The Supreme Court has a remarkable number of divisive issues on its docket, such as the constitutionality of the Affordable Care Act, whether corporations are liable for torture, and the future of affirmative action.  Will the Court’s decisions in these cases provoke greater public backlash than if similar questions were addressed by Congress?  That is the fascinating question at the heart of a forthcoming article, Judicial Backlash or Just Backlash?  Evidence from a National Experiment, by Professors Donald Braman and David Fontana.

As Braman & Fontana observe, conventional wisdom has it that the public is more likely to oppose controversial decisions by the Supreme Court than those made by the political branches.  For example, many contend that the Supreme Court’s decision in Roe v. Wade inspired more protest than if Congress had enacted legislation to accomplish the same goal.  But there has been almost no empirical research into that question.  With the help of a public opinion research firm, Braman and Fontana conducted an experiment that suggests that conventional wisdom is wrong.

The experiment divided 2000 study subjects into two groups.  One group read fictional news articles relating to gay marriage.  Half read an article reporting that the Supreme Court upheld the rights of gays to marry, while the other half read an article stating that Congress had passed a law requiring federal and state governments to permit gay marriage.  The second group of study subjects read fictional news articles relating to the right to carry a concealed gun.  Again, half of the group read an article describing a Supreme Court decision finding a constitutional right to carry a concealed weapon, while the other half read an article reporting that Congress had passed a law requiring federal and state governments to permit citizens to carry concealed weapons.  The subjects were then asked questions to measure their willingness to accept these decisions, as well as their sense of the Supreme Court’s and Congress’s respective competence to resolve these controversial issues.  (The great majority of both groups believed that the articles they read were reporting on actual events; they were told that these articles were fictional at the end of the study.)

The article is worth reading in full for the authors’ thoughtful analysis of the results.  But the bottom line is that the study subject’s reaction to the decision was the same whether made by the Supreme Court or by Congress.  In other words, supporters of gay rights were happy to have either the Supreme Court or Congress protect gay marriage, while opponents were equally unhappy with the decision by either institution.  And the same was true for the decision to permit citizens to carry concealed weapons; supporters and opponents were equally happy or unhappy without regard to which political institution was responsible for the decision.

As Braman & Fontana observe, these findings are significant for social movement activists, among others, who must decide whether to pursue their agenda through legislative or judicial channels (or both).  Of course, there are still good reasons to seek change from democratically accountable institutions like Congress, rather than counter-majoritarian institutions such as courts.  But fear of backlash alone appears not to be one of them.

Posted in Academic Round-up

Recommended Citation: Amanda Frost, Academic round-up, SCOTUSblog (Apr. 11, 2012, 4:22 PM),