Gibson, Caldeira, and Spence (2003a, 2003b, 2005) expound the theory of positivity bias in their analysis of the legitimacy of the U.S. Supreme Court in the aftermath of Bush v. Gore. This theory ...asserts that preexisting institutional loyalty shapes perceptions of and judgments about court decisions and events. In this article, we use the theory of positivity bias to investigate the preferences of Americans regarding the confirmation of Judge Samuel Alito as an associate justice of the Supreme Court. More specifically, from the theory of positivity bias, we derive the hypothesis that preferences on the Alito confirmation are shaped by anterior commitments to the Supreme Court. Based on an analysis of a national panel survey, we find that those who have a high level of loyalty toward the Supreme Court rely much more heavily on what we term judiciousness-in contrast to ideology, policy, and partisanship-in forming their opinions on whether to confirm Alito. Thus, institutional loyalty provides a decisive frame through which Americans view the activity of their Supreme Court.
It is conventional in research on the legitimacy of the U.S. Supreme Court to rely on a survey question asking about confidence in the leaders of the Court to indicate something about the esteem with ...which that institution is regarded by the American people. The purpose of this article is to investigate the validity of this measure. Based on a nationally representative survey conducted in 2001, we compare confidence with several different measures of Court legitimacy. Our findings indicate that the confidence replies seem to reflect both short-term and long-term judgments about the Court, with the greater influence coming from satisfaction with how the Court is performing at the moment. We suggest a new set of indicators for measuring the legitimacy of the Court and offer some evidence on the structure of the variance in these items.
The conventional wisdom about the US Supreme Court and the 2000 presidential election is that the Court wounded itself by participating in such a partisan dispute. By ‘wounded’ people mean that the ...institution lost some of its legitimacy. Evidence from our survey, conducted in early 2001, suggests little if any diminution of the Court’s legitimacy in the aftermath of Bush v. Gore, even among African Americans. We observe a relationship between evaluations of the opinion and institutional legitimacy, but the bulk of the causality seems to flow from loyalty to evaluations of the case, not vice versa. We argue that legitimacy frames perceptions of the Court opinion. Furthermore, increased awareness of the activities of the Court tends to reinforce legitimacy by exposing people to the powerful symbols of law. In 2000, legitimacy did indeed seem to provide a reservoir of good will that allowed the Court to weather the storm created by its involvement in Florida’s presidential election.
The orthodox answer to the question posed in the title of this article is that the legitimacy of institutions has something to do with acquiescence to unwelcome public policy decisions. We ...investigate that conventional wisdom using an experiment embedded within a representative national sample in the United States. We test hypotheses concerning not only the effect of institutional legitimacy on acquiescence, but also the influence of partisanship, the rule of law, and simple instrumentalism on willingness to accept an objectionable policy decision. Our analyses reveal that legitimacy does matter for acquiescence, and that the Supreme Court is more effective at converting its legitimacy into acceptance than is Congress. Yet, many important puzzles emerge from the data (e.g., partisanship is not influential), so we conclude that Legitimacy Theory still requires much additional empirical inquiry.
The question of how courts in newly emerging democracies are able to act in a “counter-majoritarian” fashion is of burning theoretical and practical importance. Consequently, we investigate the ...relationship between the legitimacy of the South African Constitutional Court and its success at generating acquiescence to its decisions even when they are unpopular. Based on a national survey, we begin by describing the institutional loyalty the Court enjoys among its constituents. We next consider the consequences of legitimacy by determining whether people are willing to acquiesce to an adverse Court decision on a civil liberties dispute. Our central hypothesis—that legitimate institutions are capable of generating acceptance of decisions, even when citizens find the policy highly disagreeable—receives only conditional support. What little legitimacy the Constitutional Court has acquired does not readily translate into acquiescence to its decisions. The apparent inability of the Court to perform the role of a “veto player” in South African politics has important consequences for that country's efforts to consolidate its democratic transition.
Political scientists have developed increasingly sophisticated understandings of the influences on Supreme Court decision making. Yet, much less attention has been paid to empirical measures of the ...Court's ideological output. We develop a theory of the interactions between rational litigants, lower court judges, and Supreme Court justices. We argue that the most common measure of the Supreme Court's ideological output—whether the Court's decision is liberal or conservative—suffers from systematic bias. We trace this bias empirically and explain the undesirable consequences it has for empirical analyses of judicial behavior. Specifically, we show that, although the Court's preferences are positively correlated with the ideological direction of the justices’ decision to reverse a lower court, the attitudes of the justices are negatively related—and significantly so—to the ideological direction of outcomes that affirm lower court decisions. We also offer a solution that allows scholars to work around this “affirmance bias.”
The Supreme Court, like all political institutions, requires some minimal level of support because, as the high bench performs its political and constitutional roles, the justices must on occasion ...stand against the winds of public opinion. With data from a recent national survey, we reexamine the levels, sources, and explanations of public support for the Supreme Court. Since racial differences in attitudes toward the Court are so great, we focus here only on the attitudes of white U.S. citizens. Our purposes are both substantive and methodological. On the substantive front, we examine changes in the etiology of support. We investigate the traditional explanations of diffuse support, but, more important, we introduce and evaluate the power of a new set of variables, political values. These political values do an uncommonly good job of predicting attitudes toward the Court. In addition, we devote particular attention to the important role of "opinion leaders" as supporters of the Court. These leaders relate to the Court in a fashion very different from that of the mass public. On the methodological front, we offer an alternative means of thinking about and capturing diffuse support for the Court among the mass public. We close with speculations about the process by which diffuse support for the Court changes over time and, more generally, the implications of attitudes among the mass public and opinion leaders for the functioning of the Supreme Court.
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