Do Reasons Matter? The Impact of Opinion Content on Supreme Court Legitimacy

Farganis, Dion

doi:10.1177/1065912911430667

Cited by 43 publications

(29 citation statements)

References 28 publications

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“…Even highly controversial decisions such as Bush v. Gore (2000) seem not to detract from the support people extend to the Court 10 . Indeed, the title of a recent paper asks the question: “Is the Supreme Court Bulletproof ?” (Farganis 2008). Extant research suggests few avenues through which the legitimacy of the Supreme Court might be threatened.…”

Section: Institutional Support For the Supreme Courtmentioning

confidence: 99%

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Gibson¹,

Caldeira²

2011

Law Soc Rev

132

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Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.

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Section: Institutional Support For the Supreme Courtmentioning

confidence: 99%

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Gibson¹,

Caldeira²

2011

Law Soc Rev

132

View full text Add to dashboard Cite

show abstract

“…However, the Casey example is not unique. Farganis (:207) reports that “since the Court's 1954 decision in Brown , in fact, the justices have made seventy‐one such references to the Court's institutional legitimacy, compared with just nine in the 164 years up to that point.”…”

mentioning

confidence: 99%

Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

Gibson¹,

Nelson²

2017

J Empirical Legal Studies

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To what degree is the legitimacy of the U.S. Supreme Court currently at risk? Perhaps the most widely accepted view of how the Supreme Court acquires and maintains its legitimacy is positivity theory, which claims that the legitimizing symbols of judicial authority protect the Court's legitimacy from dissatisfaction with its rulings. Although research has shown that belief in legal realism does not itself threaten the Court's legitimacy, positivity theory suggests that portrayals of the Court as embroiled in politics---that is, as "just another political institution"---can undermine institutional legitimacy. Still, some recent research recognizes that ideological disagreement poses a serious threat to the legitimacy of the Supreme Court. Missing from extant literature is a reconciliation of how these three determinants---ideological dissatisfaction, legal realism, and perceptions of judicial politicization---combine to structure judicial legitimacy. Understanding the difference between perceptions of an "ideological" Court versus a "politicized" Court for institutional legitimacy is our central purpose in this article. We discover that the greatest threats to the Court's legitimacy lie in beliefs that judges are just ordinary politicians (not in ideological dissatisfaction or legal realism). We conclude by drawing out these findings' implications for the upcoming highly politicized battles over nominations to the high bench.

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“…Law and society scholars have a long‐standing interest in the concept of legitimacy as it applies to legal institutions and court outputs (Caldeira and Gibson ; Farganis ; Tyler ; Zink, Spriggs, and Scott 2004). Researchers have investigated how the American public, subsets of the population and particularly relevant legal audiences view the appropriate exercise of judicial authority (Bartels and Johnson ; Gibson and Caldeira ; Tyler ).…”

mentioning

confidence: 99%

Exploring Citizen Assessments of Unilateral Executive Authority

Braman¹

2016

Law Soc Rev

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This study investigates the interaction between constitutional considerations and democratic context in evaluations of executive authority. An identical experiment is conducted using undergraduate and Mechanical Turk samples. A hypothetical article raising the question of executive power varies the (1) issue context, (2) expert assessment of constitutional authority, and (3) level of public support for proposed action. Measures of participants’ issue preferences and level of satisfaction with President Obama are also included in the analysis. Results indicate that participants think differently about the desirability and legitimacy of proposed executive action. Constitutional considerations and satisfaction with the President weigh most heavily in assessments of the appropriateness of executive conduct. Differences observed across samples demonstrate that institutional rules have the potential to constrain the influence of political factors in assessments legitimacy, but this is not inevitably the case. Feelings about the President may be especially important where experts agree that he lacks authority to take action. This could indicate that citizens will rally behind presidents they like, and think more critically of those they do not, in times of constitutional crisis.

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Do Reasons Matter? The Impact of Opinion Content on Supreme Court Legitimacy

Cited by 43 publications

References 28 publications

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

Exploring Citizen Assessments of Unilateral Executive Authority

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