Elected officials on the losing side of Supreme Court decisions may want to curb the Court and make it more accountable to the other branches of government, but many assume that the electoral connection dissuades elites from attacking the Court because of its broad public support. Is there evidence that ordinary Americans are the true guardians of judicial independence?
Many scholars argue that Americans view the Court as legitimate and maintain strong loyalty toward it. Court support is thought to be driven by legal symbolism and perceptions of procedural fairness (i.e., support is process based). Existing research suggests that the public views the Court as legitimate, that there exists a weak correlation between support for Court decisions and its perceived legitimacy, and that exposure to the Court (and associated legal symbols) correlates with support for the Court. Democratic values, perceptions of procedural fairness, and attentiveness to the Court all positively correlate with perceptions of legitimacy.
In their recent book, Curbing the Court, Brandon L. Bartels and Christopher D. Johnston challenge this dominant paradigm. Based on “three general lessons” from the field of political psychology, they argue that it is unrealistic for members of the public to “support the Court for its own sake” (p. 12) when “it is not in their narrow political interests to do so” (p. 25). That is, they understand public support for the Court to be policy and not process oriented. Bartels and Johnston’s findings are not necessarily groundbreaking; there is a growing literature in support of a policy-based model of public support. Yet, “the policy-based approach lacks a strong conceptual and theoretical foundation and thus stands, at present, as a series of loosely connected empirical results.” Accordingly, the overarching purpose of their book is to provide “a set of robust theoretical, conceptual, and empirical foundations for the policy-based approach to understanding Court-curbing in the mass public” (p. 18). The book goes a long way toward accomplishing these goals.
In chapters 1 and 2, Bartels and Johnston explain their policy-based theory of public support and place their arguments in a broad scholarly context. In chapters 3–7 they find empirical support for their policy-based theory using cross-sectional, panel, and experimental data. In chapter 8, they conclude. Based on compelling theory and convincing evidence, Bartels and Johnston’s policy-based view of Supreme Court legitimacy will become a major competitor to the currently popular process-based understanding of public support for the Court.
Importantly, Bartels and Johnston do concede that citizens want an independent judiciary that resolves disputes in a fair, principled, and unbiased manner. Then why does the public support attacks against the Court? Bartels and Johnston argue that perceptions of procedural fairness are motivated. People perceive agreeable decisions to be fair and legalistic, while they perceive disagreeable ones to be unfair and political. Motivated reasoning allows people to justify their attacks on the Court in response to disagreeable decisions.
Bartels and Johnston emphasize a need for conceptual reorientations in the study of Supreme Court legitimacy. Their criticisms apply to proponents of both process- and policy-based theories. For example, scholars need to be more careful and deliberate in how they measure legitimacy. Measures of institutional legitimacy (or diffuse support or institutional loyalty) commonly “average over items tapping diverse concepts such as procedural perceptions … and opposition to Court-curbing” (p. 21). The authors find this problematic for good reason: “from the process-based perspective, [procedural] perceptions are an important influence on [legitimacy], while from the policy-based perspective they are an endogenous rationalization” (p. 246).
Accordingly, Bartels and Johnston use measures of opposition toward Court-curbing to construct their primary dependent variable and avoid incorporating measures related to procedural fairness and trust in the Court. Providing even more conceptual clarification, they point out that Court-curbing alone is an insufficient indicator of legitimacy. That is because opposition to Court-curbing does not necessarily measure perceived legitimacy when the Court is making decisions with which there is policy agreement. Scholars can understand Supreme Court legitimacy only by analyzing public views in the context of disagreement with Court decisions.
To be fair to previous work, however, we should remember that measures of perceived legitimacy have been derived from questions that present individuals with an institution acting disagreeably, at least democratically so. For example, a commonly used question asks respondents to evaluate the following statement: “If the Supreme Court started making a lot of decisions that most people disagree with, it might be better to do away with the Supreme Court altogether.” Note that respondents indicate their willingness to curb the Court when it acts in a counter-majoritarian fashion. Many questions used to measure diffuse support (see Table 3.2, pp. 73–75) refer to an undemocratic Court.
In other words, the modal approach to studying the Court focuses on disagreeable Court decisions from an institutional perspective. This makes sense if we think that diffuse support for the Court is threatened by counter-majoritarian behavior, which seems to be the original catalyst for studies of Supreme Court legitimacy. Otherwise—if the Court is majoritarian—then it need not be concerned with Court-curbing and non-implementation from other majoritarian branches of government. Evidence suggests that the Court is indeed majoritarian (e.g., see Matthew E. K. Hall and Joseph Daniel Ura, “Judicial Majoritarianism,” Journal of Politics, 2015).
Perhaps, as Bartels and Johnston’s argument implies, the Court should be concerned with individual-level disagreement with its decisions and not simply with whether it is acting in a counter-majoritarian manner. Even so, using majoritarian-centric questions to study the impact of individually disagreeable decisions raises concerns of measurement validity. Perhaps scholars can simply adjust existing measures. For example, the survey question referenced earlier could begin with this phrase: “If the Supreme Court started making a lot of decisions that you disagree with…” Otherwise, it is challenging to understand why individual disagreement with a decision leads people to be more likely to support attacks on an undemocratic Court.
Although Bartels and Johnston demonstrate a positive effect of policy disagreement on support for Court-curbing, they also provide compelling evidence that belief in democratic norms and exposure to the Court reduce support for attacks on the Court (see, e.g., Figure 4.4, p. 107). Many datasets employed in the text did not include measures of support for democratic norms, and exposure to the Court was usually measured indirectly through “political engagement.” Future research will need to consider both process- and policy-based factors when evaluating support for the Court and compare both theories using more precise measures.
Bartels and Johnston’s analysis of the effects of partisan polarization was among the most intriguing (chapter 6). They found that partisan polarization increases both narrowly targeted and broadly targeted Court-curbing (this differentiation itself is an important contribution). Future research should integrate these findings with research on the intermediary roles of political elites and the news media to understand more fully why public support for the Court appears to be in decline.
With a newly solidified conservative majority on the Supreme Court, a strongly politicized citizenry, and the revealed willingness of political elites to attack the Court, it has become crucial to understand the process- and policy-based foundations of Supreme Court legitimacy. In Curbing the Court, Bartels and Johnston mark the path forward with an impressive array of theoretical, conceptual, and empirical insights.
