The Supreme Court at the Bar of Public Opinion Polls

Abstract

The idea that the American Supreme Court requires public support to function properly is not an inherent timeless truth. It has history. Currently, those who view it as a timeless truth use the famous dictum from The Federalist No. 78 to argue that without the power of the sword or the purse, the Court has merely public confidence. By tracking the way in which the Supreme Court and the American legal community have over the years changed their reading of The Federalist No. 78, I show how this understanding of the Court’s source of legitimacy has risen. I identify the invention of public opinion polling as the key event which is responsible for this shift in understanding judicial legitimacy in the US. Public opinion polls introduced for the first time in history an independent source of evidence, considered reliable by all relevant players, of public support for the Court. Only after this invention was the monopoly of the elected institutions over the claim of holding public support broken. With available measurement of public support for the Court, it was possible to understand judicial legitimacy in terms of public support rather than in terms of legal expertise. The change in how The Federalist No. 78 is read is one manifestation of this development. I also expose that a sentence written by Justice Felix Frankfurter paraphrasing The Federalist No. 78 — commonly used by political scientists to equate judicial legitimacy with public support — was written with a different understanding of judicial legitimacy in mind. By analyzing changes Frankfurter made to this sentence in the drafts leading to his dissenting opinion in Baker v. Carr, I show that Frankfurter was closer to Hamilton’s original intent in The Federalist No. 78 than to the revisionist current reading.

Keywords: legitimacy, public opinion polls, The Federalist No. 78, Felix Frankfurter