Public Views of the U.S. Supreme Court: A Marquette Law School Poll and Conference

US Supreme Court

On October 21, the Marquette Law School Poll will release the results of a nationwide survey of public opinion about the Supreme Court of the United States. How much do citizens know about the Court? How informed are they about the Constitution? What, if anything, do they think of the justices? With respect to recent decisions of the Court, how much of the public supports or opposes the Court’s rulings? How much is opinion of the Court and its decisions based in partisan or ideological affiliations of voters? Do opinions of the Court influence presidential-vote choices? Does the public see the Court as legitimate? The Marquette Law School Poll Director, Professor Charles Franklin, will present the results of a unique national survey devoted entirely to knowledge and opinion of the U.S. Supreme Court.

We will then present three panels of reaction or reflection about the survey or the general topics that it implicates. Panelists will include the following:

  • from the bench and bar, Judge Diane S. Sykes of the U.S. Court of Appeals for the Seventh Circuit; Peter D. Keisler, co-leader of Supreme Court and Appellate practice, Sidley Austin, Washington D.C.; and Thomas L. Shriner, Jr., partner in Foley & Lardner and adjunct professor of law at Marquette University
  • from the academy, Professor Lawrence Baum (political science), The Ohio State University, and author (with Neal Devins) of The Company They Keep: How Partisan Divisions Came to the Supreme Court (Oxford 2019), and Tara Leigh Grove (law), William & Mary, author of The Supreme Court’s Legitimacy Dilemma, 132 Harv. L. Rev. 2240 (2019)
  • from the press with deep experience with respect to the Court, Robert Barnes (Washington Post) and Carl Hulse (New York Times and author of Confirmation Bias: Inside Washington’s War over the Supreme Court, From Scalia’s Death to Justice Kavanaugh (Harper & Collins 2019))

Other participants will include my Marquette colleagues, Chad M. Oldfather, professor of law, and Mike Gousha, distinguished fellow in law and public policy. We regard this survey as an opportunity to offer not just opinion from the public but also a variety of explanations to the public about how the judiciary, or the Supreme Court in particular, comes to decisions.

Since its establishment almost eight years ago, the Marquette Law School Poll has developed a substantial national reputation. This latest survey, too, will be a public good, and it should be of considerable lasting interest.

Please join us at Marquette Law School, in Eckstein Hall’s Lubar Center, for the conference (Monday, October 21, 8 a.m.–1:30 p.m.). Registration is required and available here. Questions may be directed to Rita Aleman, program manager of the Law School’s Lubar Center for Public Policy Research and Civic Education.

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Franklin Says Poll Results Show Shift Toward Republican Identification

There’s something happening here, and what it is is becoming clearer: A shift in the overall partisan make-up of Wisconsin’s voting population toward Republicans.

It’s not a huge shift – a couple percentage point increase in the number of people who identify as Republicans or as leaning Republican, a similar decrease in the number who identify as Democrats or as leaning Democratic. The result is a near tie in partisanship, compared to several years ago when the Democrats held a slight advantage. But it is enough of a change to suggest that the polarized political make-up of Wisconsin is becoming more polarized, and the state’s propensity to have elections with very close outcomes may be getting stronger.

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Do primary voters strategically vote in the opposition’s primary?

Periodically political enthusiasts express concern that members of a particular political party will conspire to swing the result of the opposing party’s primary election by strategically voting for a candidate who does not express the actual will of that party’s “real” voters. This form of bad-faith strategic voting is sometimes called party raiding.

Party raiding is only feasible in states with open primaries, and fear of it is sometimes used as a argument in favor closed primary systems, which only allow registered partisans to vote in their respective primaries.

Wisconsin is an open primary state. In fact, the state’s Election Commission maintains no records of party affiliation whatsoever. Every party’s primary contests share space on a single ballot. Voters choose their preferred party in the privacy of the voting booth. No state presents fewer barriers to strategic party raiding than Wisconsin.

Nonetheless, there is no evidence that this kind of voting behavior occurs at all in Wisconsin. As I mentioned, registered voters do not have the option to formally affiliate with a party in Wisconsin. We can, however, measure party identification through public opinion data.

I pooled the results of three Marquette Law School Polls preceding the 2016 presidential preference vote and three surveys preceding the 2018 partisan primary. The combined dataset includes 3,515 likely voters. Each respondent was asked if they planned to vote in either the Republican primary, the Democratic primary, or if they didn’t plan to vote at all. We also recorded answers from respondents who insisted they would vote in “both” primaries, even though this would result in a spoiled ballot if carried out.

Respondents were also asked if they “usually think of yourself as a Republican, a Democrat, or an Independent.” Those who answered “independent” were then asked, “Do you think of yourself as closer to the Republican Party or to the Democratic Party?” We consider those who answered affirmatively as “leaning” partisans.

Here is how each partisan group planned to vote in the upcoming primary.

Stated intentions of Wisconsin primary voters by party ID, data from 2016 and 2018
partyID Republican primary Democratic primary Won’t vote Both Don’t know Refused
Rep 89 2 5 1 3 0
Lean Rep 77 4 9 1 7 1
Ind 25 16 17 3 36 4
Lean Dem 7 75 8 1 9 1
Dem 2 89 5 1 3 0

An identical share (2%) of Republicans and Democrats planned to vote in the other party’s primary. Even if this tiny share of people were indeed “party raiding,” they cancelled each other out. But there is no good evidence suggesting they weren’t voting in good faith. In the following general elections the share of self-identified Democrats or Republicans voting for a nominee of the other party exceeded 2%, so it’s quite likely that some share of self-identified Democratic voters genuinely preferred one of the Republican primary candidates and vice versa.

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