Abstract
An important conversation is happening in U.S. politics about the appropriate role of the U.S. Supreme Court and about the Court’s increasing involvement in highly politicized, controversial policy areas. Many scholars agree that the Court increasingly engages with important national policy issues. What happens when the Court addresses significant policy questions and, equally importantly, answers them in a way that conflicts with public consensus?
In this Article, we develop the idea of public-opinion-based constitutional norms, which we define as areas of constitutional governance on which large, usually bipartisan majorities agree. We argue that the Court is more constrained—albeit not perfectly—in areas where such strong constitutional norms exist. We document these norms using important new survey measures that we have introduced elsewhere. Using these measures, we argue that such areas of public consensus can exist, and, when they do, the Court tends to rule in ways that favor these constitutional norms; when the Court rules in opposition to such norms, there tends to be backlash against the Court. While this backlash does not fully constrain the Court, this process can increase costs to the Court associated with rulings that undermine or conflict with such constitutional norms.
Furthermore, that public-opinion-based norms may constrain the Court means that the public has some agency in American constitutional governance. By creating broad bipartisan public consensus around constitutional expectations, the public can contribute to making future unpopular rulings more costly. We conclude this Article by discussing potential areas where the development of strong, public opinion based constitutional norms of the kind we describe could be beneficial for U.S. democracy and the rule of law.
This Article was prepared for UCLA Law Review’s Symposium on the Imperial Supreme Court. The ideas presented here build off previous papers as well as an ongoing book project.
