Knowing About Courts

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.

Keywords: Public Opinion Toward Courts, Political Knowledge, Positivity Theory

JEL Classification: K40