There is wide scholarly agreement that the frequent replacement of justices has kept the Supreme Court generally attuned to public opinion. Recent research indicates that, in addition to this indirect effect, Supreme Court justices respond directly to changes in public opinion. We explore the two causal pathways suggested to link public opinion directly to the behavior of justices and the implications of the nature and strength of these linkages for current debates concerning Supreme Court tenure. The recent increase in the stability of Court membership has raised questions about the continued efficacy of the replacement mechanism and renewed debates over mechanisms to limit judicial tenure. Our analysis provides little evidence that justices respond strategically to public opinion but provides partial support for the idea that justices' preferences shift in response to the same social forces that shape the opinions of the general public. Our analysis offers preliminary evidence that—even in the absence o...

https://www.jstor.org/stable/10.1017/S0022381608080316

The Supreme Court in American Democracy: Unraveling the Linkages between Public Opinion and Judicial Decision Making

A popular argument that is commonly put forth as an explanation linking digital technologies to political polarization is related to their ability to foster the emergence of echo chambers where extremist ideas are amplified. Sunstein (2018), a leading proponent of this view, argues that the main characteristic of social networking sites is that they allow politically like-minded individuals to find one another. In this environment, citizens are only exposed to information that reinforces their political views and remain isolated from other individuals with opposing views, in part due to the filtering effects of ranking algorithms that generate filter bubbles (Pariser, 2011) and create incentives for publishers to share clickbait and hyperpartisan content (Benkler et al, 2018). The outcome of this process is a society that is increasingly segregated along partisan lines, and where compromise becomes unlikely due to rising mistrust on public officials, media outlets, and ordinary citizens on the other side of the ideological spectrum.

Social Media, Echo Chambers, and Political Polarization

This wide-ranging comparative account of the legal regimes for controlling administrative power in England, the USA and Australia argues that differences and similarities between control regimes may be partly explained by the constitutional structures of the systems of government in which they are embedded. It applies social-scientific and historical methods to the comparative study of law and legal systems in a novel and innovative way, and combines accounts of long-term and large-scale patterns of power distribution with detailed analysis of features of administrative law and the administrative justice systems of three jurisdictions. It also proposes a new method of analysing systems of government based on two different models of the distribution of public power (diffusion and concentration), a model which proves more illuminating than traditional separation-of-powers analysis.

Controlling Administrative Power: An Historical Comparison

Debates about media concentration and its adequate handling are not coming to an end. This paper stresses the dual character of media goods, the underlying ideological ideals, and the attendant institutional setting as source of value conflict in communications policy making. It discusses this value conflict and gives examples of where it surfaces and how it is confronted. It is particularly evident in cases of media concentration. Newly introduced communications laws and policies within Europe and the USA aim to reduce (ownership) regulation, promote competition and cope with the challenges posed by convergence. This quest is coupled in part with protections of media pluralism through custom-developed indices for measuring concentration in media markets and tests for assessing media plurality in merger cases. The paper describes and discusses such new methods and instruments as novel but imperfect attempts by policy makers to respond to the various challenges in communications such as value conflict, convergence, the need for empirical proof and claims for non-economic ways of assessing media diversity. It concludes by stressing the need to re-emphasize normative claims as essential guiding elements of communications policy making.

/pdf/measuring-media-concentration-and-diversity-new-approaches-2p9abz8jym.pdf

Measuring media concentration and diversity: new approaches and instruments in Europe and the US:

Misinformation, Disinformation, and Online Propaganda

Immediately following the Supreme Court's opinion in Red Lion Broadcasting Co. v. FCC,' which sustained the constitutionality of the Federal Communications Commission's (FCC) Fairness Doctrine,2 a flurry of articles appeared describing how to apply the doctrine vigorously to new and different situations.3 Subsequently, especially after the Court's decision in CBS v. Democratic National Committee4 curtailed access possibilities, and Miami Herald Publishing Co. v. Tornillo 5 refused to sustain right to reply laws for candidates attacked by the print media, most discussions of the Fairness Doctrine have addressed its constitu-

https://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=2903&context=dlj

The Fairness Doctrine Today: A Constitutional Curiosity and an Impossible Dream

For students of telecommunications law and technology, it has become a trivial ritual to observe that telecommunications technologies and media are converging. Neither producers nor purchasers of audio or video information should find much use, in the near future, for such terms as "television," "computer," "telephone," or "radio." These objects are no longer distinct devices and we believe that any differences among them are ephemeral. For students of constitutional law and the Supreme Court's jurisprudence of the First Amendment guarantee of freedom of speech, these observations are likely to trigger a different ritual incantation: "Different communications media are treated differently for First Amendment purposes."' How can one reconcile the fact of technological and media convergence with the legal presumption of distinct treatments? We argue in this Essay that this dilemma should not be resolved by permitting the First Amendment to be used as a sword to prevent communications convergence or as a shield to permit government agencies to force these technologies into distinct, procrustean categories. Rather, the latest advances in telecommunications provide federal courts the opportunity to discard the inherently silly notion that freedom of speech depends on the configuration of the speaker's voicebox or mouthpiece.

https://scholarship.law.wm.edu/cgi/viewcontent.cgi?article=1932&context=facpubs

Converging First Amendment Principles for Converging Communications Media

/pdf/the-political-battle-for-the-constitution-4rstt8fx74.pdf

The Political Battle for the Constitution

'The Supreme Court follows the election returns', the fictional Mr. Dooley observed a hundred years ago. And for all our ideals and dreams of a disinterested judiciary, above the political fray, it seems Mr. Dooley was right. In this engaging - and disturbing - book, a leading historian of the Court reveals the close fit between its decisions and the nation's politics. The story begins with the creation of the Constitution and ends with the June 2008 decisions on the rights of detainees at Guantanamo Bay. Rendering crisp (and often controversial) judgments on key decisions from Marbury v. Madison to the War on Terror, Lucas Powe shows how virtually every major Supreme Court ruling, however deftly framed in constitutional terms, suited the wishes of the most powerful politicians of the time. This history reflects a changing Court, from the country's early struggles over commerce and transportation to the torturous justifications of slavery before the Civil War, to a post - New Deal interest in ending segregation, controlling criminal procedure, and addressing knotty questions arising from the Cold War. Through all of this the Court emerges as part of a ruling regime, doing its best to implement the regime's policies. Drawing on more than four decades of thinking about the Supreme Court and its role in the American political system, this book offers a new, clear, and troubling perspective on American jurisprudence, politics, and history.

/pdf/the-supreme-court-and-the-american-elite-1789-2008-1twyh2ztxk.pdf

The Supreme Court and the American Elite, 1789-2008

Are "the People" Missing in Action (and Should Anyone Care)? THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW By Larry D Kramer[dagger] New York: Oxford University Press, 2004 Pp xii, 363 $2995 For almost a half century, the Supreme Court has claimed that it is the final authority on the meaning and interpretation of the Constitution1 This notion is most forcefully asserted in the O'Connor-Kennedy-Souter opinion in Planned Parenthood v Casey, where the trio argued that when the Court decided a contentious constitutional issue, it was the duty of all Americans to put their differences aside and follow the Court's lead2 Subsequently, in Boerne,3 Dickerson,4 and Morrison,5 a majority of the Court signaled their adherence to the belief that the Court is the sole authoritative expositor of the Constitution This allegiance was subsequently validated when awestruck Democrats conceded that Bush v Gore6 (while disagreeable and wrong) was within the Court's province as "the ultimate interpretation of our Constitution" and had to be accepted7 If the ranking Democrat on the Senate Judiciary Committee believes this, it is no wonder that ordinary citizens do not "gainsay" the Court8 It wasn't always like this Thomas Jefferson never believed that the judiciary had the last word9 Andrew Jackson vetoed the rechartering of the Bank of the United States,10 showing his contempt for McCulloch v Maryland11 Abraham Lincoln and the Republicans rejected Dred Scott12 and refused to be bound by it (except in its exact holding that Scott was not free)13 Franklin D Roosevelt had prepared a message announcing that he would ignore the Court's decision in the Gold Clause Cases14 And if the Court had intervened uninvited into the deadlocked presidential election of 1876,15 the losers would not have been resigned to claiming "we've been robbed"16 Larry Kramer's The People Themselves demonstrates that "[t]his modern understanding    reflects neither the original conception of constitutionalism nor its course over most of American history"17 Thus until the modern era, "[P]roblems of fundamental law-what we would call questions of constitutional interpretation-were thought of as    problems that could be authoritatively settled only by 'the people' expressing themselves through"18 voting, petitioning, pamphletting, public meetings, as well as through intimidation of officials, and, if necessary, mob action19 This was a world of popular constitutionalism where the people exercised "active and ongoing control over the interpretation and enforcement of constitutional law"20 The Court was one, but only one, player in identifying the meaning of the Constitution Although Kramer is not an originalist,21 The People Themselves is a plea for the revival of the beliefs and actions of this earlier period While Kramer's history through the Jacksonian Era is sound, his conclusions about the past fifty years are deeply flawed First, he is oblivious to numerous modern movements that have vigorously opposed, in a variety of forms and fora, the Court's interpretation of the Constitution second, a look at these movements raises serious questions regarding how normatively attractive popular constitutionalism is in our era It may be, contrary to Kramer's position, both that we still have popular constitutionalism and that we would be better off without it I see four possibilities that may explain why I can see popular constitutionalism where Kramer does not First, Kramer's interpretation of what constitutes popular constitutionalism may be so elusive that only he can apply it Second, perhaps Kramer is indifferent to American constitutional development (outside the Court) after the Court-packing plan Third, maybe Kramer sees popular constitutionalism only when he approves of the goals of the protestors Finally, maybe deeds alone are insufficient for Kramer and without the requisite magic rhetoric they do not carry the appropriate meaning …

L. A. Powe

Papers

The Fairness Doctrine Today: A Constitutional Curiosity and an Impossible Dream

Converging First Amendment Principles for Converging Communications Media

The Political Battle for the Constitution

The Supreme Court and the American Elite, 1789-2008

Are "The People" Missing in Action (and Should Anyone Care)?