The Volokh Conspiracy - 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.

	[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.