No “invisible hand” exists to transform American public opinion automatically into public policy. Rather, public attitudes on the issues of the day become policy only if public officials’ decisions reflect popular preferences. For the U.S. Supreme Court, this linkage is especially problematic. Justices are nominated by presidents and confirmed by the Senate without ever running in elections. Once on the Court the justices enjoy life terms (during “good behavior”), and in recent years none has ever sought another elective post or been seriously threatened with impeachment. Neither the Supreme Court’s hearings nor its conferences are televised; the justices seldom grant interviews on recent decisions; and most justices are little known to average Americans. No evidence exists that the justices seek out or commission public opinion polls.

It is true that some areas of law, such as the “cruel and unusual punishment” clause, reflect the notion that Supreme Court decisions should reflect contemporary or changing public opinion. A few justices, such as John Paul Stevens and Stephen Breyer, appear especially open to public opinion polls or to trends in international public opinion, for instance, in Roper v. Simmons 2005. Yet many popular judicial theories deemphasize or even disregard current public opinion—among them historic mainstays of constitutional law such as “original intent” or the “preferred position” view of the Bill of Rights. Some justices, such as Antonin Scalia or William Rehnquist, openly call upon the Court to disregard public opinion, as they did in Planned Parenthood of Southeastern Pennsylvania v. Casey in 1992 and Stanford v. Kentucky in 1989. Others, such as Anthony Kennedy, are exceedingly skeptical of many public opinion polls introduced in lawsuits, as in Ramdass v. Angelone (2000).

Justice Sandra Day O’Connor occupied a unique place in American public opinion. As the first woman justice she symbolically represented American women. For many Americans she was the face of an otherwise anonymous Court. As a former elected official, she was (and remains) the only recent justice who ever faced the voters directly as a candidate and won an election. A 1989 Washington Post survey ranked her as the Court’s best-known justice, and a 2005 Quinnipiac University poll ranked her as second best-known (behind Clarence Thomas). She was certainly the Court’s most popular justice, ranking as most admired in 2003 and 2004 Opinion Dynamics polls, and as best liked in the Quinnipiac poll. Her judicial preference for balancing tests and her dislike of judicial “bright lines” put her in the judicial middle rather than at the extremes, and she often cast the tie-breaking vote when the Supreme Court was closely divided.

Perhaps it should not be surprising, then, that Sandra Day O’Connor was among the top justices whose on-the-Court votes reflected poll majorities. Her agreement with American attitudes spanned a wide variety of cases and ranged across her years on the Court. Yet if she was especially likely to agree with poll majorities, a second image should clearly be discarded. Justice O’Connor’s votes represented equally the attitudes of American men and American women.

Thomas R. Marshall is a professor of political science at the University of Texas at Arlington.

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