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Supreme Court and Public Opinion

The Supreme Court of the United States was established in 1789 as part of the basic three sections of the American governmental system: Executive (President and Staff), Legislative (Congress), and Judicial (Supreme Court System). Each U.S. State also has a supreme court, which is the highest law for interpreting cases that move into that jurisdiction. Essentially, the Supreme Court has the ultimate jurisdiction over all federal and state courts regarding issues of Constitutional and Federal law. The sitting justices are nominated by the President, confirmed by the Senate, and are lifetime appointees unless they retire, resign, or are impeached (United States Constitution - Article III, 2011). As the highest court in the nation, then, we must ask if the Court influences public opinion, or is it the social and cultural processes rising from the public that influence the Constitutional interpretation from the Court?

The Justices, of course, since they are appointed by the President, have their own specific political and social views. The primary job of the Court, however, is to interpret the Constitution as a living document. The popular view, however, that the Court is sharply divided under political or ideological lines (conservative, moderate, liberal) is more of a preconception or caricature. For instance, in 2009, half the cases that were decided were unanimous, 20% with a 5-to-4 vote and less than 10 total cases fit the liberal/conservative divide (Goldstein, 2010). This, of course, does not mean that the decisions of the high court do not influence society in politicized ways, but the influence tends to be more on an interpretive basis than strictly ideological.

Each Justice, though, has clerks that they hire based on legal promise and view. These clerks are given considerable leeway in the opinions they draft for the Justices. From the 1940s into the 1980s these positions were rather unpartisan, but after the 1990s political affiliations become more the voice for certain agendas even becoming more like the political branches of the government. "We are getting a composition of the clerk workforce that is getting to be like the House of Representatives. Each side is putting forward only ideological purists." The Judges seem far more likely to hire clerks who worked for either conservative or liberal judges, or those appointed by more partisan lines (Liptak, 2010). One prominent law review stated that these trends tend to make the public view that Court politicization and polarization is more pronounced than voting shows, giving the public the idea that the high court is "a super legislature responding to ideological arguments rather than a legal institution responding to concerns grounded in the rule of law" (Nelson, W., et al., 2009).

The Process and the Public

The Supreme Court does not take every case placed before it. The Court may review any case in the Federal Court of appeals, but most cases come to the court through writs of certiorari. Cases must go through a process to reach the court and must hold interest for Court Justices, as well as be considered important enough to rule based on the Constitutionality of the case. The Court also has final jurisdiction on cases that involve state vs. state, or the state against the federal government. In a given year, the Court receives about 7,000 petitions, but is able to hear oral arguments or briefs in less than 100. In a sense, this is a selection process that culls what the Court thinks is important, and thus sends a message to the public about what social issues are important. Thus, not only do the decisions of the Court mitigate public opinion, but even if the decision is not made in favor of a view, the message is sent based on case selection. This would indicate that the impact of more broad trends in the ideology of the public mood is linked "through the effects of public opinion on the ideological composition of Congress and the party of the President and, via these linkages, thorough changes in the [overall] ideological composition of the Supreme Court" (Mishler & Sheehan, 1993, p.96).

At the conclusion of oral arguments, cases are submitted into a decision que. Within the term of the court, there is no particularly time obligation to release a decision. A meeting is held and preliminary votes tallied, and the most senior Justice in the majority assigns the initial draft of the Court's official opinion to a Justice…[continue]

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