BREAKING NEWS: Same-sex marriage is coming to the Supreme Court!
On Friday, the Supreme Court announced that it will review the Ninth Circuit’s decision on the Proposition 8 case (Perry v. Schwarzenegger) , and it will also hear a case that challenges the Defense of Marriage Act (United States v. Windsor). Minutes after the announcement, I got the following e-mail message from Courage Campaign, a non-profit organization that has fought tirelessly on behalf of marriage equality (and other progressive issues as well):
Gayle, it’s time to go all in on the nation’s biggest stage. Chip in $15 or more NOW to help us secure a win at the Supreme Court to end Prop 8, DOMA, and possibly same-sex marriage bans nationwide. We can’t afford a loss and we need to move quickly.
Why are they asking for money? I thought to myself. How does money get a judge to rule one way or the other? Maybe Courage Campaign is a big scam, playing on my emotions in order to get my money. Or maybe they’re trying to raise BIG MONEY in order to pay off Justice Kennedy. (NOTE: It’s the end of the semester for me, and being tired and stressed probably contributed to these dastardly, unclean thoughts.)
Then I read on:
Legal experts all say the courts follow public opinion. Justices listen to arguments by day, but read the news and talk to friends and family at night. That means that we need to wage a nationwide public education campaign that shows the harm inflicted on same-sex couples and their families by discriminatory laws like Prop 8 and DOMA.
The courts follow public opinion??? Last I heard, it’s usually the other way around. Decades of social science research indicate that, when a landmark court decision is made (such as Brown v. Board of Education), or when a groundbreaking piece of legislation is passed (such as the Civil Rights Act of 1964), these policy decisions tend to have a powerful influence on public opinion. Gordon Allport, a social psychologist who wrote the classic text The Nature of Prejudice, argued in his book that stateways (laws and policies) tend to shift folkways (attitudes, beliefs, and norms) – not the other way around. In fact, if you look at the events of 2012, you can see this pattern very clearly. Consider this:
- On May 8, 2012, North Carolina voters passed a constitutional amendment banning same-sex marriage and civil unions in their state – bringing the total number of states banning same-sex marriage to 39.
- The next day, President Barack Obama made a public announcement in support of same-sex marriage.
- To date, North Carolina is the last state in the U.S. to have banned same-sex marriage.
Get my drift?
But the Courage Campaign people are saying the opposite. So which is true? Maybe the research can tell us.
Let’s start with the judges’ preexisting attitudes. A 2011 study led by Ryan Black of Michigan State University, published in the Journal of Politics, examined all justice utterances made in cases argued between 1976 and 2008, and then further examined individual-level voting patterns in cases presented between 2004 and 2008. After sifting through hundreds of thousands of utterances, what did Black and his colleagues find? When U.S. Supreme Court justices make their arguments using emotionally volatile language, the side that uses a greater proportion of harsh language is more likely to lose its case. An example? In McCreary v. ACLU (2005), a case that addressed the issue of displaying the Ten Commandments in public schools and courthouses, Scalia used the word “idiotic” twice during his arguments. At the end of the day, the majority of the remaining justices did not take his side. Clearly, angry sputtering does not win a case.
But judges are supposed to be “impartial,” right? The worst thing you can say to a person on the bench is that they’re an “activist judge.” When Ninth Circuit Judge Vaughn Walker ruled that Prop 8 was unconstitutional, that’s exactly what he was called by the opposition – an “activist judge.” As crippling and insulting a statement that is, the reality is that judges are humans too – with real feelings, real attitudes and beliefs, real opinions on a variety of different issues. Most of the time, according to a 2007 Law & Society Review study, judges are very careful to set aside their ideological beliefs and instead weigh the merits of the legal arguments. The exception to that? In “salient” cases – cases that are high-profile and controversial – personal beliefs tend to carry more weight in the judges’ decision-making process. And I think it’s fair to say that Perry v. Schwarzenegger and United States v. Windsor are VERY salient cases.
So far, we have lots of evidence of the humanness of Supreme Court justices. But what about our original question – do the courts follow public opinion? Logically speaking, it would seem so – if the public votes for the President, and the President selects Supreme Court justices, then public opinion influences the Supreme Court. However, in a 2011 study published in the Journal of Politics, researchers from Emory University investigated whether a more direct link exists between public opinion and judicial decision-making. The specific theory they tested is what’s called an “attitudinal change explanation” – the idea that attitudes of Supreme Court justices are likely to change dramatically over time, in tandem with public opinion. According to their findings, Supreme Court justices are influenced by the exact same factors that shift opinion in the general public. When a cultural norm begins to shift, people’s attitudes begin to conform more strongly to that norm – and Supreme Court justices are no exception to that.
Based on these findings, if marriage equality activists want to celebrate a victory next spring, what should be in the strategic playbook?
- Demonstrate that public opinion solidly supports marriage equality rights.
- Saturate the media in order to preserve the salience of this issue.
- Pray that Justice Scalia goes on a rant with scathing homophobic vitriol.
Maybe the Courage Campaign isn’t a scam after all.