Public Attitudes about Supreme Court Decision-Making:
Sources of Instability in Beliefs about Legal Realism
Michael J. Nelson
Assistant Professor of Political Science
The Pennsylvania State University
Pond Laboratory
University Park, PA 16802
Phone: 515.351.9686
and
Steven S. Smith
Kate M. Gregg Distinguished Professor of Social Science
Professor of Political Science
Washington University in St. Louis
One Brookings Drive
Campus Box 1027
St. Louis, MO 63130-4899
Phone: 314.935.5630
Fax: 314.935.5688
Public Attitudes about Supreme Court Decision-Making:
Sources of Instability in Beliefs about Legal Realism
Abstract
Despite evidence that public perceptions of the U.S. Supreme Court affect its public support, these attitudes are seldom measured and have never before been measured in a panel study. We report new data regarding perceptions of judicial decision-making, the effect of a high profile decision on those beliefs, and the relationship of those beliefs to diffuse support for the Court. Additionally, we find that individuals exhibit predictable and previously unreported variability in attitudes over time. We find that views of justices’ decisions are pliable, that changes in those views are predicted by attitudes about a recent case, and that knowledgeable Americans show no less pliability than others. We find support for the proposition that changes in views of the Court’s decisionmaking are conditioned by attitudes about the issue at stake and political identities that generate motivated reasoning.
Public Attitudes about Supreme Court Decision-Making:
Sources of Instability in Beliefs about Legal Realism
There has been a resurgence of interest in the determinants of public support for the U.S. Supreme Court (Bartels and Johnston 2013; Gibson and Nelson 2014; Christensen and Glick 2014). Because the Court’s support is not replenished by periodic elections and its justices are appointed for life, the legitimacy of the U.S. Supreme Court is of particular concern to scholars (e.g. Gibson 2012). Indeed, if, as scholars suggest, low levels of diffuse support signal a willingness to advance fundamental changes to the Court, a Court with low levels of public support should become increasingly unlikely to exercise its power of judicial review and fulfill its democratic assignment as a check against the legislative and executive branches of government (Caldeira and Gibson 1992; Gibson and Nelson 2014).
The literature on diffuse support suggests that perceptions of decision-making processes shape overall diffuse support for an institution (Tyler 2006). For the judicial branch, scholars sometimes advance the argument that decision-making processes that are perceived are fair and unbiased—a quality called procedural fairness—are one way that courts can improve their public support (Tyler 1990). Conversely, decisions perceived as unprincipled, arbitrary, or reached through unfair procedures may decrease diffuse support.[1] As Baird and Gangl write, “perceptions of procedural fairness are the foundation of assessments of institutional legitimacy” (Baird and Gangl 2006, 601). Indeed, this argument has taken hold so strongly among practitioners that the American Judge’s Association now offers its members suggestions on how to foster procedural fairness in their courtrooms (American Judges Association 2007; Burke and Leben 2007).[2]
Surprisingly, despite the enormous importance of this topic, the scholarly literature on both perceptions of judges’ decision-making practicesand the effects of those perceptions on institutional support is rather scant. We know little about how average citizens believe that justices domake decisions and even less about how they believe justices should decide cases. In one of the few examinations of the public’s perceptions of judicial decision-making, Gibson and Caldeira(2011)suggest that Americans—and knowledgeable Americans even more so—are not likely to turn against the Court on the basis of specific decisions.[3]
Moreover, because it is based on cross-sectional experimental and observational data, the current literature is unable to make and test claims about the interplay between perceptions of influences on justices’ decisions and support for the U.S. Supreme Court as they evolve over time. We do not know whetherdiffuse support for the Court or beliefs in legal realism are stable among Americans, or even among knowledgeable Americans. Given that even the staunchest supporters of the Court’s deep reservoir of support posit that a string of unpopular decisions has the potential to undermine the judiciary’s public support (Caldeira and Gibson 1992; Gibson, Caldeira, and Baird 1998), understanding the dynamics of attitudes toward the Court’s support and the public’s perceptions of the Court’s decisionmaking is vital.
We take up this challenge in this paper. Our purpose is to provide an appropriate panel-based test of hypotheses about change in views of Court decision-making biases that may be conditioned by evaluations of a prominent Court decision, acquired diffuse support, respondents’ social and political identities, and their level of political knowledge. We outline the hypotheses generated by recent developments in theories of legitimacy and motivated reasoning and their application to public attitudes about the Supreme Court. We describe a panel survey conducted before and after the Supreme Court’s health care reform decision of June 2012 and specify testable hypotheses about attitudes about justices’ decisions.
Our analysis has two purposes. First, we seek to understand the determinants of cross-sectional views of justices’ decisionmaking and the extent to which these views change in response to a high profile decision. On this count, we find that views of justices’ decisions are pliable, that changes in those views arepredicted by attitudes about a recent case, and that knowledgeable Americans show no less pliability than others. Second, we study the consequences of citizens’ views of judicial decisionmaking on the Court’s public support. Wefind that the balance of opinion is supportive of the Court and supports a realists’ interpretation of the Court, although individuals exhibit predictable variability in attitudes over time.
Competing Perspectives on Public Views of the Factors
that InfluenceJustices’ Decisions
The science of Americans’ attitudes toward the Supreme Court has been motivated by a concern about the legitimacy of unelected justices. Judges in state courts face some form of check on their service, but federal judges do not face the same constraints so the public’s perceptions of the federal courts are considered particularly important for the courts’ efficacy.[4] The legitimacy of the federal courts, it is argued, is enhanced by care in selecting judges, extensive formal procedures, elaborate rulings, reliance on precedent, and use of numerous symbols of justice and fairness (Bickel 1986; Breyer 2010; Dworkin 1986; Fried 2000). If judicial decisions are not mechanical applications of the law, they should at least reflect principled, sincere judgments about how the law ought to be applied (Gibson and Caldeira 2011).
Concerns about the bases for judicial opinions are not without consequence. Baird (2001), examining the bases of diffuse support for courts in East and West Germany, finds that West Germans who believed that judges should follow legalistic procedures had higher levels of diffuse support for the Court, although retrospective evaluations of the Court’s actual decisionmaking practices were not related to diffuse support. Likewise, Baird and Gangl (2006) find that perceptions about whether justices follow legalistic or political (e.g. bargaining and compromising) processes when deciding a case have effects on their perceptions of the Court independent of their policy agreement with the Court’s outcome.
Of course, understanding of the relationship between perceptions of the factors that influence justices’ decision and support for the Court requires an accurate characterization of those perceptions and the forces that shape them. Here, two theoretical argumentsoffer guidance. The first, legitimacy and positivity theories,focuses onfactors that produce consensus in favor of the Court and suppress change in support that might otherwise be a response to controversial Court decisions. The second emphasizes how motivated reasoning and the biases shaped by political identitiesmay bifurcateattitudes about the Court in response to controversial decisions and limit overall support for the Court. Bothperspectives warrant discussion.
Legitimacy and Positivity Theories
Legitimacy theory concerns the conditions under which individuals find the actions of individuals or institutions proper, just, or authoritative—that is, legitimate (Tyler 2006). Legitimacy produces deference and voluntary compliance, which, in the case of the Court, is concerned essential to its efficacy. It appears that the perception of fair and just procedures, the hallmark of legal argument and processes, is essential to legitimacy (Gibson 2002; Tyler2000). In contrast, open fights to create biased processes in legislatures and other institutions undermine the perceived legitimacy of their decisions. Rationality, neutrality, and factuality count, too, but elaborate legal processes also contribute to the perception that those tests are met (Tyler 2006).
In political science studies of public attitudes about the Court, all based on cross-sectional surveys, have emphasized legitimacy theory and the presence of broad support for the Court (Gibson, Caldeira, and Spence 2003). Gibson and Caldeira (2011, 200) summarize the political science on the subject with the observation that “the Supreme Court profits from a large store of reasonably stable institutional support.” The Court, they argue, is viewed by the public as playing a “non-political” role in the American system.
Socialization has long played a central role in accounts of the legitimacy of political institutions (Easton 1965; Sears 1975). In part, socialization involves the acceptance of myths or stereotypes (Baird and Gangl 2006). For some social actors and institutions, this may include acceptance of the fairness or justness of decisions (Tyler 2006). Through socialization, support for an institution can become internalized, serve as the basis for deference, and become difficult to undermine. The legitimacy associated with an institution can become “sticky” (Gibson, Caldeira, and Baird 1998).
Naturally, scholars have examined cross-sectional variation in support for the Court. The most important finding is that knowledge of the political system produces support for the Court (Gibson and Nelson 2014). Labeled “positivity theory” by Gibson and Caldeira (2009), the argument is that knowledge of the Court comes with greater exposure to the legitimizing legal processes and symbols associated with the Court. They may be the most fully socialized to the political system. These sophisticated people, who also tend to be engaged and partisan and therefore may bethe most important to the Court’s efficacy, are the most supportive of the Court.
Gibson and Caldeira (2011) demonstrate that the legitimacy of the U.S. Supreme Court does not depend on a public belief that justices apply autonomous legal principles in a mechanical, non-ideological way. Rather, Americans both admire the role of the Court and also recognize the role that discretion and personal views play a role in decision-making. They find that “as knowledge increases, the connection between the belief that judges are not merely politicians in robes and institutional support increases” (211)—knowledge generates both stronger beliefs in legal realism and more diffuse support. They infer that the Court’s “legitimacy seems to flow from the view that discretion is being exercised in a principled, rather than strategic, way” (Gibson and Caldeira 2011, 213). They attribute this combination of attitudes among Americans to the prominent symbols of “fairness and legality” associated with the Court and its rulings (214).
Motivated Reasoning and Identities
A long-standing theme of social science is that individuals are subject to a variety of biases in how they perceive, process, and evaluate the world around them. Motivated reasoning theory emphasizes that reasoning processes become biased when they are motivated by goals beyond accuracy (Kunda 1990; Munro, et al., 2002; Tabor and Lodge 2006). While holding an important policy preference or ideological outlook, evaluations of an event may lead people to selectively perceive factors that influenced the outcome. In the case of Court decisions, we would expect individuals’ attitudes about the policy or constitutional principles at stake to influence their evaluations of the justices’ decision-making processes.
Simon and Scurich (2011) find that evaluations of judges’ decision-making processes are conditional on decision outcome. They experimentally manipulated a vignette with four types of reasoning reported for judges’ decisions, varying from no rationale provided to multiple, two-sided reasons provided in the reported decisions. They found that panelists were far more likely to find an outcome acceptable if it was accompanied by a ruling with more elaborate reasoning, which comports with the view that the usually elaborate Supreme Court decisions are widely viewed as legitimate. However, Simon and Scurichalso found that “participants were indifferent toward the modes of reasoning when they agreed with the outcome of the judges’ decision, but were differentially sensitive to the judicial reasoning when the judge’s decision frustrated their preferred outcome. This finding is consistent with the fact that motivated reasoning influences not only the ultimate conclusion of a decision or inference, but also the procedures, methodologies, or facts that underlie that judgment” (2011, 719).
In addition to bias derived from personal goals and evaluations, individuals may adopt attitudes that are generated by identification with prominent social groups. Social identity is the categorization of the self as a member of a social group from which individuals often acquire esteem (Tajfel 1981). Identities often have the power to produce conformity to the group’s prototype goals and beliefs (Turner 1987). A wide variety of group identities have been linked with variation in political beliefs or attitudes (Conover 1984), including ideological, partisan, religious, and ethnic identities. Identification with elites of any these groups might lead to the adoption of their interpretations about nature of justices’ decision-making processes. If these interpretations are simplified and biased, then identifiers of competing groups are likely to accept divergent views of justices’ biases.
Party identification and ideological identification are forms of identity that are readily associated with a prominent decision like the PPACA. Party and ideological elites who are openly identified and widely reported with the issue provide ready cues. Less obvious is the role of racial identities, although blacks have been thought to have a group identity that was once shaped by the Warren Court’s role in deciding cases on civil rights and other issues and then was reshaped by the shift to the right in the Rehnquist and Roberts Courts (Gibson and Caldiera 1992; Hetherington and Smith 2007).
Whether grounded in individual- or group-derived biases, recent studies of public support for the Court emphasize that ideological objections to the Court and even evaluations of individual cases can generate divergent perceptions of the Court’s legitimacy(Bartels and Johnston 2013; Christenson and Glick 2013; Nelson and Smith 2014; Nicholson and Hansford 2014). As Nelson and Smith (2014) observe, divergent responses to the Court may not change aggregate diffuse support for the Court or even significantly change the cross-sectional correlates of support, but the divergent responses challenge the dominant view that the Court’s reservoir of diffuse public support is stable. They also raise the possibility that belief in realism is more pliable than Gibson and Caldeira suggest.
Hypotheses
Our view of the limited empirical research on public views of justices’ decision-making processes is that it remains deficient. We structure our analysis in three parts: understanding the cross-sectional determinants of perceptions of the factors that influence justices’ decision, understanding change in those perceptions, and understanding the relationship between perceptions of justices’ decisions and diffuse support for the Court.
In the cross-section, we seek to understand the factors that create differences in individuals’ views about the role of personal biases and legal principles in justices’ decisions. Our dependent variable is an individual’s view of realism in justices’ decision making. Knowledge is the only factor highlighted in the literature on relationship between the Court’s legitimacy and beliefs in legal realism (Gibson and Caldeira 2011), but we draw upon the literature on public opinion and motivated reasoning to posit a more complete model of perceived decision-making style that accounts for ideological, partisan, and ethnic identities:
perceived style = ß + ß1knowledge
+ ß2ideological identification + ß3party identification
+ ß4ethnic identification + ε
The positivity thesis predicts a positive relationship between levels of political knowledge and belief in legal realism, while, in light of the conservative balance of justices on the Court, the motivated reasoning thesis predicts ideological, partisan, and ethnicity effects. These effects are estimated for both before and after the PPACA ruling.
Second, we seek to understand how respondents’ perceptions of the factors influencing justices’ decisions changed in response to the 2011 PPACA decision. We model views of justices’ styles in July about how the justices did decide the case controlling for how justices were predicted to decide in May, along with knowledge and policy views:
retrospectiveperceived style = ß+ ß1prospective perceived style
+ ß2knowledge+ ß3policy preference+ ε
The legitimacy/positivity argument suggests that the PPACA decision will not change views of justices’ decision-making approach. We will measure aggregate positive and negative change in perceived style directly. If change occurs, motivated reasoning and identity theories imply, positive evaluations of the PPACA outcome (those who favor the act) should produce a positive change in the way justices’ decision-making styles are viewed, while negative evaluations (those who oppose the act) should produce a negative change in the way justices’ decision-making styles are viewed—that is, ß3> 0. We have no prediction for ß2because we have no reason a priori to argue that knowledge is positively or negatively related to a particular direction of change in views about justices’ decision-making styles.