As Noah Rothman of the conservative blog Hot Air put it Friday, polls show that “gay marriage is so popular that even Republicans are coming around.” A new CNN/ORC poll found that 63 percent of Americans side with gay and lesbian couples on their constitutional right to marry. That’s up from 49 percent in August 2010. Even 42 percent of Republicans and 43 percent of conservatives said they agree gays and lesbians should be permitted to wed.
“Fortunately for the stability of the republic, the United States Supreme Court’s justices do not take public opinion into account when deciding the cases before them,” Rothman wrote. “At least, they’re not supposed to keep public opinion in mind.”
Many political scientists have found a correlation between court decisions and public opinion, particularly in major cases. Though results have been mixed, several researchers have made compelling arguments that the justices are swayed by the will of the American people. They’re just not sure why.
During a forum at George Washington University this month, Justices Ruth Bader Ginsburg and Antonin Scalia debated public opinion’s influence on them and their colleagues. NPR’s Nina Totenberg asked why the court “has become more and more open to protecting the rights of gay people under the Constitution,” according to the Washington Blade.
Ginsburg said society has changed: LGBT people who previously hid their sexuality have come out and ended up being people's friends, relatives, and neighbors. “There hasn’t been any major change in which there wasn’t a groundswell among the people before the Supreme Court put its stamp of approval on inclusion in the equality concept of people who were once left out,” she said. (She made similar comments in an interview with Bloomberg this month. “The change in people’s attitudes on that issue has been enormous,” she said. “In recent years, people have said, ‘This is the way I am.’ And others looked around, and we discovered it’s our next-door neighbor—we’re very fond of them. Or it’s our child’s best friend, or even our child. I think that as more and more people came out and said that ‘this is who I am,’ the rest of us recognized that they are one of us.”)
Scalia disagreed. “We don’t know really what the people want,” he said, according to the New York Times. “Do you realize how removed we are from Joe Six-Pack?”
But surveys show public opinion is clear and well-publicized. “I think Scalia’s 100 percent wrong that we can’t know where public opinion is” on gay marriage, said Barry Friedman, a New York University School of Law professor, in an interview. “There’s just tons of polling and information about it at this point.”
In 2009, Friedman published The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution, a book that explores the correlation between changing public opinion and how the court rules. Friedman followed the major social movements and controversies of the 19th and 20th centuries and found that, over time and in important cases, the court has followed Americans’ will. There have been multiple attempts, using multiple methods, to measure whether public opinion influences the court, Friedman said, “and even though one could find fault with all of them, what’s notable is how frequently across a variety of different methodologies people come to the same conclusion.”
A separate analysis, published in the Journal of Constitutional Law in 2010, found that “when the ‘mood of the public’ is liberal (conservative), the Court is significantly more likely to issue liberal (conservative) decisions. But why is anyone’s guess,” wrote the paper’s authors, Andrew D. Martin of the University of Michigan and Lee Epstein of Northwestern (now of Washington University in St. Louis).
One theory behind the correlation is that the justices sometimes worry about backlash. Court-watchers predict the justices will rule in favor of gay and lesbian couples when they consider a gay-marriage case this year. But according to Friedman, some analysts say one compromise the court might reach, to give states some choice, would be to require states to recognize marriages licensed in other states, but not force them to sanction their own.
“There are some justices on the court, including frankly Justice Ginsburg, who’ve often worried about the court deciding these issues instead of letting society get there on its own,” Friedman said. “And society seems to be getting there on its own, in some places quickly enough.”
Another possible explanation for the influence public opinion has is the social theory that “people with more moderate ideological views are more likely to change their views in response to information about what others think,” Erik Voeten at Washington Monthly wrote in June 2013.
Friedman and Martin agreed that Justice Anthony Kennedy is the key vote.
“I think one would be hard-pressed to see Justice Kennedy choosing to not uphold the right to gay marriage, given the other cases that he’s been instrumental in deciding in the area,” Martin said in an interview. In Kennedy’s opinion in United States v. Windsor, in which the court struck down Section 3 of the Defense of Marriage Act in 2013, he described how federal law went against public opinion in New York, which recognized same-sex marriage.
It seems fair to conclude that, until recent years, many citizens had not even considered the possibility that two persons of the same sex might aspire to occupy the same status and dignity as that of a man and woman in lawful marriage. For marriage between a man and a woman no doubt had been thought of by most people as essential to the very definition of that term and to its role and function throughout the history of civilization. [...] Slowly at first and then in rapid course, the laws of New York came to acknowledge the urgency of this issue for same-sex couples who wanted to affirm their commitment to one another before their children, their family, their friends, and their community.
But the actual reason might not be that complicated. It could be that the same factors that influence the public—family members and neighbors coming out, for example—also sway the justices.
“It’s not like they’re Martians,” Friedman said. “They’re living here on the planet with the rest of us.”