The question about whether there is a distinctive public reaction when the Supreme Court decides constitutional issues — the question of judicial backlash — permeates our discussions of constitutional law, yet we have little to no empirical research about how people think about this issue. To answer this question, we conducted an experiment before the midterm congressional elections in the fall of 2010. We hypothesized that people respond to an institution based on whether the institution is seen as supporting or threatening their cultural worldview. Half of study subjects were assigned to a condition in which a constitutional right to gay marriage was protected and the other half were assigned to a condition in which a constitutional right to carry a concealed weapon was protected (with half of each of these subject populations being told the Court decided the issue and half being told that Congress did). Our results support the hypothesis that the cultural valence of the decision by the Court or Congress triggered the institutional choice of subjects. The Court does polarize underlying opinions on the constitutional issue and voting preferences more than Congress does. Our results suggest complications for efforts to decide constitutional issues in a manner appealing to all Americans. Our results also suggest that the Court and Congress might be able aggressively to decide constitutional issues because the public has no fixed sense of their respective institutional roles. We conclude by discussing what our results mean for interested communities outside of government, including social movements and constitutional theorists.
David Braman & David Fontana, Judicial Backlash or Just Backlash? Evidence from a National Experiment, 112 Colum. L. Rev. 731 (2011)