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Abstract: Conventional political science wisdom holds that contemporary American politics is characterized by deep and profound partisan and ideological divisions. Unanswered is the question of whether those divisions have spilled over into threats to the legitimacy of the United States Supreme Court. Since the Court is often intimately involved in making policy in many policy areas that divide Americans, including the contested 2000 presidential election, it is reasonable to hypothesize that loyalty toward the institution depends upon policy and/or ideological agreement and partisanship. Using data stretching from 1987 through 2005, the analysis reveals that Court support has not declined. Nor is it connected to partisan and ideological identifications. Instead, support is embedded within a larger set of relatively stable democratic values. Institutional legitimacy may not be obdurate, but it does not seem to be caught up in the divisiveness that characterizes so much of American politics - at least not at present.
Institutional Legitimacy, Positivity Bias, Diffuse Support
Abstract: Social scientists have taught us a great deal about the legitimacy of the U.S. Supreme Court. Unfortunately, however, most research fails to consider how the public's views of political institutions like the Court change over time. But opinions can indeed change, with at least two types of "exogenous" sources - controversial Supreme Court decisions and politicized confirmation hearings - providing engines for attitude change. Events such as these may awaken attitudes from their hibernation, allowing for the possibility of updating. Two types of change seem possible: Attention to things judicial may be associated with exposure to highly legitimizing symbols of judicial power (e.g., robes), symbols that teach the lesson that the Court is different from ordinary political institutions and therefore is worthy of esteem. Gibson and Caldeira refer to this as "positivity bias." Alternatively, events may teach that the Court is not different, that its role is largely "political," and that the "myth of legality" really is a myth. Since so few studies have adopted a dynamic perspective on attitudes toward institutions, we know little about how these processes of attitude change take place. Based on a three-wave national survey of ordinary Americans, we attempt to understand the influence of the Alito nomination/confirmation process on loyalty toward the Supreme Court. Our most important finding is that exposure to advertisements by interest groups for and against Alito's confirmation contributes to the erosion of support for the Court. These advertisements seem to encourage the belief that the Supreme Court is "just another political institution," which, in the political climate in the country, is not an accolade. Politicized confirmation processes therefore seem to have considerable capacity to undermine the legitimacy of the Supreme Court itself.
Alito Nomination, Supreme Court legitimacy, positivity theory,confirmation politics,public opinion
Abstract: Institutional legitimacy is perhaps the most important political capital courts possess. Many believe, however, that the legitimacy of elected state courts is being threatened by the rise of politicized judicial election campaigns and the breakdown of judicial impartiality. Three features of such campaigns, the argument goes, are dangerous to the perceived impartiality of courts: campaign contributions, attack ads, and policy pronouncements by candidates for judicial office. By means of an experimental vignette embedded in a representative survey, I investigate whether these factors in fact compromise the legitimacy of courts. The survey data indicate that campaign contributions and attack ads do indeed lead to a diminution of legitimacy, in courts just as in legislatures. However, policy pronouncements, even those promising to make decisions in certain ways, have no impact whatsoever on the legitimacy of courts and judges. These results are strongly reinforced by the experiment's ability to compare the effects of these campaign factors across institutions (a state Supreme Court and a state legislature). Thus, this analysis demonstrates that legitimacy is not obdurate and that campaign activity can indeed deplete the reservoir of goodwill courts typically enjoy, even if the culprit is not the free-speech rights the U.S. Supreme Court announced in 2002.
Judicial Legitimacy, State Court Elections, Minnesota v. White, Campaigning
State Judicial Elections, Institutional Legitimacy, Campaigning, Public Opinion
Abstract: Conventional wisdom holds that the American people are woefully ignorant about law and courts. In light of this ignorance, many question whether the public should play a role in the judicial process, as in whether legal actors should be accountable to the majority. Unfortunately, however, much of what we know about public knowledge of law and courts is based upon flawed measures and procedures. For instance, the American National Election Study, a prominent source of the conclusion that the Americans know little if anything about the United States Supreme Court, codes as incorrect the reply that William Rehnquist is (was) the Chief Judge of the United States Supreme Court - the respondents, to be judged knowledgeable, must use the word "justice" instead of "judge." More generally, the use of open-ended recall questions leads to a serious and substantial under-estimation of the extent to which ordinary people know about law and courts. The purpose of this paper is to revisit the question of how knowledgeable the American people are about the United States Supreme Court. Based on two national surveys - and using more appropriate closed-ended questions - we show that levels of knowledge about the Supreme Court and its justices are far higher than any earlier surveys have ever documented. Based on an experiment embedded in one of the national surveys, we also demonstrate a dramatic effect of question form on levels of knowledge. Finally, we draw out the implications of political knowledge for how people understand judicial decision making, and in particular how likely they are to embrace the so-called myth of legality. Our findings indicate that higher knowledge is associated with the belief that courts are different from ordinary political institutions. The knowledgeable accept that judges have great discretion, and therefore must rely upon on their attitudes and values in making their decisions, but something about learning about courts leads to the view that courts are distinctive, relatively non-political institutions. We conclude this paper by re-connecting these findings to positivity theory, which asserts that paying attention to courts not only provides citizens information, but it also exposes them to the powerful symbols of judicial legitimacy.
Public Opinion Toward Courts, Political Knowledge, Positivity Theory
Abstract: Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation’s highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences – a tenet of Legal Realism and the Attitudinal Model – the belief that the justices merely “apply” the law – Mechanical Jurisprudence – is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court – the most unaccountable of all American political institutions – is nurtured by the view that judicial decision making is discretionless, mechanical, and technical, the sources of institutional legitimacy under Legal Realism are less obvious. Here we posit – and demonstrate, using a nationally representative sample – that the American people understand judicial decision making in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in Mechanical Jurisprudence is not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.
Abstract: Institutional legitimacy is perhaps the most important political capital courts possess. Many believe, however, that the legitimacy of elected state courts is being threatened by the rise of politicized judicial election campaigns. At least three features of such campaigns, the argument goes, are dangerous to the perceived impartiality of courts: campaign contributions, attack ads, and policy pronouncements by candidates for judicial office. By means of an experimental vignette embedded in a representative national survey, I investigate whether these factors in fact compromise the perceived impartiality of courts. The survey data indicate that campaign contributions do indeed lead to a diminution of legitimacy, in courts just as in legislatures. The use of attack ads detracts from legislative legitimacy, but not from the legitimacy of courts. Most important, however, policy pronouncements, even those promising to make decisions in a certain way, have no impact whatsoever on the legitimacy of courts and judges. Thus, this analysis demonstrates that legitimacy is not obdurate and that campaign activity can indeed deplete the reservoir of goodwill courts typically enjoy in the United States, even if the culprit is not the free-speech rights of candidates for state judicial office.
Republican Party of Minnesota v. White, Judicial Elections, Campaigning, Attack Ads, Campaign Contributions, Policy Talk
Abstract: Many legal scholars and observers perceive elected state courts in the U.S. as under siege by the politicization of judicial elections – by candidates for judicial office making policy pronouncements and promises, using ads attacking their opponents (often scurrilously), and, most important, by accepting campaign contributions and support from organizations litigating before the very judges these groups helped elect. Since no form of political capital is more valuable to courts than institutional legitimacy, the hypothesis that campaign activities undermine judicial legitimacy must be taken quite seriously.
Our purpose in this paper is to investigate citizen perceptions of the impartiality and legitimacy of courts. We focus on the residents of West Virginia, because that state has recently been a battleground for intense conflict over campaign support and perceived conflicts of interest and loss of impartiality. We employ an experimental vignette embedded within a representative sample of West Virginians to test hypotheses about several factors that might affect perceived judicial impartiality: (1) campaign contributions and support; (2) the size of such support; (3) whether the judge accused of holding a conflict of interest withdraws from the case; and (4A) if not, whether that judge’s vote was crucial to the outcome, and (4B) if so, whether the party providing the campaign support wins or loses the lawsuit. Our theoretical objectives in this paper are to assess the determinants of citizens’ views of judicial impartiality, following earlier research on how campaigning affects such perceptions. More practically, we test the hypothesis that recusals can rehabilitate a judge and/or court from perceptions of a conflict of interest. In almost every respect, our findings are not as expected. Perhaps most important, contributions offered but rejected by the candidate have similar effects to contributions offered and accepted. And, although recusal can rehabilitate a court/judge to some degree, the effect of recusal is far from the complete restoration of the impartiality and legitimacy of the institution. We are also surprised that about one-third of the respondents are unfazed by the most conflicted circumstance our vignette imagines. We attribute that finding to the “reservoir of goodwill” enjoyed by courts and to the framing effects flowing from pre-existing loyalty to the judiciary. The processes by which citizens form and update their opinions of judges and courts are certainly complicated, but seem at least to involve pre-existing attitudes, expectations of judges, and perceptions of contextual factors, as our analysis of conditional influences demonstrates. Finally, our findings indicate that several of the assumptions of the majority in the recently decided Caperton v. Massey are empirically inaccurate, at least from the viewpoint of the citizens of West Virginia.
Abstract: Many legal scholars and observers perceive elected state courts in the U.S. as under siege by the politicization of judicial elections - by candidates for judicial office making policy pronouncements and promises, using ads attacking their opponents (often scurrilously), and, most important, by accepting campaign contributions and support from organizations litigating before the very judges these groups helped elect. Since no form of political capital is more valuable to courts than institutional legitimacy, the hypothesis that campaign activities undermine judicial legitimacy must be taken quite seriously.
Our purpose in this paper is to investigate citizen perceptions of the impartiality and legitimacy of courts. We focus on the residents of West Virginia, because that state has recently been a battleground for intense conflict over campaign support and perceived conflicts of interest and loss of impartiality. We employ an experimental vignette embedded within a representative sample of West Virginians to test hypotheses about several factors that might affect perceived judicial impartiality: (1) campaign contributions and support; (2) the size of such support; (3) whether the judge accused of holding a conflict of interest withdraws from the case; and (4A) if not, whether that judge's vote was crucial to the outcome, and (4B) if so, whether the party providing the campaign support wins or loses the lawsuit. Our theoretical objectives in this paper are to assess the determinants of citizens' views of judicial impartiality, following earlier research on how campaigning affects such perceptions. More practically, we test the hypothesis that recusals can rehabilitate a judge and/or court from perceptions of a conflict of interest. In almost every respect, our findings are not as expected. Perhaps most important, contributions offered but rejected by the candidate have similar effects to contributions offered and accepted. And, although recusal can rehabilitate a court/judge to some degree, the effect of recusal is far from the complete restoration of the impartiality and legitimacy of the institution. We are also surprised that about one-third of the respondents are unfazed by the most conflicted circumstance our vignette imagines. We attribute that finding to the "reservoir of goodwill" enjoyed by courts and to the framing effects flowing from pre-existing loyalty to the judiciary. The processes by which citizens form and update their opinions of judges and courts are certainly complicated, but seem at least to involve pre-existing attitudes, expectations of judges, and perceptions of contextual factors, as our analysis of conditional influences demonstrates. Finally, our findings indicate that several of the assumptions of the majority in the recently decided Caperton v. Massey are empirically inaccurate, at least from the viewpoint of the citizens of West Virginia.
Judicial Legitimacy, Recusual, Fair and Impartial, Campaign Contributions, Judicial Elections
Abstract: A new era has emerged in the ways in which candidates for state judicial office campaign. In the past, judicial elections were largely devoid of policy content, with candidates typically touting their judicial experience and other preparation for serving as a judge. Today, in many if not most states, such campaigns are relics of the past. Modern judicial campaigns have adopted many of the practices of candidates for other types of political office, including soliciting campaign contributions, using attack ads, and even making promises about how they will decide issues if elected to the bench. Not surprisingly, this new style of judicial campaigning has caused considerable consternation among observers of the courts, with many fearing that such activity will undermine the very legitimacy of these fragile legal institutions. Such fears, however, are grounded in practically no rigorous empirical evidence on the effects of campaign activity on public evaluations of judicial institutions. The purpose of this paper is to investigate the effects of campaign activity on the perceived legitimacy of courts. Using survey data drawn from Kentucky, I use both post hock and experimental methods to assess whether public perceptions of courts are influenced by various sorts of campaign activity. In general, my findings are that different types of campaign activity have quite different effects. For instance, policy pronouncements by candidates do not undermine judicial legitimacy, whereas policy promises do. Throughout the analysis, I compare perceptions of courts and legislatures, and often find that courts are far less unique than many ordinarily assume. I conclude this paper with a discussion of the implications of the findings for the contemporary debate over the using elections to select judges to the high courts of many of the American states.
judicial elections, campaigning, Republican Party of Minnesota v. White
Abstract: Cambodia is in the midst of trying some of the leaders of the Khmer Rouge for their actions during the time of the Killing Fields. Beyond the effects on individual victims and perpetrators, many will ask whether this process of historical accountability will have a broader impact on Cambodian society and political culture. One possible consequence of the trials is that the attitudes of ordinary Cambodians toward the rule of law will be affected. One hypothesis is that the trials will restore faith in the rule of law, a faith undermined by the failure of the state to take action against the miscreants for thirty years. Other hypotheses are also tenable. The purpose of this paper is to examine the attitudes of Cambodians toward the rule of law. Based on a nationally representative survey conducted in 2007 – well before the trials began – our evidence is that Cambodians hold an extremely strong preference for strict adherence to legal universalism. Because support for the rule of law is so strong, the trials are highly unlikely to make it stronger. From the point-of-view of transitional justice processes, we argue that (1) it is crucial to know the state of society prior to the implementation of justice processes so that change can be measured; (2) cultural values such as support for the rule of law are as likely to be causes of transitional justice processes as they are results; and (3) because much too little is known about the societal consequences of transitional justice processes, much more rigorous, quantitative analysis must be conducted.
Abstract: Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation’s highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences - Legal Realism and the Attitudinal Model - belief that the justices merely 'apply' the law - Mechanical Jurisprudence - is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court - the most unaccountable of all American political institutions - is nurtured by the view that judicial decision making is discretionless, mechanical, and technical, the sources of institutional legitimacy under the Attitudinal Model are less obvious. Here we posit - and demonstrate using a nationally representative sample - that the American people understand judicial decision making in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in Mechanical Jurisprudence is not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.
Abstract: This paper examines the real-time effects of various types of judicial campaign content, including informative, self-promoting advertising, on voter mobilization during the 2007 Pennsylvania judicial election. In an online experiment, subjects were randomly assigned to watch a video containing a form of campaign content, ranging from positive and self-promoting to negative and accusatory. The results show that subjects exposed to the informative, self-promoting ads voted at a higher rate than those in the other conditions. This relationship is mediated by knowledge gained about the candidates and perceived appropriateness of attacks in a judicial campaign. Conversely, there is no evidence for either mobilization or demobilization as a consequence of exposure to the negative campaign content.
Judicial Election, Voter Turnout, Mobilization, Advertising, Campaign Messages, Experiment
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