The Supreme Court and Public Opinion: Judicial Decision Making in the Post- New Deal Period

Abstract

The countermajoritarian activism of the Supreme Court is usually assessed in terms of the willingness of the Court to overturn legislation and/or to protect minorities. Using these criteria, the post-New Deal Supreme Court emerges as an exceptionally active countermajoritarian decision-making institution. It is also important, however, to examine the relationship between the Court's decisions and public opinion. Such an examination reveals that the Court's decisions overturning legislation and/or protecting minority rights were often supported by the distribution or at least the trend of nationwide public opinion and that when such support was lacking, the Court seemed reluctant to act. Thus, the policymaking activism of the post-New Deal Supreme Court was perhaps more consistent with majoritarian principles than is sometimes supposed.