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

Abstract

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.

Dissent, Legitimacy, and Public Support for Court Decisions: Evidence from a Survey-Based Experiment

“…This observed effect of dissent on levels of acceptance is significant across both ex ante supporters and ex ante opponents, which is contrary to Salamone (2014) who shows that dissent primarily has a positive influence on support among ex ante opponents. However, the finding that dissent has a more general effect on public acceptance is consistent with expectations in existing literature arguing that individuals' support for policy outputs is rooted in their commitments to democratic values and processes (e.g., Caldeira and Gibson 1992, Gibson 2007, Gibson and Nelson 2015. Finally, the article demonstrates a substantial influence of diffuse support on public acceptance across the three court decisions, which underscores the importance for Supreme Courts to maintain a "reservoir" of diffuse support or legitimacy if they are to gain acceptance for decisions that are unpopular among segments of the population.…”

“…A common argument is that whereas the absence of dissent may promote the perception that the law is applied in a uniform and impartial manner, the occurrence of dissent may “shake public confidence in the judiciary by bringing into question the certainty of the law” (Walker et al , 387). This alleged negative relationship between dissent and public confidence echoes the widely held view that the legitimacy of high courts is contingent upon the extent to which the public perceives them to be apolitical and neutral adjudicators of the law (see, e.g., Gibson and Nelson , Scheb and Lyons ). According to these views, dissent should have a generally harmful effect on public support, and this should be true regardless of whether individuals hold a favorable or unfavorable attitude toward the courts' policy output.…”

“…Contrary to conventional views on the harm of dissent, such a democratizing effect of dissents might lead to greater support for dissensual decisions. This argument rests on studies that have demonstrated that legitimacy and support for courts are rooted in commitment to democratic values and processes (Caldeira and Gibson 1992, Gibson 2007, Gibson and Nelson 2015. In addition, studies in the social psychology of law and legal compliance suggest that perceptions of procedural justice and the fairness of the resolution process are central to our evaluation of judicial outcomes (see, e.g., Tyler 1988, Tyler and Rasinski 1991.…”

“…This positive influence of dissent on acceptance might be particularly prevalent among the "losers" of a court decision. Whereas "winners" will ordinarily accept a court decision with which they agree (Gibson and Nelson 2014), losers should be more inclined to make evaluations of procedural fairness when they decide whether to support a decision or not (Lind and Tyler 1988, 111).…”

“…In addition to the questions about their policy preferences, the participants were given four questions about the Supreme Court's institutional legitimacy (the questions can be found in the Appendix, Section A). These questions are designed to capture the participant's diffuse support for the institution (Caldeira and Gibson 1992, Gibson et al 2003, 2005 and are commonly used in the literature on judicial support and legitimacy (see, e.g., Bartels and Johnston 2013, Gibson and Caldeira 1995, Gibson and Nelson 2015, Salamone 2014, Zink et al 2009). 4 Whereas specific support refers to the court's decisions (i.e., what they are asked to evaluate in this experiment), diffuse support refers to a reservoir of good will or favorable attitudes that help individuals tolerate outputs that they oppose (Easton, 1965, 1975, Gibson et al 2003, Gibson and Nelson 2014.…”