Representing Public Opinion: American Courts and the Appeals Process

Abstract

Whether American courts either do or should represent public opinion is a long‐debated issue. Some court rulings agree with nationwide public opinion polls, while others do not. Overall, does the appeals process bring judicial policy‐making more closely into line with American public opinion? Evidence from nationwide polls since the mid‐1930s suggests that U.S. Supreme Court decisions and federal appeals courts decisions better represent American public opinion than do the decisions of federal district courts or of state courts. A lower‐level court decision that agrees with nationwide public opinion is much more likely to be upheld upon appeal by an upper‐level court. The Supreme Court's certiorari decisions disproportionately select for review lower court decisions that disagree with nationwide polls. Five reasons for this pattern are offered.