Normative Preferences and Responses to Dissension on the U.S. Supreme Court

Abstract

Abstract With high profile cases being decided by 5-4 votes divided along ideological lines, there is a worry that frequent ideological disagreement over the Constitution will erode the legitimacy of the U.S. Supreme Court and the public’s acceptance of its decisions. While other scholars have studied the effects of dissenting opinions on public acceptance of decisions, we engage in a more nuanced analysis that takes into account a person’s normative preferences for how the Court should reach decisions. More specifically, we explore whether the effect of a dissenting opinion on public acceptance is moderated by the style of the dissent, or by the normative preferences of the person reading the dissent. We predict that there is significant variation within the public regarding the degree to which politics and public opinion should influence Court decisions, and this variation is important in explaining how people respond to disagreement between the Court’s justices. Our experimental survey first measures the degree to which respondents feel that judges should utilize public opinion or ideological considerations when making decisions, and then provides respondents with a fictional Supreme Court decision either with or without a dissenting opinion. We find that the effect of a dissenting opinion on acceptance of the decision and institutional legitimacy depends upon the normative preferences of the respondent and not the content or rhetorical style of the dissent.