How Do Lower Federal Courts Attain Instiututuional Legitimacy When They are Largely Unknown to the Public?

Abstract

Political institutions must have some level of public support in order to operate effectively, and this is especially true in a democratic regime (Baum 2003; Carp & Stidham 2001, 2004; Franklin & Kosaki 1995; Marshall 1989). The courts are especially dependent upon the public viewing their actions as legitimate, as they are unelected and thereby unaccountable to the public through democratic mechanisms. As Caldeira and Gibson explain in reference to the U.S. Supreme Court, “The Court lacks an electoral connection to provide legitimacy, is sometimes obliged to stand against the winds of public opinion, operates in an environment often intolerant of those in need of defense and has none of the standard political levers over people and institutions” (1992: 635). Courts therefore rely upon the public viewing their actions as legitimate in order to hand down decisions and obtain compliance with them (Gibson, Caldeira & Spence 2005). This support becomes even more important when a case concerns a potentially controversial issue: courts need the public to see their decisions as legitimate such that they can hand down divisive decisions without fear of a public backlash. “Institutions with adequate legitimacy find that their decisions, even their unpopular decisions, are accepted by their constituency and consequently that compliance is more likely (Caldeira and Gibson 1995, 357). American courts thus rely upon public support to be able to function properly. In addition, the United States is said to be governed by the rule of law, such that all are equal before the law, that law is above men (Ingram 1985), and that judges are charged with both applying the rule of law and defending it. The courts’ need for public support thus grows when we recognize that, in order for the rule of law to function properly in America, citizens must have confidence in the institution designed to protect it (Nardin 2001). For, if this confidence lessens, citizens may not utilize the legal system (Roberts & Stalans 1997) or comply with its rulings (Murphy & Tanenhaus 1968; Tyler 1990; Tyler & Rasinski 1991). We therefore need to understand the degree to which the public has confidence in the courts and views their actions and decisions as legitimate.