By Marcia Coyle From The National Law Journal

Conservative talk radio sometimes bashes the U.S. Supreme Court for its purported liberal activism run amok, but the court actually lies close to the center of public opinion and indeed leans to the right, according to new research.

Neil Malhotra, an associate professor of political economy in Stanford University’s Graduate School of Business, and Stephen Jessee, an associate professor of government at the University of Texas, set out to investigate how well the court reflects public opinion.

They discovered that although most people have accurate perceptions of the court, those who are wrong are “substantially” more likely to misperceive it as too liberal than too conservative. And in that misperception, Republicans are more likely to be wrong than are Democrats.

“There’s been a lot of discussion in mass media and scholarly articles about this issue of representation,” Malhotra said. “How well do American political institutions represent the people? They seem to be getting much more extreme.”

But what about the Supreme Court?

“We heard conservative media complaints about the court’s unrepresentativeness,” Malhotra said. “The cases that really get a lot of attention tend to be the ones where the court makes liberal decisions: the ruling in the Prop 8 case in California; Obamacare [the Affordable Care Act]; some of the affirmative action cases. But when you look at most of what the court is doing, it’s a lot of 9-0 types of business decisions or 5-4 conservative decisions. We thought it was a good idea to investigate public perceptions of the court.”

The scholars asked a random sampling of 1,500 citizens how they would have voted in 10 cases decided by the Roberts Court. The cases covered a wide range of important issues that could be explained to the subjects in a reasonable number of words.

The cases involved the civil commitment of federal sex prisoners; the Second Amendment; a Christian cross in a national preserve; employment discrimination; a state voter identification law; lethal injection; the racial composition of public schools; a federal anti-abortion law; and Guantánamo Bay military commissions.

The researchers looked at the entire set of cases decided between October 2005 and June 2010—beginning with the appointment of Chief Justice John Roberts Jr.—to estimate the ideological leanings of the 11 justices who decided cases during that period. They also estimated the location of the court as a whole, according to the majority disposition in each case.

These two approaches allowed Malhotra and Jessee to place the citizens and the court along a common scale—and to measure the percentage of cases in which each citizen agreed or disagreed with the court and plot their “ideological distance” to its left or right. They found that 69 percent of the citizens tested as more liberal than the court, with the median voter falling slightly to the left of the court.

Malhotra emphasized that what matters are the relative positions. “You can’t say whether the court itself is liberal or conservative,” he said. “All you can say objectively is, is the Supreme Court representative? And overall, it is—yes. It’s somewhat more conservative than mass opinion, but almost everyone is within one standard deviation of the court’s position.”

But that’s not how all of those sampled saw it subjectively. Malhotra and Jessee asked the 1,500 citizens for their assessments of the high court—too liberal, too conservative, about right? They compared those responses with the subjects’ positions on the ideological scale, as measured by their votes on the 10 test cases.

Only 41 percent said the court’s ideological location was “about right,” with 33 percent finding it “too liberal” and 26 percent “too conservative.”

And although those results were strongly related to whether the citizen identified as Republican, Democrat or independent, those who misperceived the court were 10 times more likely to view it as too liberal than too conservative. And Republicans were more likely to be wrong than Democrats.

“What surprised me was the magnitude of the effect—the number of people misperceiving the court as too liberal just dwarfed the number perceiving it as too conservative,” Malhotra said.

“It’s not just solely driven by Republicans, which might be what I would have expected,” he said. “A lot of independents to the left of the court perceive it as too liberal. Also, Democrats contribute to this effect too.”

So what is the source of the misperception and does it matter?

“Even though the court, often through Anthony Kennedy’s pivotal vote, has generally exhibited similar preferences to those of the American public, much of the rhetoric around the court highlights particular rulings that are anathema to Republicans, including recent decisions to uphold race-based affirmative action, repeal anti-sodomy laws, sanction key parts of Obamacare and require civilian trials for enemy combatants, among others,” the researchers write.

“There’s sort of a stereotypical image of the Warren Court [as liberal] that is a cultural mindset people have,” Malhotra said. “We’re speculating it’s kind of hard to dislodge that image. The media also tend to cover cases where the court does something unexpected—often a liberal position. If people are getting a lot of exposure to conservative media, that can also make people think the court is more liberal.”

They found a connection between the misperception and how much the individuals knew about the court. Of those who misperceived the court’s ideological position, Malhotra said, “They kind of don’t know what’s going on. They should be viewing the court as too conservative.”

The public’s perception, or misperception, of the court matters because the court depends on public trust for its decisions to carry weight, he said.

Still to be studied, the scholars said, is how these misperceptions affect judicial decision-making.

IMAGE: United States Supreme Court justices. Top row (left to right): Sonia Sotomayor, Stephen Breyer, Samuel Alito, and Elena Kagan. Bottom row (left to right): Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, and Ruth Bader Ginsburg. Photo: Steve Petteway/Collection of the Supreme Court of the United States via Wikipedia

For more on this story go to: http://www.nationallawjournal.com/id=1202720692715/Study-Supreme-Courts-Not-as-Liberal-as-People-Think#ixzz3UejBfGtW