January 20, 2011

Citizens United, Foreign Spending Limits, and the Majoritarian Thesis

If you read one law review article this season, make it Rick Pildes's excellent new article, Is the Supreme Court a Majoritarian Institution? (forthcoming, Supreme Court Review). Using Citizens United as a jumping off point, Pildes takes issue with the commonly-made academic claim (or related set of claims) that the Supreme Court generally follows majority preferences. Pildes takes the claim apart, and puts it up against the evidence. He demonstrates that at least in the modern era, the Court does not appear to follow majority preferences, and there may be good reasons to believe that especially now (given the breakdown of the appointments process in the Senate, and the unprecedented long tenure of Justices on the Supreme Court in the last few decades), the Court is unlikely to remain (or become) constrained by majority will.

I have not undertaken any kind of systematic study of the majoritarian thesis, and I think Pildes is right that, especially today, there is little reason to believe that Court opinions generally will line up with either the preferences of a majority of voters or with Congress (to the extent we can talk about majority preferences of Congress). I do believe, however, that the Court is somewhat responsive to public opinion, and that the Justices, especially Chief Justice Roberts, are sensitive to popular criticism of the Court. I think that may be part of the explanation for why the Court did not overrule section 5 of the Voting Rights Act in NAMUDNO. I also think it is why the Court is more likely to engage in stealth overruling and other tools I'm now writing about (draft to be posted soon). I also think, as judged by Justice Alito's reaction to the state of the union speech, that public criticism of the Court in high profile cases may sting, and could lead some members of the Court to restrain themselves from voting their full set of preferences. As I wrote in my recent Michigan Law Review article on CU, public opinion may bind (at least some) Justices to operating within a range of conduct. Based on this intuition, I've made the empirical prediction that the Court is unlikely to hold that foreign nationals have the right to engage in campaign spending in candidate elections, even though the logic of Citizens United should lead the Court to recognize such a constitutional right. Thanks to a new case, we may learn within the next couple of years whether this empirical prediction is correct.

Posted by Rick Hasen at January 20, 2011 03:12 PM