Holding Steady on Shifting Sands: Countermajoritarian Decision Making in the U.S. Courts of Appeals, with Matthew E.K. Hall and Jason Harold Windett

Abstract: Empirical claims that U.S. Supreme Court decisions tend to follow public opinion raise important questions about the countermajoritarian role of the American judiciary. Yet, for the vast majority of federal cases, the de facto court of last resort is actually a U.S. court of appeals. We examine the role of public opinion in shaping decisions on these courts. We argue that the courts of appeals’ position in the judicial hierarchy, lack of docket control, and lack of public attention encourage circuit judges to ignore public opinion and adhere to consistent legal rules; however, appeals by federal litigants are strongly associated with public opinion. Consequently, circuit judges actively resist ideological shifts in public opinion as they issue consistent rulings in the face of varying case facts. Applying multilevel modeling techniques to a data set of courts of appeals decisions from 1952 to 2002, we find strong support for our theory.

Published: Forthcoming at Public Opinion Quarterly.