On the Ideological Foundations of Supreme Court Legitimacy in the American Public

Abstract

Conventional wisdom says that individuals’ ideological preferences do not influence Supreme Court legitimacy orientations. Most work is based on the assumption that the contemporary Court is objectively conservative in its policymaking, meaning that ideological disagreement should come from liberals and agreement from conservatives. Our nuanced look at the Court's policymaking suggests rational bases for perceiving the Court's contemporary policymaking as conservative, moderate, and even liberal. We argue that subjective ideological disagreement—incongruence between one's ideological preferences and one's perception of the Court's ideological tenor—must be accounted for when explaining legitimacy. Analysis of a national survey shows that subjective ideological disagreement exhibits a potent, deleterious impact on legitimacy. Ideology exhibits sensible connections to legitimacy depending on how people perceive the Court's ideological tenor. Results from a survey experiment support our posited mechanism. Our work has implications for the public's view of the Court as a “political” institution.

The Two Opposing Effects of Judicial Elections on Legitimacy Perceptions

“…Moving from ideological agreement to a low level of ideological disagreement has a substantial negative effect on perceived legitimacy, but there is not much difference between mild ideological disagreement and large amounts of ideological disagreement. The size of the effect is comparable with that in Bartels et al (2013) in which moving from strong ideological agreement to strong disagreement shifted the predicted value of legitimacy by 13.9% of legitimacy's range.…”

“…Importantly, the predicted value for "much too liberal" is significantly lower at p < .05 than for those who answered "much too conservative." The 4.43 difference between "much too liberal" and "just about right" represents 28% of legitimacy's range, which is just over twice the size of the effect in Bartels et al (2013). 17 It is important to note that the difference in effects between perceiving the court as "much too liberal" and perceiving it as "much too conservative" are not driven by conservatives attributing less legitimacy to the court.…”

“…This variable speaks to the debate between Bartels and Johnston (2013) and Gibson and Nelson (2015) over the size of the relationship between subjective ideological disagreement and perceived legitimacy, but applies that debate to state supreme courts rather than the U.S. Supreme Court. The item asks the subjects whether they think the court makes decision that are much too liberal, somewhat too liberal, just about right, somewhat too conservative, or much too conservative.…”

“…The item asks whether the court is too liberal, somewhat too liberal, just about right, somewhat too conservative, or much too conservative. This variable speaks to the debate between Bartels and Johnston (2013) and Gibson and Nelson (2015) concerning the size of the effect of subjective ideological distance on the legitimacy of the U.S. Supreme Court. The method of measuring perceived ideological distance in the current study differs from these two previous studies.…”

“…Rather than assess the subjects' perceived ideology of the court and create a difference measure using their own ideological self-placement, one item is used to directly ask for the subject's perceived ideological distance from the court. Like Bartels and Johnston (2013), the analysis uses an indicator variable for each level of ideological disagreement because the effect may be nonlinear. Separate indicator variables are included for the too liberal and too conservative options to determine whether the effect is not only nonlinear but also asymmetrical.…”