(coauthored with Stephen Ansolabehere and crossposted)
Upon the initiative of my colleague Jamal Greene who has been writing about the popularity of originalism, our July survey included several questions concerning judicial methodology. As cautious as we might be generally about measuring opinion on constitutional questions, our concerns about question wording, issue complexity, and non-salience are heightened in this context. Nevertheless, recognizing those limitations, we sought to examine attitudes on several questions concerning interpretive methodology that other polling firms and scholars have asked, as well as some new ones, such as the appropriateness of empathy in Supreme Court decisionmaking.
We began with the following question that has been asked by the Quinnipiac poll for the last six years:
Which comes closer to your point of view?
1) In making decisions, the Supreme Court should only consider the original intentions of the authors of the Constitution.
2) In making decisions, the Supreme Court should consider changing times and current realities in applying the principles of the Constitution.
To be sure, the question framing is unfair to the originalist position, presents a false dichotomy, and has a host of other problems. Nevertheless, the results have been remarkably consistent, the split shows that there is not lopsided support for either option even given the phrasing, and very few people refuse to express an opinion on the question. On average, 42% identify with the “original intentions” option, 51% identify with the “current realities” option, and only 8 percent “don’t know.” (Since 2003, the share supporting the “original intentions” option has ranged from 39% to 44%. Our survey from July found 40% supporting that option.)
Our survey decided to delve further and asked a battery of questions developed by Jim Gibson at Wash. U., and added a question about “empathy” as well, given its salience to the Sotomayor nomination.
The survey asked: “How important would you say it is for a good Supreme Court judge to…..”
The numbers following each response correspond to the share who say Very important, Somewhat important, Not very important and Not important at all
Strictly follow the law no matter what people in the country may want? 39 42 14 4
Feel empathy for the people involved in a case? 17 41 26 14
Protect people without power from people and groups with power? 52 34 8 5
Respect the will of the majority of people in the U.S.? 34 40 17 9
Stay entirely independent of the President and Congress? 57 31 8 3
Follow his or her conscience or sense of morality? 31 43 15 9
Respect existing Supreme Court decisions by changing the law as little as possible? 30 47 16 5
Uphold the values of those who wrote our constitution two hundred years ago? 53 37 7 2
Apologies again for the my inability to figure out how to insert a table. As seen in this battery, which does not force respondents to choose among them, every option finds majority support deeming that criterion to be “very” or “somewhat important.” The response patterns range from 90 percent who consider it very (53%) or somewhat (37%) important to “uphold the values of those who wrote our constitution two hundred years ago,” to 58 percent who consider it very (17%) or somewhat (41%) important for a judge “to feel empathy for the people involved in a case.” The only options that a majority considers very important are “stay entirely independent of the President and Congress” (57%), which is no surprise given the relatively low ratings the political branches, rather than the courts, tend to receive from the mass public; “uphold the values of those who wrote our constitution” (53%); and “protect people without power from people and groups with power” (52%), which surprised me a bit given the patterns on the other options.
We are just beginning to delve into the more interesting and important questions as to who identifies with which option – that is, what demographic characteristics and responses to other questions in the survey are associated with attitudes toward interpretive methodology. Here is one finding that seems particularly robust: even when controlling for all the usual demographic characteristics and a range of measures for political conservatism, moral traditionalism, libertarianism, religiosity etc., attitudes toward Roe v. Wade and attitudes toward federal recognition of same sex marriages where it is legal are powerful predictors of the choice of “original intentions” in the Quinnipiac question.
Very important
Somewhat important
Not very important
Not important at all
Strictly follow the law no matter what people in the country may want?
39
42
14
4
Feel empathy for the people involved in a case?
17
41
26
14
Protect people without power from people and groups with power?
52
34
8
5
Respect the will of the majority of people in the U.S.?
34
40
17
9
Stay entirely independent of the President and Congress?
57
31
8
3
Follow his or her conscience or sense of morality?
31
43
15
9
Respect existing Supreme Court decisions by changing the law as little as possible?
30
47
16
5
Uphold the values of those who wrote our constitution two hundred years ago?
53
37
7
2originalism table
CJColucci says:
Could someone explain how you can develop a coherent account of the views of people who have no coherent views?
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November 20, 2009, 4:45 pmOff Kilter says:
77% think it important to some degree to “Respect existing Supreme Court decisions by changing the law as little as possible.”
And yet 90% think it important to some degree to “Uphold the values of those who wrote our constitution two hundred years ago.”
Of course, if current law does not already uphold the values of those who wrote our Constitution two hundred years ago, a large majority holds internally contradictory goals. Rational ignorance strikes again.
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November 20, 2009, 5:14 pmyankee says:
So basically, what these results tell us is that the American people want it all, and consistency be damned.
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November 20, 2009, 5:14 pmJ. Aldridge says:
Forget the intentions, the court needs to remember national government was given limited powers while the states reserved unlimited domestic powers for themselves.
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November 20, 2009, 5:22 pmloki13 says:
Here’s what I have determined from decoding two lines:
Feel empathy for the people involved in a case? 17 41 26 14
Protect people without power from people and groups with power? 52 34 8 5
So....
Combining, there’s 58% of the people think empathy is important, and 86% of the people who think it’s important to protect the powerless. This leads me to the conclusion that there’s 28% of the population that enjoys protecting the powerless without, you know, feeling any empathy. They’re just about the power. Or something.
In related news, 99% of people don’t think through their survey answers very well.
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November 20, 2009, 5:30 pmloki13 says:
Also, 83% of the population wants SCOTUS judges to do things that sound vaguely good, while 17% are scared away because one of the words in the question sounds suspiciously like a buzzword they heard on Justice Sunday or Democracy Now.
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November 20, 2009, 5:32 pmAllan Walstad says:
The relevant question these days is whether Constitutional interpretation can properly overturn and reverse the clear intentions of the authors. Given what I’ve read at times on this blog and elsewhere, not to mention past actions of the Supreme Court itself, it appears that the consensus among lawyers and justices (not to mention politicians) has been a resounding yes.
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November 20, 2009, 5:36 pmfwb says:
This is how it happens even though the concepts of fundmental law theory say it is wrong. The supreme Court being a subordinate of the Constitution has absolutely no authority to interpret the Constitution. Next time you think they can try telling YOUR boss what his/her job is.
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November 20, 2009, 6:05 pmloki13 says:
The relevant question these days is whether Constitutional interpretation can properly overturn and reverse the clear intentions of the authors.
Well, of course! “The clear intention of the authors?” What the heck does that even mean? The person who wrote it down? The author(s) (note plural) who voted on it? What if one of the authors had an idiosyncratic definition? And so on. Cue up the intentional fallacy. Not even Bork falls for that any more.
Perhaps you mean “the text of the Constitution, as informed by it is original expected application (as evidenced by contemporary persusaive documents)?” Because if you mean something like that, then, well, you’re wrong again in your next statement. I would say that this is now the dominant mode of analysis among “lawyers and justices”, but is also tempered by this thing we call precedent (which was a very familiar concept at the ratification of the Constitution), which means that we don’t like to overturn settled law just because someone says “But now it might be wrong, because we have such a clearer view of the 1700s today than we ever did!”
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November 20, 2009, 6:11 pmOff Kilter says:
I don’t know why we expect mere citizens to have a coherent theory of Constitutional interpretation when at least one VC blogger is quite clear that alleged theories of Constitutional interpretation are mere masks for instituting policy preferences.
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November 20, 2009, 11:09 pmtrotsky says:
With all due respect to the law professors in the room, why would anyone expect the general public to have a coherent legal philosophy?
Good grief! It’s a democracy. Public opinion is not coherent — ever. Why would democratic government of, by and for the people be coherent? As it happens, independence, empathy, strong morals, respect for the nation’s values as they are today, and respect for precedent really are all important values for a judge to consider. They’re hard to balance, which is why expect judges to be, you know, sage and judicious.
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November 20, 2009, 11:24 pmbyomtov says:
I don’t actually see the giant inconsistencies here that others seem to. First of all, the majorities on each question are not necessarily the same people, though of course there must be some overlap.
More important, the questions seem vague enough to allow for many sets of answers. For example, “should judges follow their conscience,” can be interpreted lots of ways. Someone might reasonably argue that a judge who stuck to the law even though the result seemed unjust was “following his conscience” in doing his duty as a judge, and of course that is perfectly consistent with “strictly follow the law.”
Similarly, “protecting people without power” can be interpreted as making sure that everyone gets a fair hearing, regardless of wealth or position. Who disagrees with that?
I’m not arguing that everyone took the questions that way, just that they are vague enough that screams of “inconsistency” don’t seem to be warranted.
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November 21, 2009, 12:10 amJohnF says:
I would think a better question than the intention of the authors would have been the understanding of the words in the Constitution by those who were agreeing to be bound by it–that is, the people generally and not the authors in particular. To put it more simply, what the words meant in general usage when the provision was adopted.
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November 21, 2009, 12:22 amNick B says:
I wonder how many respondents realize that the ultimate “people and groups with power” is the US Federal Government?
Nick
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November 21, 2009, 1:10 amShag from Brookline says:
Hermeneutically speaking, this is all so circular it’s dizzying.
By the way, Jamal Greene has written several excellent articles critical of originalism.
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November 21, 2009, 7:23 amDjDiverDan says:
Frankly, given that a majority of the population from which this poll was taken probably could not answer the simplest questions about the Constitution (i.e., “What are the qualifications for becoming President? What Article governs how the Constitution is amended? How many States must ratify an Amendment for it to become part of the Constitution? Which Article creates the Judiciary? Which Article specifies the powers of the Legislative Branch?”), I have a great deal of trouble taking this poll seriously. It’s a lot like looking at those silly USA Today Polls that Newspaper editors mistake for news — If I took a poll of American Third graders asking their opinions on quantum mechanics vs. multi-dimentional string theory, would you accept the results as evidence of ANYTHING except that the polled population was appallingly ignorant of the subject matter?
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November 21, 2009, 10:05 amanomdebus says:
I think you can try to simplify things this way, but you lose valuable information. Both theory and preference inform the other. Theory guides what is acceptable (though not necessarily mandatory) and preferences can prejudice you for or against certain theories (though they are not necessarily incompatible, just less convenient).
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November 21, 2009, 12:50 pmKevin says:
As you dig into these data a bit deeper than top line results, it would be very interesting to see kind of dimensions do these data reveal when subjected to factor analysis. Also, in addition to the possible covariates you outline before, I’d be interested in seeing correlations with questions on a political knowledge battery and measures like Stan Feldman’s batteries on humanitarianism.
Specifically, I would hypothesize:
H1: There are at least two distinguishable dimensions: liberal — conservative, and output-oriented vs. input-oriented.
H2: Input vs. output dimensions predicted by humanitarianism and authoritarian (or attitudes towards rule of law) scales.
H3: These dimensions are better correlated for high-knowledge respondents than low-knowledge respondents, who are more likely to know how these dimensions have aligned in contemporary American politics.
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November 21, 2009, 5:08 pmCJColucci says:
I think trotsky — evil monster that he is (we must, of course, denounce evil people every chance we get, whether the occasion calls for it or not)– gets this right. Taken as separate questions, the results are incoherent. Cobbled together into a “theory,” the results are incoherent. But, ultimately, they make sense because everyone is right that all of these considerations are important, and judges who don’t have a theoretical or political ax to grind juggle them all the time, and are right to do so.
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November 21, 2009, 11:32 pmMonday Round-up | SCOTUSblog says:
[...] Persily, guest-posting on both Balkanization and Volokh, presents the results of a recent survey, which he (and others) designed to measure [...]