In Black and Blue, James L. Gibson and Michael J. Nelson address a critical gap in our understanding of judicial legitimacy in the United States. Using accessible methodology and established measures, Gibson and Nelson find evidence that racial bias in policing shapes the way that Black Americans assess their legal institutions. Drawing on theories from the race and ethnic politics literature, the authors present a compelling story about the mechanisms at play. The book’s key findings bring important nuance to our understanding of how legal institutions in the United States build and maintain reserves of goodwill. Black and Blue boldly confronts the limitations of our existing theories about law and justice, which have been built around samples and assumptions that are not reflective of the lived experiences of Black Americans.
The main goal of Black and Blue is to revisit positivity theory in light of this oversight. Positivity theory connects a person’s knowledge of the legal system with the durable willingness to accept courts as legitimate institutions. The proposition that more knowledge of legal institutions leads to greater diffuse support of those institutions is well documented in previous work by the authors and their colleagues (e.g., James L. Gibson and Gregory A. Caldeira, Citizens, Courts, and Confirmations, 2009; James L. Gibson and Michael J. Nelson, “Is the U.S. Supreme Court’s Legitimacy Grounded in Performance Satisfaction and Ideology?” American Journal of Political Science 59[1], 2015). The authors concede in the preface that their own prior work on this topic was based on findings derived from largely white survey samples. As a result, our understanding of institutional legitimacy has been skewed toward the perspective of people who have, in general, enjoyed a privileged relationship with the legal system.
The authors report that the project was motivated by an unexplored finding from an earlier unpublished manuscript. In that study, Black college student respondents did not tend to ascribe the same positive valence to judicial symbols as white students did. In the first chapter of Black and Blue, Gibson and Nelson build on this finding, arguing that positivity theory might not operate in the same way for Black Americans as it does for their white counterparts. Here, they draw on a key insight from Mark Peffley and Jon Hurwitz’s (2010) Justice in America, which is that racial inequities shape the underlying perception among Black people in the United States that the criminal justice system is unfair. Gibson and Nelson posit that these differences will be expressed in their key dependent variables, which are measures of the perceived institutional legitimacy of the US Supreme Court and of the legal system more broadly.
The authors identify a number of factors to help explain and contextualize the presence of this kind of systematic distrust of the legal system. They consider the effect of negative personal experiences with police, as well as the negative experiences of friends and family. They also hypothesize that a respondent’s sense of group identity and linked fate may condition the impact of these direct and vicarious negative experiences with law enforcement. In the chapters that follow, the authors address the various hypotheses that stem from this discussion. As a preliminary step, they establish in chapter 2 that, indeed, Black Americans demonstrate less support for the US Supreme Court than do white Americans. Chapter 3 sets up the argument that group identity and linked fate will condition the effects of negative experiences on legitimacy scores. There, they find that linked fate is a function of negative experiences with police, but both are uncorrelated with the strength of respondents’ attachments to their racial group.
The remaining substantive chapters of the book focus on predicting the various measures of institutional legitimacy. In chapter 4, Gibson and Nelson model these concepts as a function of respondent experiences with police and their reported group identity and sense of linked fate. Here, the authors find that experiences with police and a sense of linked fate drive much of the intraracial differences in support for the legal system overall. They also report the “startling finding” (p. 89) that more knowledge of the Supreme Court leads to a decrease in diffuse support for the institution, which is the opposite of what positivity theory would predict.
Chapters 5 and 6 take up the possibility that legal symbols are negatively valenced for Black Americans and may act as a mechanism to explain the inapplicability of positivity theory to this group. They replicate a survey experiment from prior work (James Gibson, Milton Lodge, and Benjamin Woodson, “Losing, but Accepting,” Law & Society Review 48[4], 2014) as a test of the role of legal symbols in boosting perceived institutional legitimacy in the face of disappointing judicial outcomes. The vignettes here are intended “not to prime racial considerations” (102 n14), which helps isolate the hypothesized causal mechanism. These chapters focus solely on diffuse support for the US Supreme Court.
The relationships uncovered in these chapters are complex, underscoring the authors’ contention (which one hopes is self-evident) that “Black people vary” (p. 124). Group attachments condition the effect of negative experiences with police on perceptions of US Supreme Court legitimacy. Those with lower levels of group attachment are more likely to demonstrate a negative effect of exposure to legal symbols when they have had more negative experiences with police. For those who are particularly disappointed with the judicial decision presented in the vignette, exposure to judicial symbols leads to a larger decrease in their level of support for the Supreme Court.
Understandably, many of the authors’ conclusions are tentative, particularly when it comes to the meaning of their empirical findings in terms of existing theories derived from the race and ethnic politics literature. The policy feedback literature may help contextualize the critically important findings about the way symbols prime different reactions by respondent race. For example, Elizabeth Maltby (“The Political Origins of Racial Inequality,” Political Research Quarterly, 70[3], 2017) shows how racially skewed enforcement in a community affects members of that community differently based on race. Its effect seems to be particularly acute when the biased enforcement involves harassing behavior on the part of the police (see Amy E. Lerman and Velsa Weaver, “Staying out of Sight?” Annals of the American Academy of Political and Social Science, 651[1], 2014). Insights from these studies of community-level policy impacts may help untangle the conditional effects involving direct and vicarious negative experience with police.
In what is perhaps an attempt not to extrapolate beyond their analyses, the authors provide only a limited discussion of the implications of their findings for the Supreme Court’s future. I was left wanting more here, particularly as it relates to their stated interest in pursuing “strategies for reducing the gap” (p. 175) in assessments of the legal system. However, this book invites the rest of the field to continue this conversation. We should heed this call to interrogate our research for the prioritization of privileged perspectives, following the lead that Gibson and Nelson provide in this important and timely book.
