Author Archives: Matthew Dickinson

The Media to Trump: Thank You Donald! May I Have Another?

Another day, another poll showing Donald Trump leading the Republican field for the 2016 presidential nomination and another round  of hand wringing by political pundits baffled by The Donald’s staying power. The latest WashingtonPost/ABC national survey has The Donald trumping his nearest Republican rival Jeb Bush by a whopping 10%, 23%-13%. That’s a gain of 18% for The Donald in just under two months, while Jeb’s support has remained static. To be sure, the poll was in the field just as The Donald’s comments regarding John McCain’s war hero status hit the airwaves, so the impact of this latest contretemps may yet to be fully felt in the polls. Still, it is clear that The Donald is exhibiting surprising – at least to the punditocracy – staying power as measured in national surveys of voting-age adults.

Of course, we have seen these types of candidate boomlets before. Political scientists John Sides and Lynn Vavreck documented this process of discovery, scrutiny and decline in their book The Gamble, the definitive study of the 2012 presidential campaign. But Trump’s “discovery” phase has exceeded those of his 2016 Republican rivals in terms of size and duration and, so far, he has sustained and even enhanced his support during the ensuing period of scrutiny.

It is tempting to attribute The Donald’s polling success to some combination of his personal characteristics and his stance on the issues. Perhaps, as some pundits contend, The Donald has tapped into a vein of deep-seated anger among Republican voters. From this perspective, his blunt talk and forthright stance on controversial issues like immigration resonate with a good portion of likely Republican voters. Perhaps. But there is likely a more prosaic reason to explain the Trump phenomenon: he is exploiting the media’s tendency to view nominating contests through the prism of campaign tactics and especially candidate personalities, a point I’ve made in previous posts. Trump has decades of experience in attracting and manipulating media coverage, and he had drawn on that knowledge and training to issue a succession of attention-getting statements that have consistently kept him in the media spotlight. In particular, capitalizing on the media’s focus on candidate personalities, he has turned the Republican nomination contest into a series of personality-driven feuds between Trump and leading members of what might be called the Republican Party establishment. The latest exhibit is Trump’s testy exchanges with South Carolina Senator and presidential candidate Lindsey Graham, culminating in Trump’s decision to give out Graham’s cell phone number during a campaign stop yesterday. “I did it for fun and everybody had a good time,” Trump said during a Fox & Friends interview last night. No, he did it because he knew the story would lead just about every news outlet for the next 24 hours, which it did. Like him or not, The Donald has the media on a string, and they seem only too happy to help him exploit their own vulnerabilities.

Consistent with my argument, in a Monkeycage blog post yesterday Sides and Vavreck show data indicating that Trump has received a disproportionate amount of news coverage since announcing his candidacy. That has surely contributed to his rise in the national polls, much as I suggested in earlier posts.

But does the media have any choice in the matter? In a comment to my last post, Middlebury College student (and presidency seminar alum!) Becky Van Dercook asks, “My one question/comment regarding this post is although the media should be taking Donald’s candidacy seriously, do you think that they shouldn’t be engaging in the outlandish and offensive commentary that he is making at all? And if they do, how can the buffoonish …nature of his commentary be completely ignored?” My short answer is: no, they shouldn’t engage in his outlandish and offensive commentary and yes, they can ignore it. And they should.  However, as I wrote in an earlier post, this does NOT mean relegating Trump to the entertainment pages. “Instead, journalists should take his candidacy seriously by pressing him on the details of his policy pronouncements, and helping the public understand the differences between the public and private sector. The sooner the media begins evaluating The Donald on the details of his policies and his governing expertise, rather than on his deliberately provocative comments designed to mobilize a disaffected public, the sooner The Donald’s political bubble is likely to burst.”  It’s that easy.  When Donald seeks the limelight by saying something outrageous, bury the statement and focus instead on what really matters in a presidential campaign.  If you absolutely must quote The Donald’s more outrageous claims, at least put them in some type of real-world context.

Put simply, the media makes choices about what constitutes “the news” and how it should be covered. There’s no reason why Trump giving out Graham’s cell phone number should have led almost every news story yesterday. And yet the political punditocracy fell all over themselves to report it.

How likely is it that the media will follow my advice regarding how to cover Trump? Not likely at all. That’s  because it has little incentive to do so. As Robert Schlesinger (another proud Middlebury graduate and presidency seminar alum!) acknowledged in his US News column yesterday, “’I’ll be honest, I burst out in giggles of delight when I saw the Washington Post/ABC News poll yesterday showing that Trump had opened substantial lead in the GOP field – not because I believe he has even the remotest chance of becoming the GOP nominee (though that would be fun too) but because it guarantees at a least a few more days of Web traffic Trump-mentum.”

Schlesinger is not the only journalist not-so-secretly rejoicing in Trump’s staying power. Despite the media’s harrumphing and hand-wringing over Trump’s “sideshow” candidacy and how it detracts from a discussion of serious issues, most journalists are absolutely giddy that rather than having to write months of stories analyzing meaningless polls and rehashing stale candidate biographies (Hillary’s pantsuits anyone?), they instead get to wax indignant about The Donald engaging in blood feuds with his Republican rivals. What could be better for a profession that has seen its audience and profit margins dwindling for years?  The Donald is the gift that, so far, keeps on giving!

Of course, it is worth remembering two important points. First, polls this early in the nominating process have very little predictive value in terms of forecasting the eventual nominee. Second, these are polls – not votes. To date, I know of no research indicating whether Trump has put together the infrastructure for an effective ground game in Iowa or New Hampshire. Political science studies indicate that the best way to get people to the polls is to contact them personally.  This is particularly crucial in low-turnout affairs like the Iowa caucus. There’s no evidence as yet that Trump has developed the necessary organization to do this. So, for now, Trump is exhibiting a lot of sizzle. But we have yet to see any steak.

In the short run, of course, the lack of a campaign organization is not likely to dampen media coverage of The Donald. But the next time you see a political pundit publicly weeping over what The Donald is doing to political discourse in this country, pay no attention to those crocodile tears. The media loves The Donald almost as much as he loves himself. And they are more than willing to show their love by engaging in the endless self-flagellation that is the essence of covering Trump’s run for the presidency. Please, please, stop me before I write another Trump story!

Never mind. He just said something newsworthy. Thank you Donald! May I have another?

Addendum 2.29 p.m.: Greg Dworkin points to still another poll, this one in the field after Trump’s war hero comments, that still shows The Donald leading the Republican pack.  So, the early evidence suggests his criticism of McCain apparently hasn’t hurt The Donald among Republican voters.

Why The Donald Trumps the Media (and What They Should Do About It)

With Donald Trump now vying with Jeb Bush for the top spot in the national polls for the Republican presidential nomination, one would think the media would begin more deeply investigating his stance on the issues, or documenting his governing philosophy. Instead, this morning’s Sunday talk shows all featured discussion of The Bombastic One’s latest off-the-cuff personal attack, this one targeting Arizona Senator John McCain for his recent description of Trump supporters as “crazies”.  The Donald, of course, is not one to miss an opportunity to engage in personal warfare against any critic (Rosie O’Donnell anyone?) – indeed, he relishes these public feuds in no small part because he knows they provoke the media coverage that is partly responsible for fueling his meteoric rise to the top of the national polls.

In this instance, Trump responded to McCain’s “crazies” comment by calling McCain “a dummy”. When asked Saturday at the Family Leadership summit about criticizing a war hero, Trump opined, “He was a war hero because he was captured. I like people who weren’t captured.” Because the media has focused on these two sentences, it’s worth putting The Donald’s comments in context – here’s his extended remarks when asked about McCain – notice the audience reaction:

The Donald’s comments about McCain – as he intended – sucked up almost all the weekend media coverage, and left second-tier Republican candidates like Rick Perry trying to bolster their own anemic polling by expressing outrage over Trump’s criticism of a decorated war veteran. That, of course, meant that they spent part of their brief media time talking about The Donald, rather than their own candidacies – which is precisely what The Bombastic one wants.

Trump’s media coverage to date reflects a basic weakness of how journalists cover elections more generally – one I’ve talked about in previous posts: it tends to describe election contests in terms of candidate personalities and campaign tactics rather than focusing on candidates’ issue stances and expertise.  In Trump’s case, we see these media tendencies illustrated in spades. But by characterizing Trump as a bombastic buffoon who shouldn’t be taken seriously (the left-leaning Huffington Post recently announced it would move its Trump coverage to the entertainment pages) journalists are playing directly into Trump’s hands. In fact, his polling support is coming from that part of the electorate that is increasingly dissatisfied with what it views as a corrupt political establishment, one that is not addressing bread-and-butter issues like job creation, trade policy, immigration reform and border security. And the media, like it or not, is often viewed by these voters as part of that establishment.

As a classic example of how not to cover The Donald, look at Martha Raddatz’ interview with him today on George Stephanopoulos’ This Week morning show regarding his war hero comments. She repeatedly tries to publicly shame The Donald for his remarks and to insinuate that he is emotionally unfit to be president, but Trump adroitly uses the opportunity to double down on his earlier remarks and, not incidentally, to reach out to veterans. When the interview concludes Raddatz can barely prevent herself from rolling her eyes at The Donald’s remarks. However, I would not be surprised if Raddatz’ questions and demeanor actually bolstered Trump’s standing with a segment of Republican voters.

The problem with the media coverage, at root, is that its persistence in portraying The Donald as a cartoon figure is at odds with his undeniable accomplishments. While the media chases its tail in trying to hold the Donald accountable for his latest outrageous statement, he uses that coverage to cite his very real track record of getting things done, and to promise that he will reprise that record as President.

But it is in fact Donald’s private sector experience (and concomitant lack of political experience) that is potentially the real vulnerability of his candidacy, if only the media would take the time to examine it. Consider the following anecdote provided by the late, great political scientist James Q. Wilson in his classic book Bureaucracy, which is a study of how government works – or does not work, as the case might be. In the early 1980’s, as Wilson tells the story, the city of New York spent some $13 million dollars across a six-year period in an ultimately fruitless effort to renovate the Central Park skating rink. At this point The Donald stepped in and agreed to renovate the rink for $3 million, with any cost-overrun coming out of his own pocket. Mayor Ed Koch agreed to the deal. Trump completed the rink renovations a month ahead of schedule, and $750,000 under budget.

At first glance, this example seems to feed into The Donald’s argument that as president he would have the expertise and experience to get things accomplished. Indeed, that is precisely the mantra The Donald repeats at every campaign stop – his standard stump speech includes multiple statements that begin: “As President, I will” accomplish some objective, whether it means building a wall to keep out illegal immigrants, or negotiating a more favorable trade deal with the Chinese government, or any number of accomplishments.

But in reciting this story about the skating rink, Wilson is making a more subtle and important point, one that potentially undercuts the relevance of The Donald’s private sector experience as preparation to be President. Wilson is using the skating rink example to demonstrate how the very factors that made the Donald so effective in the private sector are rarely to be found in the political sphere. As Wilson acknowledges, The Donald proved far more efficient than did government in renovating the skating rink. But ultimately public policy is evaluated on more than narrow grounds of economic efficiency – instead, “government has many valued outputs, including a reputation for integrity, the confidence of the people, and the support of important interest groups.” When it comes to skating rinks (or any government program), Wilson argues, “A government that is slow to build rinks but is honest and accountable in its actions and properly responsive to worthy constituents may be a very efficient government, if we measure efficiency in the large by taking into account all its valued outputs.” I would add that governing in the public sphere at the national level requires an understanding of how to address the interests of those, such as members of Congress, whose support is required if the President is to accomplish his objectives.

By extension, Wilson is suggesting that the tactics that work so well for The Donald in the private sector are unlikely to be as effective when it comes to passing public policy. This is because other values – accountability, transparency, and equity – are embedded in our political process to a degree not seen in private sector transactions. As President, The Donald will find that he cannot run roughshod over the political constraints built into our national system of separated institutions sharing power. Building a wall to keep out illegal immigrants will be nothing like renovating the Central Park skating rink, and that is not simply due to the different scale of the projects. It is because the incentives facing political actors, including the President, do not reward them for maximizing efficiency alone, at least in the narrow economic sense. Instead, to achieve one’s goals in the political sphere means utilizing tactics that emphasize “we”, not “I”.  Based on his public statements to date, it is not clear how well The Donald understands this.

So how should the media cover The Donald? Not by ignoring him, or dismissing him as a “farce to be reckoned with”.  Instead, journalists should take his candidacy seriously by pressing him on the details of his policy pronouncements, and helping the public understand the differences between the public and private sector. The sooner the media begins evaluating The Donald on the details of his policies and his governing expertise, rather than on his deliberately provocative comments designed to mobilize a disaffected public, the sooner The Donald’s political bubble is likely to burst. Alas, I have little confidence that most journalists, in this era of dwindling audiences and shrinking profit margins, will be able to resist taking the easy road by dismissing The Donald as a serious candidate.  To date, it is a media strategy that has The Donald laughing all the way to the top of polls.

Bernie Sanders: Live By the Gun, Die By the Gun?

In an email, former Vermont Governor Jim Douglas provides further context to Senator Bernie Sanders’ ambivalent record on gun control that I discussed in my last post and which has prompted the ire of some liberals in the Democratic Party. In 1990 Sanders challenged incumbent Republican Representative Peter Smith for Vermont’s lone congressional seat. This was a rematch of the 1988 contest in which Smith defeated Sanders, who was running as an independent, by about 4%. In 1990, however, Smith came out in favor of a ban on assault weapons, despite signing a pledge two years earlier to oppose gun control legislation. The NRA – no friend of Bernie’s – nonetheless spent $18,000 on advertising to defeat Smith. (This is what the video I showed in my last post is referring to when it cites the NRA contribution to defeat Sanders’ opponent.) Douglas recalls seeing signs while marching with Smith during parades that year saying, “Smith and Wesson YES, Smith in Congress NO!” While the assault ban wasn’t the only factor leading to Smith’s defeat, it likely left a lasting impression on Sanders who still remains somewhat defensive on this issue. Here is Bernie in an interview with CNN’s Jake Tapper, defending his position on gun control by making specific references to his constituents’ views on gun ownership while explaining his vote not to hold gun manufacturers liable for gun-related deaths.

As I noted in my previous post, Sanders’ ambivalence is not sitting well with many liberals.  And while it certainly does not represent a shift in presidential politics (contrary to this Washington Post article), Hillary Clinton has been sure to include a reference to strengthening gun control laws in her stump speech, albeit without mentioning Bernie by name. Still, as I suggested in this US News post, Bernie has much bigger hurdles to clear than liberal opposition to his ambivalent stance regarding guns. This just-released WashingtonPost/ABC national survey of adults reaffirms what I wrote previously: Bernie’s support is lagging compared to Clinton’s among non-white Democrats, those without college degrees, and moderate and conservative members of his party. In past nominating contests these groups constituted about a third of the Democratic electorate. To be sure, a significant number of respondents – 45% – still have no opinion of Sanders, so there’s room for him to change those numbers in the days ahead, whereas opinions of Clinton are at this point unlikely to vary much. Nonetheless, much as it pains Sanders’ supporters to hear (which is why some of them have critiqued my previous posts on this topic!) Bernie is facing very long odds in his bid to secure the Democratic nomination.

I briefly discussed some of these issues in an interview with our local CBS television affiliate WCAX, which aired last night. In it I talked about some of the similarities and differences between the Dean and Sanders’ presidential campaigns.  One point I made, which didn’t make it into the clip, is that whereas Dean chose to rebrand himself as a liberal in 2004 – he actually had a relatively moderate record as Governor of Vermont – Sanders will have no such makeover problem since he’s campaigning on issues, such as reducing income inequality, that he’s advocated throughout his political career.  But authenticity will carry you only so far – Sanders needs to put together the campaign infrastructure to translate polling support into votes, particularly in the early campaign labor-intensive states of Iowa and New Hampshire.  CBS reporter Alex Apple, who did the interview with me, also talked with a former Dean staffer who recalled that the Dean campaign knocked on a lot doors in Iowa in 2004, but despite earlier polls indicating he was leading in the state, they had trouble turning out supporters on caucus day.  At this point I can’t tell what kind of ground game Bernie is putting into place in Iowa, but if I recall correctly one of the problems the Dean campaign struggled with is that Iowans were not all that impressed with the swarm of college students and other “Deaniacs” who came tromping through the cornfields to solicit their vote.

(I want to give special thanks to Alex and cameraman Tyson Foster who were kind enough to interview me on my back deck “office”. I can tell you that you won’t find any other political analyst handicapping the presidential contest on television while wearing shorts! It’s hard work being a political scientist, but someone has to do it.)

Bernie Sanders: Gun Nut – Or Politician?

Is Bernie Sanders a “gun nut”?

As the Vermont Senator’s political stock gains ground, buoyed by rising polling support in both Iowa and New Hampshire, journalists and pundits are beginning to look more closely at his record on the issues. For many progressives, perhaps the most disturbing aspect of this element of Sanders’ candidacy is what they view as his lukewarm record on gun control. Echoing the sentiment of many progressive, the Slate’s Mark Steyn recently blasted Bernie on this issue in a blistering online critique: “[B]efore liberal Democrats flock to Sanders, they should remember that the Vermont senator stands firmly to Clinton’s right on one issue of overwhelming importance to the Democratic base: gun control. During his time in Congress, Sanders opposed several moderate gun control bills. He also supported the most odious NRA–backed law in recent memory—one that may block Sandy Hook families from winning a lawsuit against the manufacturer of the gun used to massacre their children.” As Steyn points out, in 1993 then-Representative Sanders opposed the Brady bill which proposed federal background checks for gun purchasers and restrictions on felons’ ability to own guns. Bernie’s voting record on gun control has also come under attack by groups backing Bernie’s Democratic rivals, including this attack ad aired by the pro-Martin O’Malley Super Pac Generation Forward:

But Bernie’s defenders point out that in recent years he has taken a stronger stance on gun control, including voting for expanded background checks on gun buyers and for a ban on assault weapon in the aftermath of the Newtown school shooting.  The truth, however, as this Politifact story makes clear, is that while Bernie may not be the NRA’s poster child for the Second Amendment rights, neither has he been in the vanguard of gun control.  And while progressives find this troubling, conservative pundits – while no fan of Bernie’s – are finding progressive discomfiture on this issue more than a little amusing.

Taken as a whole, Bernie’s record on this issue is, as Steyn suggests, more conservative than that of his main Democratic presidential candidates with the exception of former Virginia Senator James Webb. Why would a candidate who is staking his campaign on progressive reform be so soft on gun control? The simplest explanation, as my Middlebury colleague Bert Johnson argues, is that, like it or not, Bernie is representing the preferences of a good number of his Vermont constituents. As Johnson notes in his comments to Politifact in its review of Bernie’s record on guns, “As a rural state with a large number of hunters and other gun owners, Vermont has been less liberal on guns than on most other issues, historically…[Sanders] seems to support more regulation of guns than the U.S. presently has, but he recognizes his constituents’ preferences so does not make gun control a priority.”

For the Prius-driving, urban-dwelling, tree-hugging, Chablis-drinking secular humanists among you, it might be difficult to fathom why a former Socialist mayor of Burlington representing possibly the most liberal state in nation could care very much about the political preferences of a group of knuckle-dragging goose-stepping paramilitary neo-Nazi gun owners. But the reality is that those who own guns in Vermont, while predominantly conservative in outlook, are nonetheless a somewhat diverse and, perhaps more importantly, rather substantial group of voters. In 2014, as part of her senior honors thesis, Middlebury College student Brianna Morse surveyed a representative sample of Vermonters to see how many owned guns, and why. Morse found that a substantial number – about 42% – of Vermont adults indicated they owned guns, a total consistent with what other sources have shown. Needless to say, this is a potentially sizable voting bloc.  It is true that gun ownership in Vermont is positively correlated with a more conservative political ideology; Morse found that for every unit increase on a seven-point ideological self-placement scale (from extremely liberal to extremely conservative), the odds of gun ownership increase by 1.2, controlling for education, ideology and income. (Ideology did not seem to affect the number or types of gun owned, however.) Gender also influenced gun ownership, with males five times more likely than females to own a gun, again controlling for socioeconomic status. Interestingly, in contrast to the prevailing media stereotype, higher levels of education also had a statistically significant and positive relationship with gun ownership; Morse found that for every increase in the level of education the odds of a respondent owning a gun increase slightly as well (although more educated individuals were less likely to own multiple guns.) Neither income nor age seemed related to gun ownership, however.

When asked their motivations for owning a gun, respondents gave multiple reasons, but the most popular answer was for hunting. While liberal gun owners were most likely to cite target practice or skeet shooting as a reason for owning a gun, 42% of conservatives cited hunting most frequently, followed by 25% of conservatives citing their Second Amendment rights as the second most popular response. (Morse speculates that liberals are more squeamish than conservatives in shooting living creatures.) This compares to only 6% of liberals and 13% of moderates who listed the Second Amendment as a motivation for owning a gun. (Morse’s survey allowed respondents to cite more than one motivation for gun ownership.) In looking at these descriptive statistics, Morse suggests that, “Conservatives place a higher importance upon the acknowledgement of their rights as a citizen in the decision to own a gun than liberals or moderates… .” But she cautions that because of multiple responses combined with low response numbers for some categories, it is difficult to attribute a primary motivation for gun ownership among Vermonters with any degree of statistical confidence.

Viewed from the perspective of constituent preferences, Bernie’s ambivalence toward stricter gun control legislation is politically pragmatic, even if it seems to clash with his more progressive ideological outlook on other issues. But how will this play at the national level among Democrats? It is doubtful that Clinton or other Democrats are going to make this much of an issue, at least in the early going. The percentage of gun owners in Iowa, at about 42% of voting-age adults, rivals that of Vermont, and New Hampshire’s proportion, while lower at about 30%, is still substantial. Yes, these aren’t necessarily predominantly Democratic voters, but why take a chance on alienating a politically active group of voters? Nationally, support for more stringent gun control has been lukewarm at best, except for brief fluctuations in the aftermath of highly publicized shootings such as Newtown, and it ranks quite low among the issues that concern most Americans. If Bernie is going to lose this race for the Democratic nomination, it is highly doubtful that his stance on guns will be the issue that takes him down.  Most progressives, I suspect, will be willing to look past what they will likely view as an anomaly in Sanders’ record.

Bernie Sanders. He’s not a gun nut. He’s a politician.

The Least Dangerous Branch? The Court and Same-Sex Marriage

The Supreme Court’s historic decision yesterday in Obergefell v. Hodges to legalize same-sex marriage in all 50 states illustrates a point my students have heard me make for many years: the Court is a fundamentally political institution, one whose members are deeply concerned about maintaining its independence and legitimacy.  The result, as the Obergefell decision reminds us, is that the Court will rarely allow itself to get out in front, or fall very much behind, prevailing public opinion.

We can see this quite clearly by tracking the Court’s decision in a series of cases regarding gay rights, from Bowers v. Hardwick  through the Romer, Lawrence and Windsor cases and culminating in the decision announced yesterday in Obergefell v. Hodges. Viewed chronologically, the cases trace a steady progression in the evolution of Court doctrine, from upholding a Georgia law in 1986 criminalizing sodomy to yesterday’s landmark ruling that the Fourteenth Amendment’s due process and equal protection clauses requires a State to license a marriage between two people of the same sex.

In this regard, many observers likened yesterday’s decision to the Court’s 1954 ruling in Brown v. Board that outlawed segregated public school systems. But the reality is that, as Gerald Rosenberg persuasively argues, the Brown decision did little by itself to move public school desegregation forward. More generally, Rosenberg argues, in the absence of broad-based political support and legislative action by Congress, the Court is a poor vehicle for enacting social change. And, in fact, the evidence suggests that it wasn’t until passage by Congress of the 1964 Civil Rights and the 1965 Voting Rights acts that the barriers to racial discrimination began to fall.

Indeed, more often than not we have seen instances of the Court acting on behalf of temporary majorities, often during wartime, to curtail civil rights and liberties of minority groups, rather than protecting them.  More generally, as Robert Dahl first posited in his famous 1957 article, as a political actor the Court’s rulings tend to owe more to prevailing political opinion than to careful legal reasoning based on the Constitution and statute.

Why is the Court so responsive to majority public opinion? Dahl posited an indirect relationship, in which presidents and members of the Senate who are elected by – and thus are responsive to – public opinion choose judges who share their political preferences. Through this means the Court tends to be composed of justices whose views are not likely to be too far out of step with the mainstream. Other scholars have argued that the relationship is more direct, with individual justices actually responding directly to public opinion.  Whatever the mechanism and motivation, however, this line of reasoning suggests that the evolution of Court doctrine regarding gay marriage is not an instance of the Court bucking majority opinion to protect the rights of a minority class, but in fact is characteristic of how the Court’s legal interpretations respond to evolving social norms more generally. In this respect, Chief Justice Roberts is right – yesterday’s decision was not about the Constitution, at least not directly. As Dahl writes, “[T]he court cannot act strictly as a legal institution. It must… choose among controversial alternatives of public policy by appealing to at least some criteria on questions of fact and value that cannot be found in or deduced from precedent, statute and the Constitution.” And so it seems to be with the Court’s evolving rulings regarding gay rights – an evolution that seems driven not by legal precedent or doctrine so much as by changing public mores.

My interpretation may prove troubling to those who believe the Court’s function in the Madisonian system of shared powers is not to be a democratic institution, but instead is to check the excesses of legislative majorities. On the other hand, it may comfort those (like Chief Justice Roberts!) who complain that the Court is too willing to issue rulings on controversial matters that are better left to the people to resolve, working through their elected representatives. My response is that in most instances, the Court interjects itself into debates only when it is reasonably persuaded that public opinion has begun to crystallize. When it comes to gay marriage, the reality is that there has been a sea change in attitudes since Congress passed the Defense of Marriage Act in 1996, so that by the time the Court issued its ruling yesterday, it was increasingly hard to argue, as the four justices in the minority in yesterday’s decision would have us believe, that the Court decision short-circuited an ongoing debate.  Instead, as Scalia foresaw back in 2003 in his dissent in the Lawrence case, the Court’s ruling then striking down the Texas anti-sodomy law practically guaranteed that it would find a constitutional basis for same-sex marriage sooner or later. But it would be another decade before the Court, finally persuaded regarding the direction of public opinion, chose to take that historic step.  It did so in concert with evolving public opinion on the matter, as reflected in this Pew chart.

It indicates a dramatic growth across all generations during the last decade in support for same-sex marriage. Indeed, 37 states and the District of Columbia had already ratified same sex marriage prior to yesterday’s ruling.  If the Court hoped to get on the train of public opinion before it left the station, yesterday’s ruling was almost inevitable.

As is often the case, then, the Court’s intervention into a political debate did not likely change the outcome so much as provide constitutional cover for a result toward which the national conversation was already headed. In so doing, it insured that the Court would remain a relevant political player, but not in a way that jeopardized its legitimacy to articulate bedrock values. To be sure, providing a legal foundation to justify and explain a political outcome is not an insignificant role – by providing a constitutional imprimatur, it puts popular sentiment on a more enduring basis. But a process that ratifies a democratic outcome, rather than determines it, is also less controversial, and perhaps more reassuring, to those who worry about the Court’s anti-democratic tendencies. In instances in which it lacks strong popular support, conversely, the Court is not likely to move social policy on its own. While not the sign of “the least dangerous branch”, it does suggest it is not nearly as threatening as its harshest critics contend in the aftermath of yesterday’s decision. In this respect, I think Dahl had it correct when he concluded his study of the Court by writing, “[I]t is doubtful that the fundamental conditions of liberty in this country have been altered by more than a hair’s breadth as a result of these [Court] decisions. However, let us give the Court its due: it is little enough.” So it is.