Courting Public Opinion

The Washington Post‘s Charles Lane reports some recent polling data about the Supreme Court that, where I can understand it, is quite interesting.

First, the part that is not as clear as it should be.

Thirty percent of those questioned in the [Fox News/Opinion dynamics] poll see the court as “too liberal,” while a plurality, 37 percent, say the court is “about right” in its decisions. Twenty percent say it is “too conservative.”

That represents a shift to the left in the public’s perception of the court from a Quinnipiac University poll conducted in late February and early March. In that poll, 19 percent saw the court as too liberal, 46 percent said it was about right, and 26 percent saw it as too right-leaning.

Who shifted to the left? The public, or the Court in the public’s opinion? The data suggest the latter; the prose could go either way.

Other poll results show the public closely divided about the Court’s holding in the Texas sodomy case (44% disapproving, 40% aprroving, the Court’s striking down of the Texas statute). Interestingly, the public was not closely divided over the Michigan rulings: “A strong 63 percent to 24 percent majority in the Fox poll objected to the court’s affirmative action ruling.”

Apparently trying to take the sting out of this dramatic finding, Lane then adds:

But on affirmative action, poll results are notoriously dependent on how the question is phrased. When Americans are asked, as they were in the Fox poll, whether they favor “allowing an applicant’s race to be a factor in college admission procedures,” the response is usually strongly negative. However, on the question, “Do you favor or oppose affirmative action programs for racial minorities?” a 49 percent to 43 percent plurality favors such programs, according to a June Gallup poll.

Query for Mr. Lane: do you really believe it is slanted, biased, misleading for a polling question to define affirmative action as “allowing race to be a factor”?

Oh, forget it. Fine. You win. We give up. Here’s my proposal that should satisfy affirmative action supporters: I will personally deliver the support of all affirmative action critics to every affirmative action policy or program that does not allow “race to be a factor.”

That should satisfy everybody, shouldn’t it? Of course, Lane et. al. might have a bit of trouble finding an affirmative program that does not allow race to be a factor, but that’s their problem.

One final thought: on the Sunday after the Black Monday of SAnDra’s opinion, Nicholas Lemann wrote in the New York Times Magazine that “[w]e now seem to have arrived at a national consensus on affirmative action….”

Indeed. The only problem is that the 63 – 24 consensus is the opposite of what O’Connor wrote into the Constitution. Oh, wait. My mistake. The consensus they had in mind really doesn’t have anything to do with “the public.” The consensus they seem to be responding to is the one prevailing among large corporations, the major newspapers, the military, and elite universities. You know, the sources to which liberals usually turn to get their bearings.

PostScript – I lied above. My real final thought is here. Lane also reports a CNN/USA Today poll taken right after the Texas sodomy law ruling showing that by 55% to 39% the public disapproves of gay marriage. Lane’s take? This was ” the lowest majority against gay marriage … since that poll began asking the question in 1996.” And what does Lane make of this? “So even if the court was in front of the public on homosexuality, it was within the mainstream.”

Does that mean the Court was high and dry, out of the mainstream, in ruling against the public’s 63% to 24% disapproval of racial preferences? For some reason, he doesn’t say.

UPDATE – Here’s a soon to be unpublished letter I’ve just sent to the Washington Post:

To the Editor:

Charles Lane reports (“Polls: Americans Say Court is ‘About Right,’ July 7) that by 63% to 24% Americans in fact disagreed with the Court’s recent ruling “allowing an applicant’s race to be a factor in college admission procedures.”

Lane implies, however, that this result should be taken with a grain of salt: “When Americans are asked, as they were in the Fox poll, whether they favor ‘allowing an applicant’s race to be a factor in college admission procedures,’ the response is usually strongly negative. However, on the question, ‘Do you favor or oppose affirmative action programs for racial minorities?’ a 49 percent to 43 percent plurality favors such programs, according to a June Gallup poll.”

If Mr. Lane believes the wording in the Fox poll was unfair, perhaps he could identify some “affirmative action programs” that are not based on “allowing an applicant’s race to be a factor.”

I suspect most critics of affirmative action would support such programs. I know I would.

ANOTHER UPDATE – The always reliable Stuart Taylor of National Journal gets the “consensus” issue exactly right today.

This [supporting preferences] was what the justices had been urged to do by the academic, journalistic, and corporate establishments, and by many retired military leaders, in an unprecedented outpouring of amicus briefs, scholarly articles, and op-eds arguing that racial diversity was so important as to justify preferences. But leading news organizations’ portrayal of this elite consensus as reflecting a popular consensus was a gross distortion. “Court Mirrors Public Opinion,” announced an especially preposterous front-page headline in The Washington Post; it was refuted by polls cited in the article itself. Indeed, every fairly worded poll ever taken on racial preferences has shown that overwhelming majorities of Americans — including, in many polls, African-Americans — disapprove. Unless ordinary citizens don’t count, the Court is well to the left of center on this issue.