The Volokh Conspiracy - Does Knowing What's Under the Judicial Hood Threaten the Supreme Court's Legitimacy? Part 1.

According to the theory of positivity bias (Gibson and Caldeira,2009, Citizens, Courts, and Confirmations) the institutional legitimacy of the U.S. Supreme Court is enhanced by exposure to the legitimizing symbols of law -- robes, deference, temples, etc.

But do these symbols teach an erroneous view of how judges make decisions? Judicial symbolism is often associated with Mechanical Jurisprudence and the view that judges merely implement laws adopted by others, and Mechanical Jurisprudence is a powerful source of legitimacy for unaccountable institution like the Supreme Court. So the question to consider is whether increased knowledge of the Supreme Court is associated with increased legal realism (Pound 1908), and whether citizens who are legal realists extend support to the Supreme Court.

More specifically, does acknowledging that the justices of the U.S. Supreme Court rely upon their own values in making decisions on cases before the Court destroy the "Myth of Legality" —"the belief that judicial decisions are based on autonomous legal principles" and "that cases are decided by application of legal rules formulated and applied through a politically and philosophically neutral process of legal reasoning" (Scheb and Lyons 2000, 929)— and thereby threaten the Court's legitimacy? If the American people knew the truth about the decision-making process on the Supreme Court (truth = Legal Realism), then would they still be willing to extend institutional support to the Court?

Although these questions seem rather simple to resolve, in fact little extant empirical research has attempted to provide answers, and, more generally, the views of the American people are likely more complicated than simply specifying the answer as "yes, they rely on their own values, and are therefore not legitimate" or "no, they follow the law, ignoring their own values, and therefore are legitimate." Moreover, the empirical literature presents us with some important puzzles and unexplained findings and processes.

From existing research on public attitudes toward law and courts, we do know that, generally, to know more about courts is to hold them in higher esteem. This finding seems to hold in many parts of the world (e.g., Gibson, Caldeira, and Baird 1998). But this simple empirical relationship is far from simple to understand. Presumably, those who know more about courts know more about the realities of how courts actually operate and how judges actually make decisions, and therefore they accept some version of the Legal Realism.

But the conundrum is that scholars typically assume that the legitimacy of judicial institutions can best be sustained by the "Myth of Legality," or some theory of mechanical jurisprudence. Thus, to the extent that increased awareness of courts is associated with a more realistic understanding of how courts and judges make decisions, and to extent that the realist reality is that judges are policy makers who rely upon their own values in making decisions, awareness should be negatively correlated with institutional support, not positively correlated. That positive correlations are so routinely found must indicate some sort of break in the presumed causal chain. Either knowledge does not produce a realistic understanding of decision making, or legitimacy may not depend upon citizens being duped into believing in theories of mechanical jurisprudence and the myth of legality.

The nature of these interrelationships is crucially important for many sorts of issues confronting the judiciary today. For instance, is it possible to discuss openly judges as policy makers without threatening judicial legitimacy? Many seem to assume that acknowledging the policy-making role of judges undermines perceptions of legitimacy and judicial impartiality -- as, for examples, in the minority viewpoint on the U.S. Supreme Court in the case of Republican Party of Minnesota v. White (which extended free speech rights to candidates for judicial office, allowing them to debate public policy issues during their quests for judicial office); or in the unwillingness of nominees to the federal bench to discuss their policy views during confirmation hearings. Most generally, can we hold honest and sincere discussions of judges and judicial decision making without impugning the legitimacy of courts in general and the Supreme Court in particular? To what degree is the legitimacy of the Supreme Court grounded in a myth that seems to become more unsustainable with every passing year?

Greg Caldeira and I have prepared a paper analyzing this question (see the "Segal and Spaeth" paper at http://polisci.wustl.edu/sub_page.php?s=3&m=0&d=7 ). That paper investigates the relationships among knowledge of the Supreme Court, beliefs about the nature of judicial decision-making, and willingness to ascribe legitimacy to the Supreme Court as an institution. The theoretical framework for this analysis is the well-known Legitimacy Theory.

In brief, that theory asserts that: (1) courts are uncommonly dependent upon legitimacy because they have few institutional means of ensuring compliance with their decisions (no purses, no swords); (2) courts value legitimacy highly because legitimacy includes a presumption that decisions, even unpopular ones, ought to be accepted and complied with; and (3) legitimacy depends upon the courts not being viewed as just another political institution; instead, legitimacy requires that citizens distinguish between what it is that judges do and what other politicians do.

At the empirical level, we consider four questions: (1) does knowledge increase institutional support, (2) does institutional support depend on belief in the myth of legality, (3) to what view of judging do the most knowledgeable subscribe, and (4) is the knowledge -- support relationship mediated by distinctive views of how judges go about making decisions?

We think it reasonable to hypothesize that greater exposure to courts is associated with a more realistic view of how courts and judges actually operate. Exposure to courts should be associated with the understanding that judges have discretion available to them when they render their decisions, that the process of decision-making involves far more than "applying" the law to the facts in a mechanical or syllogistic fashion, and that judging inevitably involves and implicates the personal values of judges. To know more about courts is to know that collegial courts like the Supreme Court often, if not typically, render divided and, on occasion, deeply and bitterly divided, decisions. If judges cannot agree on what the law is, then belief in a process of mechanical jurisprudence is difficult to sustain.

Paradoxically, however, the limited evidence we have indicates that greater political knowledge is associated with a less realistic view of how courts actually operate. For instance, long ago, Casey (1974) demonstrated that the more one knows about law and courts, the more one is likely to believe in the theory of mechanical jurisprudence. Something about being exposed to information about courts contributes to people embracing this traditional mythology of judicial decision making.

This paradox is all the more interesting in cross-institutional perspective. Hibbing and Theiss-Morse (1995) have shown, for instance, that greater awareness of the Supreme Court leads to more support for it, whereas greater awareness of Congress is associated with less support for that institution. When people are exposed to judicial institutions, they apparently learn more than a single lesson: They may understand that the court has made a decision in favor of (or opposed to) their interests. But they also learn something about the institution itself. Given the dense syndrome of legitimizing symbols courts employ, it is not surprising that this exposure enhances the institutional legitimacy.

But do Americans actually subscribe to a mythical view of judicial decision making? The evidence is not entirely clear. Baird and Gangl (2006) investigate this hypothesis, although their analysis is based upon the judgments of college students. They posit that perceptions of legalistic decision-making enhance the perceived fairness of the decision-making process, a key underpinning of judicial legitimacy. In their experiment, they used media reports to try to convince the students that a Court decision was based more on political than legal considerations.

Unfortunately, but tellingly, the experiment failed on this score, with a majority of the students believing that the justices followed legalistic considerations even when told about the role of ideological factors. Although this result limits the value of the experiment, the finding does demonstrate the powerful framing effects of the belief in legalistic decision making and how deeply embedded it is among the political beliefs of many Americans. In the end, their analysis also demonstrates that greater belief in the myth of legality is associated with greater perceptions of fairness.

Baird and Gangl also report an unexpected finding for which they have no explanation. Perceptions of legalistic decision making enhance fairness judgments, but perceptions of political decision making do not detract from fairness. Political decision making is portrayed in their experiment by the belief that the "members of the Court engaged in bargaining and compromise to reach this decision." Whether the student believed that bargaining was involved had no impact on perceived procedural fairness.

We suspect that the reason for this finding lies in the conceptualization employed by Baird and Gangl. They clearly postulate an unidimensional continuum ranging from legalistic to political decision making. Legalistic refers to relying upon the law in making decision; political decision making involves bargaining and compromise.

What Baird and Gangl did not appreciate, however, is that two forms of political decision making exist: principled and strategic. Bargaining and compromise can be principled; this process of decision making can focus on real issues and legitimate ideological and legal disagreement. But bargaining and compromise can also be strategic, especially when the actors are attempting to maximize their self interest (e.g., political ambition) rather than reach a negotiated solution to the issue at hand. We hypothesize that to the extent that the American people view discretionary and ideologically based decision making as principled, those views will not undermine the Supreme Court's legitimacy.

This then leads to the puzzle with which this paper is concerned: Greater attention to courts is most likely associated with greater exposure to legitimizing symbols and therefore with enhanced judicial legitimacy. But, greater exposure is also associated with a more realistic view of judicial decision making, a view emphasizing discretion and policy making, and that view tends to undermine judicial legitimacy. Reconciling this paradox is important for developing a more thorough understanding of citizen beliefs about the judiciary.

Logically, then, extant research findings can only be explained by two processes. First, most people must know little about the Court and therefore accept the myth of legality, which leads to the ascription of legitimacy. Or, second, knowing more about the Court must produce beliefs about judicial decision making that do not undermine the legitimacy of courts. Thus, one of the most important questions this research seeks to answer is whether institutional support is undermined by holding a realistic understanding of the role of discretion and values-based decision making when it comes to the U.S. Supreme Court.

References Baird, Vanessa A., and Amy Gangl. 2006. "Shattering the Myth of Legality: The Impact of the Media's Framing of Supreme Court Procedures on Perceptions of Fairness." Political Psychology 27 (#4): 597-614. Casey, Gregory 1974. "The Supreme Court and Myth: An Empirical Investigation." Law and Society Review 8 (Spring): 385-419. Gibson, James L., and Gregory A. Caldeira. 2009. Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People. Princeton, NJ: Princeton University Press. Gibson, James L., Gregory A. Caldeira, and Vanessa Baird. 1998. "On the Legitimacy of National High Courts." American Political Science Review 92 (#2, June): 343-358. Hibbing, John R., and Elizabeth Theiss-Morse. 1995. Congress as Public Enemy: Public Attitudes Toward American Political Institutions. Cambridge: Cambridge University Press. Pound, Roscoe. 1908. "Mechanical Jurisprudence." Columbia Law Review 8 (December):605-623. Scheb, John M., II, and William Lyons. 2000. "The Myth of Legality and Public Evaluation of the Supreme Court." Social Science Quarterly 81 (#4, December): 928-940.

	[James L. Gibson, guest-blogging, July 22, 2009 at 4:33am] Trackbacks Does Knowing What's Under the Judicial Hood Threaten the Supreme Court's Legitimacy? Part 1. According to the theory of positivity bias (Gibson and Caldeira,2009, Citizens, Courts, and Confirmations) the institutional legitimacy of the U.S. Supreme Court is enhanced by exposure to the legitimizing symbols of law -- robes, deference, temples, etc. But do these symbols teach an erroneous view of how judges make decisions? Judicial symbolism is often associated with Mechanical Jurisprudence and the view that judges merely implement laws adopted by others, and Mechanical Jurisprudence is a powerful source of legitimacy for unaccountable institution like the Supreme Court. So the question to consider is whether increased knowledge of the Supreme Court is associated with increased legal realism (Pound 1908), and whether citizens who are legal realists extend support to the Supreme Court. More specifically, does acknowledging that the justices of the U.S. Supreme Court rely upon their own values in making decisions on cases before the Court destroy the "Myth of Legality" —"the belief that judicial decisions are based on autonomous legal principles" and "that cases are decided by application of legal rules formulated and applied through a politically and philosophically neutral process of legal reasoning" (Scheb and Lyons 2000, 929)— and thereby threaten the Court's legitimacy? If the American people knew the truth about the decision-making process on the Supreme Court (truth = Legal Realism), then would they still be willing to extend institutional support to the Court? Although these questions seem rather simple to resolve, in fact little extant empirical research has attempted to provide answers, and, more generally, the views of the American people are likely more complicated than simply specifying the answer as "yes, they rely on their own values, and are therefore not legitimate" or "no, they follow the law, ignoring their own values, and therefore are legitimate." Moreover, the empirical literature presents us with some important puzzles and unexplained findings and processes. From existing research on public attitudes toward law and courts, we do know that, generally, to know more about courts is to hold them in higher esteem. This finding seems to hold in many parts of the world (e.g., Gibson, Caldeira, and Baird 1998). But this simple empirical relationship is far from simple to understand. Presumably, those who know more about courts know more about the realities of how courts actually operate and how judges actually make decisions, and therefore they accept some version of the Legal Realism. But the conundrum is that scholars typically assume that the legitimacy of judicial institutions can best be sustained by the "Myth of Legality," or some theory of mechanical jurisprudence. Thus, to the extent that increased awareness of courts is associated with a more realistic understanding of how courts and judges make decisions, and to extent that the realist reality is that judges are policy makers who rely upon their own values in making decisions, awareness should be negatively correlated with institutional support, not positively correlated. That positive correlations are so routinely found must indicate some sort of break in the presumed causal chain. Either knowledge does not produce a realistic understanding of decision making, or legitimacy may not depend upon citizens being duped into believing in theories of mechanical jurisprudence and the myth of legality. The nature of these interrelationships is crucially important for many sorts of issues confronting the judiciary today. For instance, is it possible to discuss openly judges as policy makers without threatening judicial legitimacy? Many seem to assume that acknowledging the policy-making role of judges undermines perceptions of legitimacy and judicial impartiality -- as, for examples, in the minority viewpoint on the U.S. Supreme Court in the case of Republican Party of Minnesota v. White (which extended free speech rights to candidates for judicial office, allowing them to debate public policy issues during their quests for judicial office); or in the unwillingness of nominees to the federal bench to discuss their policy views during confirmation hearings. Most generally, can we hold honest and sincere discussions of judges and judicial decision making without impugning the legitimacy of courts in general and the Supreme Court in particular? To what degree is the legitimacy of the Supreme Court grounded in a myth that seems to become more unsustainable with every passing year? Greg Caldeira and I have prepared a paper analyzing this question (see the "Segal and Spaeth" paper at http://polisci.wustl.edu/sub_page.php?s=3&m=0&d=7 ). That paper investigates the relationships among knowledge of the Supreme Court, beliefs about the nature of judicial decision-making, and willingness to ascribe legitimacy to the Supreme Court as an institution. The theoretical framework for this analysis is the well-known Legitimacy Theory. In brief, that theory asserts that: (1) courts are uncommonly dependent upon legitimacy because they have few institutional means of ensuring compliance with their decisions (no purses, no swords); (2) courts value legitimacy highly because legitimacy includes a presumption that decisions, even unpopular ones, ought to be accepted and complied with; and (3) legitimacy depends upon the courts not being viewed as just another political institution; instead, legitimacy requires that citizens distinguish between what it is that judges do and what other politicians do. At the empirical level, we consider four questions: (1) does knowledge increase institutional support, (2) does institutional support depend on belief in the myth of legality, (3) to what view of judging do the most knowledgeable subscribe, and (4) is the knowledge -- support relationship mediated by distinctive views of how judges go about making decisions? We think it reasonable to hypothesize that greater exposure to courts is associated with a more realistic view of how courts and judges actually operate. Exposure to courts should be associated with the understanding that judges have discretion available to them when they render their decisions, that the process of decision-making involves far more than "applying" the law to the facts in a mechanical or syllogistic fashion, and that judging inevitably involves and implicates the personal values of judges. To know more about courts is to know that collegial courts like the Supreme Court often, if not typically, render divided and, on occasion, deeply and bitterly divided, decisions. If judges cannot agree on what the law is, then belief in a process of mechanical jurisprudence is difficult to sustain. Paradoxically, however, the limited evidence we have indicates that greater political knowledge is associated with a less realistic view of how courts actually operate. For instance, long ago, Casey (1974) demonstrated that the more one knows about law and courts, the more one is likely to believe in the theory of mechanical jurisprudence. Something about being exposed to information about courts contributes to people embracing this traditional mythology of judicial decision making. This paradox is all the more interesting in cross-institutional perspective. Hibbing and Theiss-Morse (1995) have shown, for instance, that greater awareness of the Supreme Court leads to more support for it, whereas greater awareness of Congress is associated with less support for that institution. When people are exposed to judicial institutions, they apparently learn more than a single lesson: They may understand that the court has made a decision in favor of (or opposed to) their interests. But they also learn something about the institution itself. Given the dense syndrome of legitimizing symbols courts employ, it is not surprising that this exposure enhances the institutional legitimacy. But do Americans actually subscribe to a mythical view of judicial decision making? The evidence is not entirely clear. Baird and Gangl (2006) investigate this hypothesis, although their analysis is based upon the judgments of college students. They posit that perceptions of legalistic decision-making enhance the perceived fairness of the decision-making process, a key underpinning of judicial legitimacy. In their experiment, they used media reports to try to convince the students that a Court decision was based more on political than legal considerations. Unfortunately, but tellingly, the experiment failed on this score, with a majority of the students believing that the justices followed legalistic considerations even when told about the role of ideological factors. Although this result limits the value of the experiment, the finding does demonstrate the powerful framing effects of the belief in legalistic decision making and how deeply embedded it is among the political beliefs of many Americans. In the end, their analysis also demonstrates that greater belief in the myth of legality is associated with greater perceptions of fairness. Baird and Gangl also report an unexpected finding for which they have no explanation. Perceptions of legalistic decision making enhance fairness judgments, but perceptions of political decision making do not detract from fairness. Political decision making is portrayed in their experiment by the belief that the "members of the Court engaged in bargaining and compromise to reach this decision." Whether the student believed that bargaining was involved had no impact on perceived procedural fairness. We suspect that the reason for this finding lies in the conceptualization employed by Baird and Gangl. They clearly postulate an unidimensional continuum ranging from legalistic to political decision making. Legalistic refers to relying upon the law in making decision; political decision making involves bargaining and compromise. What Baird and Gangl did not appreciate, however, is that two forms of political decision making exist: principled and strategic. Bargaining and compromise can be principled; this process of decision making can focus on real issues and legitimate ideological and legal disagreement. But bargaining and compromise can also be strategic, especially when the actors are attempting to maximize their self interest (e.g., political ambition) rather than reach a negotiated solution to the issue at hand. We hypothesize that to the extent that the American people view discretionary and ideologically based decision making as principled, those views will not undermine the Supreme Court's legitimacy. This then leads to the puzzle with which this paper is concerned: Greater attention to courts is most likely associated with greater exposure to legitimizing symbols and therefore with enhanced judicial legitimacy. But, greater exposure is also associated with a more realistic view of judicial decision making, a view emphasizing discretion and policy making, and that view tends to undermine judicial legitimacy. Reconciling this paradox is important for developing a more thorough understanding of citizen beliefs about the judiciary. Logically, then, extant research findings can only be explained by two processes. First, most people must know little about the Court and therefore accept the myth of legality, which leads to the ascription of legitimacy. Or, second, knowing more about the Court must produce beliefs about judicial decision making that do not undermine the legitimacy of courts. Thus, one of the most important questions this research seeks to answer is whether institutional support is undermined by holding a realistic understanding of the role of discretion and values-based decision making when it comes to the U.S. Supreme Court. References Baird, Vanessa A., and Amy Gangl. 2006. "Shattering the Myth of Legality: The Impact of the Media's Framing of Supreme Court Procedures on Perceptions of Fairness." Political Psychology 27 (#4): 597-614. Casey, Gregory 1974. "The Supreme Court and Myth: An Empirical Investigation." Law and Society Review 8 (Spring): 385-419. Gibson, James L., and Gregory A. Caldeira. 2009. Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People. Princeton, NJ: Princeton University Press. Gibson, James L., Gregory A. Caldeira, and Vanessa Baird. 1998. "On the Legitimacy of National High Courts." American Political Science Review 92 (#2, June): 343-358. Hibbing, John R., and Elizabeth Theiss-Morse. 1995. Congress as Public Enemy: Public Attitudes Toward American Political Institutions. Cambridge: Cambridge University Press. Pound, Roscoe. 1908. "Mechanical Jurisprudence." Columbia Law Review 8 (December):605-623. Scheb, John M., II, and William Lyons. 2000. "The Myth of Legality and Public Evaluation of the Supreme Court." Social Science Quarterly 81 (#4, December): 928-940.