The Mischief of Polls in Relation to the Federal Judiciary
By Marion Edwyn Harrison (08/30/07)
The history of polls and polling is beset with examples of varying degrees of error. Undoubtedly the most dramatic was that of the Literary Digest, when, in 1936, purporting to have surveyed some 2.3 million voters, it predicted the election of Kansas Governor Alfred M. Landon over President Franklin Delano Roosevelt. The Literary Digest folded. However, the Gallup Poll predicted the FDR victory. Before long a polling industry was off and running, notwithstanding two major 1948 bloopers: Gallup and Roper’s predictions of a Governor Thomas E. Dewey landslide over President Harry S. Truman.
In any kind of polling involving a large group polled there are risks. Polls usually admit to a 3% or so possibility of error. They seldom account for individuals who refuse to respond, who deliberately respond misleadingly, who may be confused by wording of a question, who may be tricked into an answer by wording of a question (as lawyers term “leading questions,” impermissible on direct examination in court). Much also depends upon the composition of the group polled - e.g., in an age of cellulars, how about people who talk only by cellular and not by land-line?
Whatever the nature and prevalence of the foregoing kinds of risk of error, nowadays we see more and more polls purporting to record the attitudes and reactions of the public toward causes and issues. It’s not merely for whom would one vote but what is one’s attitude or reaction to something?
In this type of polling, sometimes claimed to be “surveying” or some other fancy word, too often the “public,” whoever may constitute the public, is devoid or virtually devoid of factual knowledge of the subject matter about which it is polled.
Not surprisingly, pollsters seldom identify the group from which they solicit polling questions, much less reveal any hint about the factual knowledge of anybody in the group.
An example is polling about the Federal Judiciary. A poll in point is the latest Washington Post - ABC News Poll, of which THE WASHINGTON POST, one of the nation’s most prestigious and more liberal newspapers, is a sponsor. That poll claims that “About half of the public” (meaning, of course, about half of those unidentified people polled) thinks the Supreme Court generally is balanced in its decisions but a growing percentage, said to be up to 31%, thinks the Court’s decisions upon the average are “too conservative.”
How does a layman, uneducated in law, define “conservative” as applied to Federal judicial appellate decisions? In fact, there is no such legal concept. The word, whether used as adjective or noun, essentially is a media and lobbying creature. Lawyers and judges think in terms of stare decisis (literally, “to stand by things decided”), strict construction (reading a statute, regulation or precedent as narrowly as reasonable), plain meaning (reading such a document without external references when it facially is unambiguous), legislative history. Somewhat informally, “originalism” or original intent, and similar concepts and/or rules of interpretation, often are in play.
Perhaps more revealing is the lack of applicable factual knowledge of individuals responding to so many polls. As to a poll evaluating the Supreme Court how many respondents to the poll can name a handful of decisions relating to a question the pollster asks or to any question? To the extent they can name a few, how many can summarize the rationale of the holding as distinguished from the holding? How many can name the last three Chief Justices or any of them? How many can name two or three of the eight incumbent Associate Justices?
Some polling questions require little knowledge inasmuch as they solicit only opinions or reactions. For example, does the individual questioned feel he or she financially is better off today than, say, twenty years ago? Or feels in better health? Or generally is more content? Or is voting for A over B? For some purposes, ranging from political decisions through curiosity to evaluation of a group, answers to those kinds of questions may be of some validity.
Answers by the uninformed to conclusory, and often meaninglessly stated, questions about the scope of Supreme Court decisions hardly merit serious objective evaluation. Of course, when some leftwing outfit, the Alliance for Justice or otherwise, wants to attempt to drum up opposition to Federal judicial nominees and to criticize sitting Federal judges these polls have their use, jaundiced though that use obviously is.
In sum, polls, surveys, whatever they may called, which purport to reveal people’s views on generalized subjects, too often are useless except to some advocacy group which seeks to convince the public that the Supreme Court is too “conservative” or whatever the undefined issue may be. Sometimes, even worse, they are just plain deceptive. Thus, much is to be said for evaluating the motivation of the pollster and of those who broadcast its results before accepting the merits of the poll.
Marion Edwyn Harrison is President of, and Counsel to, the Free Congress Foundation.
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