Abstract
In the last decade or so, social scientists of a variety of different intellectual orientations have renewed their interest in the concept “institutional legitimacy.” In part, this reflects concerns over the efficacy of institutions, and in particular the assumption that all institutions require a healthy dose of voluntary compliance in order to be effective. The U.S. Supreme Court is more dependent than most political institutions on the normative support of its constituents; without a “reservoir of goodwill” to protect it, the Court as an institution is quite vulnerable to the dissatisfactions and disappointments of both elites and the mass public.
This chapter provides an overview of Legitimacy Theory as applied to the U.S. Supreme Court, with particular attention to the attitudes of the American mass public. I focus on two contemporary research questions: (1) the sources of legitimacy among the American mass public, and especially the degree to which policy disagreement undermines institutional support, and (2) the ways in which legitimacy is sustained by exposure to the symbols of judicial authority. Taking advantage of both extant and newly available data, I present evidence that diffuse and specific supports are not inordinately connected, and then provide an information-processing theory that explains how judicial symbols protect institutional legitimacy. I conclude by noting that research on Legitimacy Theory has recently acquired a new vigor, making it likely that important theoretical and empirical advances will be forthcoming.
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Notes
- 1.
- 2.
Tyler (2006, p. 375) provides a useful definition of legitimacy: “Legitimacy is a psychological property of an authority, institution, or social arrangement that leads those connected to it to believe that it is appropriate, proper, and just. Because of legitimacy, people feel that they ought to defer to decisions and rules, following them voluntarily out of obligation rather than out of fear of punishment or anticipation of reward. Being legitimate is important to the success of authorities, institutions, and institutional arrangements since it is difficult to exert influence over others based solely upon the possession and use of power. Being able to gain voluntary acquiescence from most people, most of the time, due to their sense of obligation increases effectiveness during periods of scarcity, crisis, and conflict.”
- 3.
I use the term “concerned” to indicate renewed interested in the topic, without expressing any normative view on whether it is desirable for the Court to possess large stores of institutional legitimacy. Empirical research on judicial legitimacy need not make any normative judgment about whether legitimacy is desirable or undesirable. From the perspectives of some, having a weak Court may be beneficial. My research is agnostic on this issue. For some thoughts on whether the U.S. Supreme Court can have too much legitimacy, see Gibson and Nelson (2015a).
- 4.
National Federation of Independent Business v. Sebelius, 132S. Ct. 2566 (2012).
- 5.
Crawford (2012) reports that Chief Justice Roberts acted strategically to protect the Court’s legitimacy during the opinion-writing process for National Federation of Independent Business v. Sebelius, changing his vote from one to strike down the Affordable Care Act to one that preserved the constitutionality of the legislation.
- 6.
Pildes (2010, p. 157) declares “Citizens United is the most countermajoritarian decision invalidating national legislation on an issue of high public salience in the last quarter century.”
- 7.
To list just a few such reports: see Gibson and Caldeira (1992), on change in the attitudes of African Americans toward the U.S. Supreme Court; Gibson and Caldeira (2009), on change in support for the Supreme Court that resulted from the controversy over the Alito nomination; Gibson (2012), on change in support for the Kentucky Supreme Court over the course of an election; and Gibson, Gottfried, Delli Carpini, and Jamieson (2011), on similar electoral-cycle change in support for the Pennsylvania Supreme Court.
- 8.
In their analysis of the legitimacy of high courts worldwide, Gibson, Caldeira, and Baird (1998) report an average correlation of diffuse and specific supports of .33.
- 9.
For a direct challenge to many of the conclusions of Bartels and Johnston, see Gibson and Nelson (2015b).
- 10.
Christenson and Glick test this hypothesis with a decidedly unrepresentative nonprobability sample of opt-in respondents—a Mechanical Turk sample. This sample’s attributes differ markedly from those of probability-based samples (e.g., Table A1, p. 28), with about one-half of the opt-in sample reporting having a college degree (a characteristic not even true, of course, of college sophomores), and with those having some college adding another 37 % to the sample. Moreover, unlike many internet surveys, the authors included in their solicitation of participation in the survey a description of its content (a “survey about politics and health care” – p. 27), a practice further creating selection bias and unrepresentativeness. Finally, the authors were extremely lenient in how they used the results of three screener tests (e.g., Berinsky, Margolis, & Sances, 2014), allowing respondents who failed two of the three screening questions into their sample (p. 27). The consequence of this latter decision is of course to boost the power of their sample while simultaneously introducing measurement error associated with the respondents who did not pay attention to the questions asked.
- 11.
My analysis of the Bartels and Johnston experiment (see below) is relevant to this assumption. In particular, I find that ideology played a confused role in structuring reactions to the experimental stimulus (the decision), in part because the policy did not map (in the minds of the respondents) neatly onto the ideological continuum. Policy disagreement performed much better in their experiment than did ideological disagreement. It is important not to assume that policy preferences and ideology are the same thing (as decades of research on public opinion has shown).
- 12.
This hypothesis is similar to that of Gibson and Caldeira (2009), with the difference being that the exogenous event for Gibson and Caldeira is the politicization of the Court via the campaigns for and against the confirmation of Samuel Alito to a seat on the Court.
- 13.
Some of their empirical findings run contrary to their expectations, requiring post-hoc explanations that are not entirely persuasive (e.g., the Roberts strategic treatment actually increased support for the Court—Christenson and Glick, p. 16). In light of having practically no external validity, and with internal validity that is to some degree compromised by the study’s research design (as they acknowledge, theirs is not a true experimental research design), the question of the impact of the ruling on this case must be considered to be unanswered by their analysis.
- 14.
The criteria by which this issue was selected are not clear. Based on an analysis by Gibson et al. (2014) of similar issues, it seems that the policy on which Bartels and Johnston focused is not unusually salient to more than one-half of the American people.
- 15.
There data are from a “national probability sample” fielded by Knowledge Networks. No response rate or other details are presented about the survey. The data set is available at the supplemental materials site of the American Journal of Political Science.
- 16.
The absence of “don’t know/uncertain” responses to this policy question is highly unusual. Typically, representative samples of the American people include large proportions of respondents unable to form a preference on any given issue of public policy. That is not so in their data set.
- 17.
Six respondents have a diffuse support score but no preference on the policy issue (only a total of 12 respondents had no opinion on the issue, which seems very small for a nationally representative sample). These respondents had a mean support score of .53. Compared to them, winners and losers both have higher institutional support scores.
- 18.
Bush v. Gore can be considered to be an “acid test” because of (1) the political significance of the decision, (2) the deep divisions of the justices, (3) divisions paralleling ideology and partisanship, (4) the unprecedented expansion of the U.S. Supreme Court involvement in the administration of elections in the states, and (5) Sandra Day O’Connor’s apparent prejudgment of the case at a cocktail party prior to the Court issuing its decision. See Gibson et al. (2003b).
- 19.
The American Panel Survey (TAPS) is modeled on the KN KnowledgePanel. The survey is a monthly online survey of about 2,000 people. Panelists were first recruited as a national probability sample with an address-based sampling frame in the fall of 2011 by Knowledge Networks for the Weidenbaum Center at Washington University. Two replenishment efforts have kept the panel at approximately 2,000 panelists. Individuals without internet access were provided a laptop and internet service at the expense of the Weidenbaum Center. In a typical month, more than 1,700 of the panelists complete the online survey. More technical information about the survey is available at taps.wustl.edu. Panel respondents are regularly asked to complete surveys over the internet. Like the KnowledgePanel, the compound response rate for any given survey is low (typically in the single digits). Moreover, as part of an on-going series of surveys, the respondents become experienced if not semi-professional questionnaire takers.
- 20.
Care must be taken with the TAPS data, as with all data sets relying on semi-professional respondents who (a) agree to be questioned repeatedly over months and years, and (b) learn from their experience how to engage in satisficing behavior when answering surveys. One of the consequences of this is that semi-professional respondents learn that there are no consequences of answering questions with a “don’t know” reply, or even not answering questions at all. As Table 5.3 depicts, a fairly sizable portion of the respondents either had no attitudes toward the Supreme Court or were unwilling to put in the cognitive effort to match their attitudes to the questions asked. RDD samples typically report considerably fewer “don’t know” responses, although some believe that this is a function of social desirability pressures that mitigate against admitting ignorance to a live interviewer. Still, in the case of panel analysis such as that presented here, there is no reason to believe that satisficing behavior is any more prevalent within one wave of the survey versus another.
- 21.
For reasons that are not at all clear, there are some slight (and minor) changes in the question wording of the items across the surveys. I doubt that differences are sufficient to affect the responses, but, of course, have no evidence for that view.
- 22.
Thus, there is more change in this data set than in the Christenson and Glick M-Turk data set inasmuch as their mean change score is very close to 0.
- 23.
I have created an index of change in support that is simply the difference in summated indices calculated at t 2 and t 1. Within each time period, the six-item sets of items are quite reliable: at t 1, Cronbach’s alpha = .88; mean interitem correlation = .55; at t 2, alpha = .90; mean interitem correlation = .61. Common Factor Analyses of each set strongly confirm the unidimensionality of the measures (with trivial eigenvalues for the second extracted factor). Strong loadings are observed for all of the items. At t 1, the correlation of the factor score from the CFA and a simple summated index is .995; at t 2, it is .994. The correlation of the factor scores across interviews is .70; the correlation of the indices is also .70. Consequently, it really makes no difference which measure of Court support is used for my analyses; by selecting the summated indices, the natural metric of the measures is maintained, and no confounding influence of different factor loadings (and hence factor score coefficients) at t 1 and t 2 is possible.
- 24.
A follow-up question was asked of the opponents of the law that allows differentiation of those who opposed the law because it went too far and those opposed it because it did not go far enough. The latter group is small (n = 24), but their support for the Court actually declined more than those who opposed the law because it went too far. Given this unexpected pattern in these data, I have ignored the responses to this question in my analysis.
- 25.
I concede that some respondents probably learned about the decision, updated their views of the Court, but then forgot that they had learned about the decision. No data are available to estimate the size of this group; given the salience of the health care debate, it seems unlikely that the group is very numerous.
- 26.
Of course, the respondents could simply have searched the internet for the answers to the TAPS questions while they were completing the interview. Internet surveys invariably overestimate true levels of political knowledge.
- 27.
Those who say they do not know whether the Court ruled and those who say they “don’t know” whether they know have the same average change score. Thus, I have collapsed these two categories of respondents, creating a simple dichotomy of whether the respondent knew or did not know that the Supreme Court had ruled in the matter.
- 28.
Simon and Scurich (2011) report some interesting findings relevant to the difference between those who are disappointed in a decision of the Court and those who are not (i.e., winners and losers). Their focus is on judicial reasoning, a process variable. They conclude (2011, p. 719): “Participants were indifferent toward the modes of reasoning when they agreed with the outcome of the judges’ decision, but were differentially sensitive to the judicial reasoning when the judge’s decision frustrated their outcome.” This finding seems compatible with my claim that legitimacy is for losers.
- 29.
Confusion always exists about how Positivity Theory and the ubiquitous negativity bias are related. Negativity bias—the tendency to give negative stimuli greater psychological weight than positive stimuli—is a general phenomenon that many see as the product of evolutionary psychology (but see Norris, Larsen, Crawford, & Cacioppo, 2011). A bias toward negativity seems commonplace, even if negativity, obviously, does not always trump positivity (i.e., mixed stimuli can still be judged positively). Moreover, some basic “positivity theory” exists. “According to Zajonc’s (1968) mere exposure effect, familiarity (or ‘perceptual fluency’) with a stimulus, induced by mere exposure to it, leads to warmer feelings toward it… Kunst-Wilson and Zajonc found that exposure delivered via subliminal presentation also increased liking for a variety of novel objects, concluding that ‘individuals can apparently develop preferences for objects in the absence of conscious recognition and with access to information so scanty that they cannot ascertain whether anything at all was shown’ (1980, 558). Zajonc (2001) suggests such an effect may occur because increases in familiarity, in the absence of negative information, signal something about the benign, safe nature of the stimulus” (Kam and Zechmeister, 2013, 973).
Positivity Theory, on the other hand, is a theory about the context within which ordinary people encounter Supreme Court rulings, and therefore does not necessarily stand in opposition to negativity bias. The empirical underpinning of Positivity Theory is the well-established relationship between attentiveness to the Court and willingness to extend legitimacy to the institution. The theory explains this relationship by suggesting that exposure to the institution is simultaneously accompanied by exposure to the symbols of judicial authority. When people pay attention to the Court, they typically see judges in robes, working in temple-like buildings, surrounded by symbols of deference and respect (e.g., honorific titles, depictions of Lady Justice). When people pay attention to the Court, they often are disappointed in the decisions the justices make, but that disappointment is cushioned by legitimizing symbols attached to the context of the decision. The theory acknowledges that the positivity of symbols does not necessarily trump the negativity of losing on legal policy—with high-stakes’ cases like abortion perhaps being a primary example. But the theory suggests that episodes of attention to the Court are associated with both evaluations of the decisions the Court makes and the institutional context of those decisions. Finally, Positivity Theory holds that the Court’s decision in Bush v. Gore is a perfect exemplar of the process, especially since the losers in the litigation—Democrats and African Americans in particular—did not withdraw support from the Court as an institution (e.g., Gibson et al., 2003b; Price & Romantan, 2004).
- 30.
The literature on framing is voluminous—for a useful review see Chong and Druckman (2007).
- 31.
- 32.
The process I describe here has much in common with “sober second thought” models of deliberation. For instance, Gibson (1998) posits that decisions about whether to tolerate political activities by one’s enemy are influenced by an initial “gut” reaction that is sometime tempered by further deliberation about democracy and freedom, in a two-step process.
- 33.
For an early analysis of the influence of symbols in law and politics see Posner (1998). Posner posits that “Symbols dominate American politics and permeate the law, but they are poorly understood” (p. 765) and then adopts a game theoretic approach in an effort to understand the influence of symbols. However, his research does not consider individual differences in reactions to the symbols of law and politics, and he offers no microlevel theory in his analysis.
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Cases
Bush v. Gore, 531 U.S. 98 (2000).
Citizens United v. Federal Election Commission, 55 U.S. 310 (2010).
Kelo v. City of New London, 545 U.S. 469 (2005).
National Federation of Independent Business v. Sebelius, 132S. Ct. 2566 (2012).
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Gibson, J.L. (2015). Legitimacy Is for Losers: The Interconnections of Institutional Legitimacy, Performance Evaluations, and the Symbols of Judicial Authority. In: Bornstein, B., Tomkins, A. (eds) Motivating Cooperation and Compliance with Authority. Nebraska Symposium on Motivation, vol 62. Springer, Cham. https://doi.org/10.1007/978-3-319-16151-8_5
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