Legal scholarship highlight: The Supreme Court, the media and public opinion
on Feb 24, 2017 at 10:19 am
Katerina Linos is a professor at UC Berkeley Law School. Kimberly Twist is an assistant professor of political science at San Diego State University.
Does the Supreme Court, the most trusted branch of the federal government, influence ordinary Americans’ opinions? When the Supreme Court upholds same-sex marriage, Obamacare or controversial immigration restrictions, does it increase public support for these policies? The answers to these questions are vitally important, because they shape the legitimacy of the court and the likelihood that court decisions will meet political resistance.
If Americans take cues from Supreme Court rulings when forming or updating their opinions on policy, this would suggest that initially unpopular policies may gain widespread public acceptance if they come before the court and are upheld. Exerting this kind of influence would enable the court to function as a “Republican schoolmaster” and as a vehicle for social change, as scholars from Robert Dahl in 1957 to Nate Persily in 2013 have suggested. Court decisions are less likely to be resisted by bureaucrats and politicians if those decisions are supported by a majority of the American public. Legal scholars have argued that this in turn could allow for greater judicial independence and for an effective system of checks and balances in American politics.
If Americans do not respond to court rulings, however, each of these possibilities is, at best, a “hollow hope.” And indeed, many believe that the court is both counter-majoritarian – because unelected justices review the actions of popularly elected politicians – and unresponsive to shifts in public opinion.
Existing scholarship on whether the Supreme Court can actually affect public opinion is extensive, but divided. Our study overcomes measurement issues that prior work faced: The biggest problem has been a lack of survey data from just before and after court rulings. Researchers have, in the past, needed to rely on data collected months or years on either side of court decisions. This has made causal claims difficult, if not impossible, as changes in opinion could be due to court rulings or to dozens of other intervening events.
Substantively, the work on the court and public opinion has overlooked a major actor: the media. How newspapers, television programs and Internet sources translate and disseminate court decisions is a critical question. Unlike the president or members of Congress, Supreme Court justices do not hire publicists to reduce their opinions to soundbites, nor do they buy advertisements to spread messages widely. Instead, Supreme Court justices write long and technical opinions, which then must be interpreted and distilled for public consumption by the media. Indeed, research on the Supreme Court has called the media, and, in particular, television, the “most critical conduit” by which the American public learns about the court’s actions.
In a recent article published in the Journal of Legal Studies, we conducted studies of public opinion before and after two major 2012 Supreme Court rulings: National Federation of Independent Business v. Sebelius and Arizona v. United States. In the first ruling, the court upheld the most controversial Obamacare provision – the individual mandate – while striking down other parts of the law, such as Medicaid expansion. In the second ruling, the court upheld the most controversial provision of Arizona’s restrictive immigration law – the “show-your-papers provision” – while striking down other important provisions. We surveyed a nationally representative sample of 1,000 respondents in May 2012, right before the decisions were released, and re-interviewed these respondents in the days following the June 2012 court rulings. We asked all respondents about their level of support for or opposition to the relevant provision for that study: For health care, we asked whether federal legislation should require all Americans to purchase health insurance, and for immigration, whether state laws should require police to investigate a person’s immigration status during a traffic stop (given “reasonable suspicion” that person was in the United States unlawfully).
Before asking for the respondents’ opinions during the second survey in June, we randomly assigned respondents to receive either no further information about the ruling, or one of three experimental treatment messages: 1) that the court had upheld the individual mandate (or the “show-your-papers” provision); 2) the first message, plus an argument from the court’s majority opinion; or 3) the second message, plus an argument from the court’s health-care dissent or immigration concurrence.
In addition, to evaluate the effects of real-world media exposure, student coders classified the evening news transcripts from six networks (ABC, CBS, NBC, CNN, Fox News and MSNBC) on the days of the health care and immigration rulings. We identified commonly-used frames in these transcripts, such as reporters discussing the individual mandate as a tax or talking about the potential for racial profiling in Arizona, and, based on the coders’ reports, tagged each as either positive (supportive of the court ruling), negative (critical of the court ruling), or neutral. Using a survey question about news attentiveness and the television news programs watched by respondents, paired with our content analysis of the evening news programs, we then categorized respondents based on the messages they received from our study and from their real-world news sources – no news, uncritical coverage of the court ruling, or critical coverage of the court ruling.
Through the combination of experimental data and content analysis of television news, we were able not only to explore how the media cover court rulings, but also to analyze the effects that media outlets’ translations of court decisions have on public opinion. First, we found that journalists are unusually deferential to the Supreme Court. Whereas two-sided coverage of executive and legislative decisions is fundamental to journalistic ethics, one-sided coverage of court decisions is surprisingly common. Journalists often present only the frame chosen by the court majority, and ignore the frame chosen by dissenting justices.
Even partisan networks, such as Fox News and MSNBC, did not choose to devote all of their time to criticisms of court decisions with which they vehemently disagreed (such as MSNBC on the “show-your-papers” provision and Fox News on the individual mandate). Instead, we saw reporting based on the court majority’s opinion mixed with criticisms of the decision. Fox News and MSNBC opted for more heavily one-sided coverage when they agreed with the court’s decision. The other four networks (ABC, CBS, NBC and CNN) consistently presented the court’s ruling alongside mostly positive arguments from politicians.
Second, we found that ordinary Americans will only change their minds when they are exposed to one-sided coverage of court decisions. We found large and significant shifts both when viewers received one-sided messages from the news programs they typically watch, and when we randomly exposed a representative sample of Americans to a one-sided message. This finding suggests that a court decision upholding a particular policy can increase the level of public support for that policy. The one exception to this finding concerned Latino respondents, who consistently showed lower levels of support for the “show-your-papers” provision after the court ruling.
Two-sided coverage, which discussed both the frame used by the court majority and that used by the dissent (or, in the case of the immigration ruling, the concurrence), reduced the impact of the court decision on opinion change. After hearing a mix of positive and critical coverage, these respondents were likely to keep their original views of the individual mandate and the “show-your-papers” provision.
We found that the Supreme Court can shift Americans’ views – and did in fact significantly increase the popularity of the individual mandate. This effect, however, is driven by one-sided media coverage – by a choice media outlets often make to treat Supreme Court decisions with far more deference than they treat presidential and congressional choices. Given sufficient media coverage for a particular court case, this choice on the part of the media means the court does have the ability to lead public opinion.