy (Chief Justice Earl Warren), appears to have leaped light years ahead partially filling the social and criminal justice void of the previous 100 years subsequent to the ratification of the 14th Amendment in 1868. The Burger Court (1969-1986) was less amenable. Burger was thought of as a strict constructionist interpreting the constitution and upheld Georgia sodomy laws as a sound critic of gay rights. Burger was followed by Chief Justice William Rehnquist (1986-2005). Rehnquist applied greater levels of analysis to federal legislation protecting the reconstruction amendments (Greenhouse, 2009). Notwithstanding personal ideology of Justices, a study of court rulings in comparison to public opinion in two-thirds of those cases studied, the court provided preference to much of American opinion (Marshall, 2008).

The preceding section may elucidate the attention required for on-going social and judicial researchers regarding the nomination and vetting process for members of the bench. Often the vetting process of nominees include questions of what ideological camp does the nominee hail. Commonly previous decisions of a sitting judge in a lower prominent court sufficiently provides a road map of future decisions. The nominee’s judicial history is therefore considered paramount in securing or being denied a seat on the court. A relevant issue in the process as well as expectation of justices is how the justice may resolve dissonance between ideology and public opinion.