171 Pages Posted: 1 Mar 2014 Last revised: 7 May 2014
Date Written: February 28, 2014
Can the Supreme Court influence the public’s reception of decisions vindicating rights in high salience contexts, like same-sex marriage, by reasoning in one way over another in them? Will the people’s disagreement with those decisions — and, by extension, societal backlash against them — be dampened if the Court deploys universalizing liberty rationales rather than essentializing equality rationales? Finally, even if Supreme Court reasoning does resonate with the people as a descriptive matter, should the Court be minimizing anxiety-producing characteristics in decisions vindicating civil rights — such as homosexuality in the marriage equality context — simply in order to assuage the people?
This Article combines constitutional theory and empirical legal analysis to ask and answer each of these questions. It uses the Supreme Court’s disposition of a marriage equality issue in United States v. Windsor as an opportunity to test empirically a theoretical claim made most recently by Professor Kenji Yoshino, namely that the Court’s reasoning in high salience contexts resonates with the people. Yoshino is not the first to argue that Supreme Court reasoning matters to the public or that the Court ought to decide cases in a certain way in order to influence the public’s reception of its decisions. He is, however, the first to argue that the Court ought to lead with liberty (rather than with equality) in a variety of contexts involving group-based civil rights because of liberty’s putative power to satisfy the people.
Skeptical of Yoshino’s positive claim and troubled by his strategic advice to courts, we subjected Yoshino’s theory to empirical analysis by way of a national experiment. We conducted our experiment in May 2013 — two months after oral argument in Windsor and Hollingsworth v. Perry, when the issue of same-sex marriage was fresh in the public’s mind — to determine whether the Court’s reasoning in a fictional same-sex marriage case affects the public. Consistent with our intuition, we did not find broad support for the notion that reasoning resonates with the people. Based in part on our results and in part on our normative reservations with Yoshino’s tactical advice, we believe that judges and commentators ought to approach Yoshino’s suggested strategy with restraint.
Keywords: Constitutional Law, Supreme Court, Backlash, Same-Sex Marriage
Suggested Citation: Suggested Citation
Cahill, Courtney M. and Rapp, Geoffrey Christopher, Does the Public Care How the Supreme Court Reasons? Empirical Evidence from a National Experiment and Normative Concerns in the Case of Same-Sex Marriage (February 28, 2014). 93 North Carolina Law Review, 2014, Forthcoming; FSU College of Law, Public Law Research Paper No. 668; University of Toledo Legal Studies Research Paper No. 2014-08. Available at SSRN: https://ssrn.com/abstract=2402911