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What Is the Impact of Public Opinion on the Court?

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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 caselevel factors that may influence the Court’s decisions.

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Part of this trend is because the internet makes taking a case in front of the court of public opinion so much easier. It used to be that the injured party had to convince a traditional media outlet to make his case public; now he can take his case directly to the people. And while it's still a surprise when some cases go viral while others languish in obscurity, it's simply more effective to present your case on Facebook or Twitter. Another reason is that the traditional court system is increasingly viewed as unfair. Today, money can buy justice: not by directly bribing judges, but by hiring better lawyers and forcing the other side to spend more money than they are able to. We know that the courts treat the rich and the poor differently, that corporations can get away with crimes individuals cannot, and that the powerful can lobby to get the specific laws and regulations they want -- irrespective of any notions of fairness. Smart companies have already prepared for battles in the court of public opinion. They've hired policy experts. They've hired firms to monitor Facebook, Twitter, and other internet venues where these battles originate. They have response strategies and communications plans in place

They've recognized that while this court is very different from the traditional legal system, money and power does count and that there are ways to tip the outcomes in their favor: For example, fake grassroots movements can be just as effective on the internet as they can in the offline world. It's time we recognize the court of public opinion for what it is -- an alternative crowd-enabled system of justice. We need to start discussing its merits and flaws; we need to understand when it results in justice, and how it can be manipulated by the powerful. We also need to have a frank conversation about the failings of the traditional justice scheme, and why people are motivated to take their grievances to the public. Despite 24-hour PR firms and incident-response plans, this is a court where corporations and governments are at an inherent disadvantage. And because the weak will continue to run ahead of the powerful, those in power will prefer to use the more traditional mechanisms of government: police, courts, and laws. Social-media researcher Danah Boyd had it right when she wrote here in Wired: 'In a networked society, who among us gets to decide where the moral boundaries lie? This isn't an easy question and it's at the root of how we, as a society, conceptualize justice.' It's not an easy question, but it's the key question. The moral and ethical issues surrounding the court of public opinion are the real ones, and ones that society will have to tackle in the decades to come.

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Public opinion polling is prevalent even outside election season. Are politicians and leaders listening to these polls, or is there some other reason for them? Some believe the increased collection of public opinion is due to growing support of delegate representation. The theory of delegate representation assumes the politician is in office to be the voice of the people.[Donald Mccrone, 1979] If voters want the legislator to vote for legalizing marijuana, for example, the legislator should vote to legalize marijuana. Legislators or candidates who believe in delegate representation may poll the public before an important vote comes up for debate in order to learn what the public desires them to do. Others believe polling has increased because politicians, like the president, operate in permanent campaign mode. To continue contributing money, supporters must remain happy and convinced the politician is listening to them. Even if the elected official does not act in a manner consistent with the polls, he or she can mollify everyone by explaining the reasons behind the vote.[Norman Ornstein, and Thomas Mann, eds. 2000] Regardless of why the polls are taken, studies have not clearly shown whether the branches of government consistently act on them. Some branches appear to pay closer attention to public opinion than other branches, but events, time periods, and politics may change the way an individual or a branch of government ultimately reacts. Elections are the events on which opinion polls have the greatest measured effect

Public opinion polls do more than show how we feel on issues or project who might win an election. The media use public opinion polls to decide which candidates are ahead of the others and therefore of interest to voters and worthy of interview. From the moment President Obama was inaugurated for his second term, speculation began about who would run in the 2016 presidential election. Within a year, potential candidates were being ranked and compared by a number of newspapers.[Paul Hitlin. 2013] The speculation included favorability polls on Hillary Clinton, which measured how positively voters felt about her as a candidate. The media deemed these polls important because they showed Clinton as the frontrunner for the Democrats in the next election.

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All in all, while support for abortions to protect health increased as a result of the Court’s decision, the public became more polarized over ‘discretionary’ abortions. The puzzle is what process can account for these disparate reactions. We develop a theory resting on interpersonal influences to explain these results, arguing that the social interpretation of events drives the differing outcomes. This theory is then tested against a purely psychological alternative. The closing discussion considers how these results can be extended to the general problem of public decisions and popular responses, including presidential actions and the influence of the media.”

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Donald Mccrone, and James Kuklinski. 1979. "The Delegate Theory of Representation." American Journal of Political Science 23 (2): 278–300. ↵

Norman Ornstein, and Thomas Mann, eds. 2000. The Permanent Campaign and Its Future. Washington: American Enterprise Institute for Public Policy Research and the Brookings Institution. ↵

Paul Hitlin. 2013. "The 2016 Presidential Media Primary Is Off to a Fast Start." Pew Research Center. October 3, 2013. http://www.pewresearch.org/fact-tank/2013/10/03/the-2016-presidential-media-primary-is-off-to-a-fast-start/ (February 18, 2016). ↵

Pew Research Center, 2015. "Hillary Clinton’s Favorability Ratings over Her Career." Pew Research Center. June 6, 2015. http://www.pewresearch.org/wp-content/themes/pewresearch/static/hillary-clintons-favorability-ratings-over-her-career/ (February 18, 2016).

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