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[James L. Gibson, guest-blogging, July 21, 2009 at 6:13am] Trackbacks
What Difference Does it Make Whether Ordinary People are Informed About Judicial Affairs?

Our evidence is that ordinary people know far more about the Supreme Court than has heretofore been thought. [For those of you interested in the statistics see the Journal of Politics article -- http://polisci.wustl.edu/sub_page.php?s=3&m=0&d=7 .]

And we suggest that the type of knowledge people hold is more valuable for politics than the type of information people on which most people are ignorant. In my view, it is more useful to know that baseball is played for nine innings, is refereed by an impartial umpire, and with three strikes one is out, than to know "who's on first," who hits the most, and, more recently, who is currently accused of using performance enhancing drugs.

But why is political knowledge important? This question has obvious and not-so-obvious answers.

First, and obviously, citizens of the U.S. are constituents of the Supreme Court and have the right to expect some degree of accountability from that institution. Without doubt, the accountability of individual justices is minuscule; but institutional accountability may not be so small. Citizens who are unhappy with the Supreme Court can properly petition their legislative representatives, for instance, to change the jurisdiction of the institution, removing some types of cases from the Court's docket. Being knowledgeable about the kinds of policies made by the Supreme Court enhances this accountability function, and is a natural part of democratic politics.

A second, not-so-obvious concomitant is associated with political knowledge. It has to do with the legitimacy of the Supreme Court, which requires a digression.

Since the founding of the American republic, politicians and scholars have been impressed with the fragility of judicial power. When it comes to securing compliance with their decisions, courts are said to have neither the power of the purse -- the ability to raise and expropriate money to encourage compliance -- nor the power of the "sword" -- the ability to coerce compliance. In the absence of these tools, courts have only a single form of political capital: legitimacy.

Compliance with court decisions is contingent upon judicial institutions being considered legitimate. Legitimacy is a normative concept, basically meaning that an institution is acting appropriately and correctly, within its mandate. Generally speaking, a great deal of social science research has shown that people obey law more out of a felt normative compunction deriving from legitimacy than from instrumental calculations of costs and benefits.

As a consequence, political scientists have paid considerable attention to the legitimacy of courts, often substituting the phrase "diffuse support" for judgments of legitimacy. Diffuse support is a fundamental commitment to an institution and a willingness to support the institution that extends beyond mere satisfaction with the performance of the institution at the moment ("specific support").

The idea here is that institutions -- especially courts -- must be free to make decisions in opposition to the preferences of the majority; indeed, it is specifically a function of courts (at least in the American cases, where the judiciary is vested with the power of having the last say on the meaning of the constitution -- judicial review) to overturn the actions of the majority when those actions infringe upon the fundamental rights of minorities. Courts must on occasion make hard decisions that are greatly displeasing to the majority, as in freeing obvious criminals due to violations of due process, restraining the majority from imposing its religious beliefs on the entire society, and spying on dissenters and malcontents who threaten the political security of the majority. If courts are dependent upon majority approval for their decisions to be accepted, then one of the most important political functions of courts is in jeopardy.

Political scientists routinely measure the legitimacy of the U.S. Supreme Court via public opinion polls. Implicit in this approach, of course, is the fundamental assumption that the views of ordinary people matter. Many judges, lawyers, and legal scholars believe that elite opinion should dominate and that ordinary people are insufficiently well informed to have meaningful opinions of courts and judges. As it turns out, the empirical evidence is that the American people do indeed hold meaningful attitudes toward the U.S. Supreme Court.

The first conclusion supported by these studies is that the U.S. Supreme Court enjoys a very high level of institutional support. Big majorities of the American people do not want to do away with their Supreme Court; roughly a majority want to protect the Court's jurisdiction; and sizable majorities trust the Court. These data do not indicate unanimity; but they do indicate that the institution enjoys a significant bedrock of support among the American people.

A second important conclusion is that there has been little diminution in support for the U.S. Supreme Court over the past 25 or so years. To the extent that institutional support is not contingent upon performance satisfaction, one would not expect short-term changes in loyalty. In fact, we observe practically none.

One important exception to this conclusion must be noted: 2001, a time at which the U.S. Supreme Court seemed to enjoy a slight upward spike in its legitimacy. As it turns out, that particular survey, conducted around the time the U.S. Supreme Court decided the 2000 presidential election via its decision in Bush v. Gore, has been the object of considerable study and has generated some important conclusions about how support is formed and maintained.

Gibson, Caldeira, and Spence (British Journal of Political Science 2003, reprinted as an appendix to Citizens, Courts, and Confirmations -- see http://press.princeton.edu/titles/8940.html; the book is also summarized at http://www.miller-mccune.com/politics/may-it-diminish-the-court-1193 ) discovered that the legitimacy of the U.S. Supreme Court was not harmed by its decision in Bush v. Gore. Indeed, while it is not surprising that support for the Court rose among Republicans -- the winners in the decision -- our findings indicate that support did not decline among Democrats. Because of the reservoir of goodwill enjoyed by the Supreme Court, people were predisposed to view the decision as grounded in law, not politics, and they therefore accepted it. The 2000 presidential election controversy provides an outstanding example of the utility of institutional legitimacy.

But, it might be asked, what is the connection between judicial knowledge and institutional support?

The most important consequence of political knowledge has been identified in the research reported in Citizens, Courts, Confirmations: Those who are more knowledgeable about courts tend to extend more legitimacy to them. Indeed, this seems to be a tendency not at all limited to the United States (see Gibson, Caldeira, and Baird, American Political Science Review, 1998 for cross-national evidence).

Caldeira and I posit that this "to know them is to love them" effect is largely a function of the knowledgeable being exposed to the highly legitimizing symbols of judicial power: the black robe, the privileged form of address ("your honor"), the deference, even the temple-like building housing most courts. When citizens pay attention to courts, they learn information about them, but, because they are also exposed to these quite powerful legitimizing symbols, the legitimacy of the institution is enhanced. We refer to this as a "positivity bias" in the sense that exposure to court almost inevitably enhances rather than subtracts from legitimacy. Given the positivity bias, is it any wonder that some are positing that the Supreme Court is "bullet-proof," and therefore can get away with virtually any policy, so long as it is draped in the appropriate symbolic shroud.

Thus, having knowledgeable citizens is valuable to a polity in two respects. First, citizens can effectively play the role assigned to them by democratic theory. Second, in the case of courts, exposure enhances institutional legitimacy because citizens are exposed to powerful legitimizing symbols.

smitty1e:
First, and obviously, citizens of the U.S. are constituents of the Supreme Court and have the right to expect some degree of accountability from that institution.

For a topic that would interest an "ordinary citizen", how is it that a plain reading of the Tenth Amendment fails to preclude the Social Security Act?
Restated, the "ordinary citizen" would like to know how we can achieve a Constitution that means what it seems to mean, not what a bunch of pointy-headed bureaucrats want to make it mean.
Thanks,
Chris
7.21.2009 6:56am
PersonFromPorlock:
Smitty, how can you doubt the Constitution means what the Court says it means? They meet in a pseudo-Grecian temple and wear Black Robes, after all.
7.21.2009 7:02am
bearing (mail) (www):
I'm wondering if Mr. Gibson thinks elite opinion should hold sway over popular opinion, seeing as how we're all apparently convinced mainly by the black robes.

Do the silly wigs in the UK help or harm the legitimacy of the courts there? Enquiring minds want to know.
7.21.2009 8:02am
cboldt (mail):
I think the short version is that the SCOTUS maintains its functional legitimacy via symbols, and ignorance on the part of the public. The more one pokes around "under the hood," the less legitimacy.
.
As a question of principle, aside from application, it's no surprise that people support the three-coequal-part government of legislators, enforcers/executive, and judges. Do you want to get rid of the courts? Hell no!
Citizens who are unhappy with the Supreme Court can properly petition their legislative representatives, for instance, to change the jurisdiction of the institution, removing some types of cases from the Court's docket.

The jurisdiction of SCOTUS is set by the Constitution. See Marbury v. Madison. That said, for federal court jurisdiction in general, I can't imagine the citizens petitioning for modifications. The only exception that comes to mind is the recent jurisdictional jockeying around terrorism courts, and while that was "high profile," the extent of comprehension evident in the public debate was approximately ZERO.
7.21.2009 8:13am
Gramarye:
I'm still working my mind around the concept of a "required digression;" I'm trying to decide whether that should be considered oxymoronic or not.

With respect to the Court's and courts' legitimacy, I would certainly hope that there is something deeper at work than merely the outward, symbolic trappings used by the judiciary, if for no other reason than that this suggests that Congress could increase its own legitimacy not by improving its performance, but by merely adopting outward, symbolic trappings of their own that held a certain amount of gravitas and maintaining the facade for long enough for that image to become entrenched in popular culture.

I certainly don't accord the judiciary any more respect because of its cheap black robes or because of its expensive white buildings (though I have been in some beautiful courthouses and courtrooms). I'd prefer that the judges I appear before not be wearing track pants and T-shirts, but that's primarily because I have to appear in a tie, and if I have to live with constricted cranial circulation, so should they. I think the deeper reasons people (including myself) support the Supreme Court even when it makes decisions with which we disagree is because we understand the need for separation of powers and checks and balances, and while judicial review may not always strike down legislative and executive policies with which we disagree, at least it's there ... including, hopefully, in the back of the minds of the president and Congress when they're drafting rules.
7.21.2009 8:32am
John Burgess (mail) (www):
Bad judicial decision, in my experience, usually come from bad law, not interpretation of that law.

Here, the public has a lot it can do, get excited about, actually effect change. Stop electing representatives who see the need for a new law under every headline or for every election, and courts might get a better ride from the public. That's not in the interest of those elected to legislative roles, however, so I'm not holding my breath.

I do, however, use my pen and my phone to let my representatives know where I think the lines should be drawn.
7.21.2009 9:03am
SuperSkeptic (mail):
Imagine the tremendous loss of "legitimacy" once the masses truly realize that judges are just politicians too. 9 National Elections! (two parties)
7.21.2009 10:01am
Soronel Haetir (mail):
So how much does it help court legitimacy that Congress is viewed so disfavorably? Do dips in court approval coincide with peaks in Congressional approval (not that I'm sure such a thing actually happens)
7.21.2009 10:58am
ChrisTS (mail):
Like others here, I find the reference to the 'symbols' a bit odd. I have no doubt that humans are affected by such symbols, but I would not call that 'political knowledge.'

I would like to know what is meant by 'political knowledge' in this context. Is it simply familiarity with the appearance of courts and judges? So, Law and Order is a good source of political knowledge?
7.21.2009 11:14am
Cornellian (mail):
Restated, the "ordinary citizen" would like to know how we can achieve a Constitution that means what it seems to mean, not what a bunch of pointy-headed bureaucrats want to make it mean.

You could try to elect politicians willing to appoint judges who share your view of federalism, but Americans have not been willing to do so.
7.21.2009 11:49am
Brett Marston:
This is partly reflected in some of the comments above, but I wonder what the authors think "legitimating symbols" actually do. Obviously they are important to participants because participants use them. But how do they work? The image I have from the discussion above is quite mechanistic: there is a property called "legitimacy" that somehow is passed through symbols from institutions to citizens.

Here's a shot: to be effective, judicial legitimizing symbols must convey both a message of power and a message of seriousness about commitments to seriousness about constitutional interpretation, deliberation and fairness. In liberal democracies, it's not enough to have a black robe or an echo of religious forms of legitimation. Instead, legitimating symbols must also harmonize with the legitimating ideas that are circulating in the society. This might not be that difficult because there are many such discourses, even though there are serious fights about which ones are the authentic ones. The nice thing about a symbol is that its meaning, while bounded, is indistinct enough to convey different ideas to different people.
7.21.2009 12:06pm
second history:
Another way the Supreme Court (and courts generally) maintain their legitimacy is through secrecy. The Supreme Court is one of the least transparent institutions in Washington, second only to the Fed (and even then the Fed Chairman regularly testifies before Congress and their policymaking committee releases minutes of their meetings, albeit on a delayed basis.) It is about as transparent as the selection of the pope.

While oral agruments are open to the public and media, very few get to attend, and media accounts are invariably truncated. The same applies to lower federal and state courts. As far as I know, Supreme Court conferences are not transcribed and have never been publically released. While a few federal courts of appeal will televise oral arguments, most courts don't.

The Supreme Court may look at Congress and recoil in horror at its televised proceedings, but that is the fault of the institution, not television itself. I am in labor of televising oral arguments at the court of appeals and Supreme Court levels. I believe that "lifting the curtain" will improve the legitimacy of the courts, not degrade it. The public will find that the courts are not remote, but deal with issues that will affect their business, their environment, and their freedom. I hope this will create a more activist public, and force the other institutions (Congress and the Executive) to respond more directly to their concerns. In fact, according to a recently released survey by C-SPAN, 61% of respndents want the Supreme Court to televise its oral arguments (interestingly, the older the survey respondent the less likely they favor televising proceedings, more Democrats favor than Republicans, and more minorities favor than whites.) I would also argue that the Court should release transcripts of its conferences, say, five years after the decision.
7.21.2009 12:09pm
The Unbeliever:
Isn't the question of legitimacy--or the perception of legitimacy--inevitably linked to the methods one has at their disposal to oppose the institution? If 51% of Americans suddenly viewed the Supreme Court as being illegitimate, that they hand down blatantly unconstitutional judgements or they overstep their legal boundaries of jurisdiction, what recourse do the people have?

I think you skip over the issue of majority force a little too lightly. You say "compliance with court decisions is contingent upon judicial institutions being considered legitimate"... but this is only true at a macro level. At the individual level, if a defendant disbelieves in the legitimacy of the court who ruled against him, he des not have an option for non-compliance; the judgements will be enforced on him by the police and other governmental entities who do believe in its legitimacy. Judges in black robes may not have the "power of the sword" in the sense that the are included in a chain of command, but they order bailiffs around, and the sword-bearing organizations jump to follow their decisions.

So the question is, how much of the public's expression of legitimacy is wrapped up in the fact that the state's instruments of force explicitly support the courts in an implicit statement of legitimacy?
7.21.2009 12:10pm
second history:
I am in labor of televising . . .

Definitely not in "labor" but in "favor"
7.21.2009 12:11pm
Seattle Law Student (mail):
And we suggest that the type of knowledge people hold is more valuable for politics than the type of information people on which most people are ignorant.

pretty sure that's a typo. Did you mean to not have that word, or did you mean to add the word 'hold' afterwords. I think it comes out the same either way.
7.21.2009 12:18pm
rosetta's stones:
If courts are dependent upon majority approval for their decisions to be accepted, then one of the most important political functions of courts is in jeopardy.

The courts are not directly dependent upon majority approval, but they are indirectly so, and not even that puts their function in jeopardy. It's just the natural tension that was put in place, and purposed.

If they keep themselves off our radar screens, and act incrementally, their decisions will be absorbed by the polity, (relatively) tension-free. If they act boldly, there will be tension, and it will be played out outside their courtoom, but will come back to affect them in the end.

Fixing old wrongs is bold and sometimes necessary, but going off and creating new wrongs... the courts bring that sorta tension on themselves.
7.21.2009 12:45pm
Avatar (mail):
Keep in mind that judicial affairs, as they are, don't have much to do with people's everyday experiences with the courts.

Most cases don't involve hard questions of the law. Facts get disputed pretty hotly, of course, but the law is a settled question in the vast majority of cases. You might get a traffic ticket and dispute with the police officer about whether you came to a complete stop at that stop sign, but you're not worried that the judge will decide that your infraction is evidence that you are a murderer and sentence you to death. Even people who believe that they, personally, have been treated poorly by the justice system still feel that the courts are doing their job in general (though they may not feel the same about the police!)

This is important, because if someone comes to the conclusion that justice is simply unavailable through the courts, there's always the opportunity to go take it for themselves. (Not necessarily in a murderous spree, either. Remember the Colorado man years ago, who armored his bulldozer and drove it through City Hall before committing suicide?)

Honestly, I doubt the Supreme Court has much of an interface with this. People can disagree with a Supreme Court decision without coming to the conclusion that justice is dead and that it's time to go grab your guns. (And thank goodness!) At that level, it's understood that there are at least some politics involved...

Of course, how much of the difference in public opinion between politicians and Supreme Court justices is, er, because of the difference between politicians and Supreme Court justices? We've been extraordinarily fortunate in that the incidence of corruption at the Supreme Court level is essentially zero; I cannot remember a single case where a Justice was accused of corruption. We practically expect Congressmen to be dirty, but if one of the nine were found to be taking a bribe, the blowback would be instant and tremendous.

The Supreme Court is populated with serious, sober people, of high integrity, and at least a bit of asceticism as well; both in the black robes, and in their personal finances - you don't become a Justice to get rich. Is it any wonder that they enjoy a higher reputation than a bunch of endlessly-pandering, mealy-mouthed politicians?
7.21.2009 1:01pm
Walter Landry:

We've been extraordinarily fortunate in that the incidence of corruption at the Supreme Court level is essentially zero; I cannot remember a single case where a Justice was accused of corruption. We practically expect Congressmen to be dirty, but if one of the nine were found to be taking a bribe, the blowback would be instant and tremendous.


What about Abe Fortas?
7.21.2009 1:18pm
Cato The Elder (mail) (www):

Gibson, Caldeira, and Spence (British Journal of Political Science 2003, reprinted as an appendix to Citizens, Courts, and Confirmations -- see [Appendix]; the book is also summarized at [May It Diminish The Court]) discovered that the legitimacy of the U.S. Supreme Court was not harmed by its decision in Bush v. Gore.

Indeed! I had not realized that the case was remotely controversial as non-lawyer, at least not before becoming a regular at Volokh, but I've noticed it's quite often invoked as a (rare) example of conservative results-based jurisprudence by our resident Democrats and leftists here. Beforehand I had held the favorable impression that the Court had managed to deftly side-step partisanship and resolve the furor on clear and understood legal principles, but apparently that was not the case.
7.21.2009 1:50pm
Soronel Haetir (mail):
Even Abe Fortas' acts weren't aiui about his actual work on the Court. His problems had to do more with getting involved with politics from what I've read.
7.21.2009 3:06pm
Jon Roland (mail) (www):
Over on the election-law
list
Rick Hasen has an interesting announcement of a WIP paper he has posted to SSRN that seems germane to this topic:

Constitutional Avoidance, Anti-Avoidance, NAMUDNO, and Citizens United

I have just posted a draft article, Constitutional Avoidance and Anti-Avoidance at the Roberts Court on SSRN. I've posted this earlier in the writing process than I normally would, in the hopes to get these ideas out here before the briefs are all filed in Citizens United. For this reason, comments are especially welcome as I get this in shape for law review submission.

Here is the abstract:

At the (apparent but not real) end of the October 2008 Supreme Court term, the Court took diametrically opposing positions in a pair of sensitive election law cases. In Northwest Austin Municipal Utility District No. 1 v. Holder (NAMUDNO), the Court avoided deciding a thorny question about the constitutionality of a provision of the Voting Rights Act. The Court did so through a questionable application of the doctrine of "constitutional avoidance." That doctrine (also known as the "avoidance canon") encourages a court to adopt one of several plausible interpretations of a statute in order to avoid deciding a tough constitutional question. In NAMUDNO, however, the Court—without objection from single Justice—embraced a manifestly implausible statutory interpretation to avoid the constitutional question.

A week after NAMUDNO issued, the Court announced it would not be deciding a campaign finance case, Citizens United v. Federal Election Commission, by the Court's summer break as scheduled. Instead, the Court set the case for reargument in September, expressly asking the parties to brief the question whether the Court should overturn two of its precedents upholding the constitutionality of corporate spending limits in candidate elections. The constitutional issue had been abandoned by the law's challengers in the Court below and was not even mentioned in the challengers' jurisdictional statement. Moreover, the constitutional question could easily be avoided through a plausible interpretation of the applicable campaign finance statute. Thus, in Citizens United, the Court gave itself an opportunity to apply a little-noticed principle of anti-avoidance: the Court will eschew a plausible statutory interpretation in order decide a thorny constitutional question. It remains to be seen whether the Court will actually decide the constitutional question when issues its decision. But the reargument order itself embraced the anti-avoidance principle: the Court went out of its way to make a thorny constitutional question more prominent by scheduling briefing and argument on it despite a plausible statutory escape hatch.

What explains the divergent approaches in the two cases, and what does the divergence tell us the Roberts Court? In this Article, I identify the evidence supporting three competing explanations for the Court's actions, ranging from the most charitable to least charitable reading of the Court's motives.

First, the dialogic fixability explanation posits that the Court will use constitutional avoidance only when doing so would further a dialogue with Congress that has a realistic chance of actually avoiding constitutional problems through redrafting. Second, the political legitimacy explanation posits that the Court uses the constitutional avoidance doctrine when it fears that full-blown constitutional pronouncement would harm its legitimacy. Third, the political calculus explanation posits that the Court uses constitutional avoidance and similar doctrines to soften public and Congressional resistance as the Court's movement of the law in its preferred policy direction.

While it is impossible to know which of these explanations is correct, the developments of the October 2008 term suggest Court watchers should continue to keep an eye on use of the constitutional avoidance doctrine for broader clues about the Roberts Court. Whether intended or not, the use of constitutional avoidance and anti-avoidance allows the Court to control the speed and intensity of constitutional and policy change.
7.21.2009 6:17pm
Jon Roland (mail) (www):
We should not forget that judicial sffairs includes the activities of trial judges that are elected. Cases begin there, and the judicial process gets much of its legitimacy there, and loses it there.

See A Lawyer's View of the Justice System, Joseph H. Delaney, July/August, 1999, issue of Analog Science Fiction and Fact, Vol. CXVIX No. 7 &8 — "... the proportion of judges who are dishonest, who are on the take, who harbor prejudices against parties or counsel, is far greater than the lay public realizes. ... Corruption is rampant in courts at every level throughout the country. It is equally rampant among prosecutors and law enforcement people. ... The primary corrupting influence is the drug business. ... the dope interests own contemporary justice. ... There is no greater shock than to find that even with both law and the facts in your favor your constitutional rights are worthless because you can't get the crooked regime to enforce them."

Delaney presents a somewhat different view of the judicial system than many lawyers get from practice in sheltered areas that don't expose them to the corruption.
7.21.2009 6:22pm
Joshua (mail):
One obvious reason laypeople should keep informed about judicial affairs is that laypeople are the ones who serve on juries.
7.21.2009 10:01pm
Walter Landry:

Even Abe Fortas' acts weren't aiui about his actual work on the Court. His problems had to do more with getting involved with politics from what I've read.


As I understand it, what really made him resign is that he was secretly taking $20,000 a year from a Wall Street financier who was later imprisoned for securities violations.
7.22.2009 9:35am
Jon Roland (mail) (www):
Question for the forum. Please provide a list of the judicial rules that are most condusive to abuse and that most need to be amended or removed, and why.
7.22.2009 4:21pm

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