Judicial Philosophy and the Public’s Support for Courts

Abstract

How do Americans’ preferences over judicial philosophy influence their support for judges and judicial decisions? Using an experiment attached to an adaptive choice-based conjoint analysis, we find that people hold preferences over judicial philosophies, that they rely on those preferences to evaluate judges and decisions, and that those preferences are not simply stand-ins for ideology and partisanship. These findings suggest that to understand people’s support for judges and judicial decisions one must pay attention to judicial philosophy.

The American public's attitudes over how judges use legal principles to make decisions

“…As described further in the next section, we conceptualize these attitudes as about "principles" that are either "traditional" or "non-traditional" and theorize that Americans' views differ across these ostensibly apolitical principles depending on elite cues and one's political sophistication. In this, our approach differs from research that has considered but ultimately not endorsed the view that elite cues drive the strength of attitudes toward the competing judicial philosophies of originalism and living constitutionalism (Krewson and Owens, 2023). 6 In our perspective, elite cues affect which principles Americans support, but more sophisticated Americans (especially liberal ones) may still support a range of principles.…”

“…Krewson and Owens (2021) employ a conjoint design to study whether a hypothetical judge's judicial philosophy shapes a respondent's support for the judge's nomination. The authors find that certain legal philosophies (originalism) are more supported than others (adherence to precedent, living constitutionalism) and that partisanship conditions these views, with Democrats more supportive of living constitutionalism and Republicans originalism (see also Krewson and Owens, 2023).…”

“…To develop expectations for how Americans' attitudes toward these principles are arranged, we emphasize the role of political elites, in contrast to scholarship that either remains agnostic (Krewson and Owens, 2021) or considers but ultimately does not endorse the role of elites in shaping attitudes toward the law (Krewson and Owens, 2023). 14 We expect that attitudes toward principles of judging are particularly likely to be shaped by political elites.…”

“…14 Krewson and Owens (2023) find no relationship between the strength of an individual's ideological self-identification and their strength of views on originalism, although they note that "[t]he estimated effect of strength of ideology decreases among low knowledge respondents to a substantial degree" (955). such as support for the Supreme Court or a judicial nominee.…”

The Gender Gap in Supreme Court Legitimacy

“…Work more directly tied to the federal judiciary produces similar findings. For example, Krewson & Owens (2022) demonstrate that people evaluate federal decisions based on their agreement with outputs as well as the judicial philosophy employed in a case. Using a person's less preferred judicial philosophy caused them to be less trusting of a judge and less willing to accept a judge's decision, compared to their trust and acceptance for an identical decision using their preferred philosophy.…”