430667
0667FarganisPolitical Research Quarterly
PRQ65110.1177/106591291143
Do Reasons Matter? The Impact of
Opinion Content on Supreme
Court Legitimacy
Political Research Quarterly
65(1) 206­–216
© 2012 University of Utah
Reprints and permission:
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DOI: 10.1177/1065912911430667
http://prq.sagepub.com
Dion Farganis1
Abstract
Is Supreme Court legitimacy affected by the way justices explain their decisions to the public? Existing work shows a
link between legitimacy and case outcomes but often overlooks the impact of opinion content. Using a novel experimental
design, the author measures the effect of three different types of judicial arguments on public support for the Court.
The results suggest that the rationales used by justices in their opinions can affect institutional legitimacy, but to a lesser
degree than conventional wisdom suggests. Taken together with other recent legitimacy research, these findings have
important implications and set the stage for follow-up research.
Keywords
Supreme Court, public opinion, judicial decision-making, institutional legitimacy, judicial politics
What would have happened if the Supreme Court’s opinion
in Bush v. Gore had been based on polling data instead of
legal arguments? How might the public have reacted to
the decision in Brown v. Board of Education if the justices
had said that integration was “simply the right thing to
do,” rather than relying on constitutional provisions and
case law? Conventional wisdom certainly holds that neither
of these scenarios would have ended well for the Court.
Indeed, commentators have long maintained that there are
certain types of arguments that justices can legitimately use
to defend their rulings and certain types that they cannot
(Bobbitt 1982; Chemerinsky 2002; Marmor 2005; Wells
2007). Written opinions that rely on factors such as constitutional text and precedent are thought to help secure the
Court’s legitimacy; personal beliefs, political ideology,
and a host of other “extraconstitutional” justifications,
most observers contend, do not (Baker 2004; also see
Baird and Gangl 2006; Casey 1974).
But are these assumptions well founded? Do the ways
in which justices explain their decisions actually affect
the Court’s legitimacy? Previous studies have focused on
other factors affecting the Court’s institutional standing,
such as public response to specific decisions (Grosskopf
and Mondak 1998; Hoekstra and Segal 1996; Nicholson
and Howard 2003) or general perceptions of procedural
fairness (Baird and Gangl 2006; Casey 1974; Gibson
1989, 1991; Petrick 1968; Scheb and Lyons 2000, 2001;
Tyler and Rasinski 1991). However, the extent to which
legitimacy can be shaped by the actual arguments and
justifications in the Court’s opinions themselves remains
somewhat unclear (but see Hume 2006). Does the content
of the Court’s rulings—the rationales that justices provide to explain their votes—influence the Court’s institutional well-being? That is, when it comes to Supreme
Court legitimacy, do reasons matter?
To make headway toward answering these questions,
this article presents the results of an experimental study
using simulated Supreme Court rulings. The experiment
isolates the effect of opinion content on the Court’s perceived legitimacy by manipulating the reasoning used by
the justices—but not the outcome of the case—across
three treatment groups. That is, the study’s participants
all read and react to a case with the same holding, but in
one version the justices use conventional legalistic arguments to support their ruling, in another they rely on polling data, and in a third they advance a religious and moral
justification. Altering the content of the opinions in this
way should help establish whether individuals are in fact
affected by the kinds of justifications that the Court provides in its decisions—something that previous work in
this area has yet to determine.
1
Elon University, Elon, NC, USA
Corresponding Author:
Dion Farganis, Department of Political Science, Elon University,
Gray Pavilion, Elon, NC 27244
Email: [email protected]
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Farganis
Opinion Content, the Public,
and Supreme Court Legitimacy
The idea that opinion content might affect Supreme Court
legitimacy is derived primarily from two bodies of existing empirical research. The first comprises studies that
trace the impact of specific decisions (Grosskopf and
Mondak 1998; Hoekstra and Segal 1996; Mondak 1991),
including high-profile controversies such as Bush v. Gore
(Kritzer 2001; Gibson, Caldeira, and Spence 2003a,
2003b; Nicholson and Howard 2003), on the Court’s perceived legitimacy. Some of these investigations conclude
that the Court’s institutional standing is highly susceptible
to public backlash (Grosskopf and Mondak 1998),
whereas others find that the loyalty to the Court runs very
deep (Gibson, Caldeira, and Spence 2003a). Despite these
differences, however, these reports generally agree that
legitimacy is not an entirely static phenomenon. In other
words, these analyses establish the fact that the Court’s
legitimacy can be affected, to some extent at least, by the
actions of the justices.
The other relevant body of empirical work consists
explores legitimacy and public perceptions of the Court’s
fairness. These investigations are premised on the idea
that Americans believe that the Court is (or at least that it
should be) separate from politics and that it has a special
“mystique” because it functions as a guardian of the law
and the Constitution (Petrick 1968, 16; Hibbing and
Theiss-Morse 1995). As a result, when justices rely on
“legalistic” factors, such as precedent or original intent,
rather than “political” considerations, such as partisanship
or ideology, the Court will fare better in the eyes of the
public (Epstein and Knight 1998). Indeed, most studies
confirm that perceptions of neutrality and procedural
fairness do increase support for the Court and its decisions (Baird and Gangl 2006; Casey 1974; Scheb and
Lyons 2000, 2001; Tyler and Rasinski 1991). Scheb and
Lyons (2001), for example, report that a majority of
Americans surveyed want the Court to rely on legal considerations such as original intent and precedent. To be
sure, some investigations have downplayed the role of
procedural fairness, arguing that preexisting loyalty to the
Court is what actually drives compliance and cushions
the negative effects of disagreeable rulings (Gibson
1989, 1991). By and large, however, this body of work
presents solid evidence that “legalistic” reasoning makes
the public more likely to view the Court as a legitimate
decision-making authority.
Beyond this empirical work, additional support for the
proposed link between opinion content and legitimacy
comes from legal academics. Specifically, a wealth of
theoretical writings—most of which have their intellectual roots in the works of Hand (1958), Wechsler (1959),
and Bickel (1962)—postulate a direct connection between
the Court’s institutional well-being and the kinds of arguments that justices make in their written opinions. For
example, Bobbitt (1982, 6-7) contends that the justices
“must write arguments . . . within certain conventions” to
preserve the Court’s perceived legitimacy. More recently,
Wells (2007, 1024) alleges that when it comes to unpopular rulings, “so long as the reasons given are plausible, the
critique can do little damage to the Court's standing.”
Thus, while the public would accept a decision based on
the language of the First Amendment, the records from
the Constitutional Convention, or the holding in a prior
case, “it would be illegitimate for a Justice or a majority of
the Justices to write an opinion that says, ‘The Constitution
does not require or in any way justify our decision today
in this case, but we think we have reached the right result
and we are satisfied that this ruling is a good idea’”
(Baker 2004, 67; also see Bobbitt 1982, 6-7; Chemerinsky
2002, 2010; Wells 2007, 1042). In short, American constitutional theorists share the view of many political scientists about the relationship between arguments and
legitimacy.
Interestingly—and probably not coincidentally—these
assumptions about the impact of opinion content on the
Court’s standing have been echoed increasingly by the
justices themselves over the past half century. For instance,
in Bowers v. Hardwick (1986, 194), Justice Byron White
cautioned that the Court “comes nearest to illegitimacy”
when the justices base their rulings on factors other than
constitutional text. Similarly, in Planned Parenthood of
Southeastern Pennsylvania v. Casey (1992), the plurality
opinion offers repeated warnings about the effect on the
Court’s “legitimacy” of rulings that appear to the public to be
based on unprincipled arguments. These are just two examples of many: since the Court’s 1954 decision in Brown, in
fact, the justices have made seventy-one such references
to the Court’s institutional legitimacy, compared with just
nine in the 164 years up to that point.1 Thus, the alleged
link between opinion content and the Court’s legitimacy
increasingly finds support among the justices as well.
Taken together, this large body of empirical and theoretical work—along with the views of the justices themselves—points to the general hypothesis that the arguments
within the Court’s opinions will affect its legitimacy. More
precisely, arguments that appear to be “legalistic”—relying
on conventional legal and constitutional considerations—
are likely to generate greater public support than those that
do not. My primary hypothesis can therefore be summarized this way: perceived legitimacy levels will be
higher when the justices use conventional legal arguments to justify their rulings and will diminish the further the justices move away from those types of legalistic
arguments.
Before proceeding, it is important to address one final
consideration involving public opinion and the content of
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Political Research Quarterly 65(1)
Table 1. Types of Reasons Used in Simulated Case
Version of case
Opinion based on
Legalistic
Legal arguments
Poll results
Public opinion polls
Religion
Religious texts
Sample passage
“Consistent with our existing approach to cases in this area of law, therefore, we are
unable to afford the same heightened scrutiny to legislation that discriminates on
the basis of sexual orientation.”
“When, as is the case here, the nation’s collected wisdom is so overwhelmingly clear
and one-sided, this Court must fulfill its role as the public’s ally, not its enemy.”
“Particularly where the provisions of the Constitution provide no definitive answer
to the complicated moral questions that confront us today, our religious teachings
supply much needed guidance.”
the Court’s rulings. Specifically, while it may be true that
the average citizen has traditionally been inattentive to
judicial reasoning, there is reason to believe that this may
be changing. Access to analyses of judicial opinions has
never been greater. Websites devoted to the Court and its
decisions have proliferated over the past several years,
and discussions of judicial reasoning that were formerly
confined to law libraries are now part of the public
domain. Moreover, as scholars such as Chemerinsky
(2002) point out, the advent of the Internet has put full
Court opinions at the fingertips of almost every American.
Those reading an online newspaper article about a recent
decision, for example, can simply click over to the full
text of the ruling. In short, even though in the past the
public may have been “the least important part of the
immediate audience” for Supreme Court rulings (Wells
2007, 1032), today “that does not mean that the public is an unimportant audience for Court decisions”
(Chemerinsky 2002, 2030, emphasis added). As such, the
prospect that opinion content may affect legitimacy has
taken on a particular relevance of late.
Experimental Design and
Measures
To test the hypothesis that the reasoning of an opinion
can affect public support for the Court, I conducted an
experiment using a novel between-subjects design
involving three versions of a fictional Supreme Court
ruling. Specifically, in each version the Court upholds a
state ban on same-sex marriages, but the rationale that
the majority provides for its decision is altered. In the
first version the justices employ conventional legal and
constitutional arguments, such as adherence to constitutional text respect for past precedents (“legalistic” version). In the second version, the majority relies primarily
on recent public opinion polling data (“poll results” version). In the third version, the majority justices base their
holding almost exclusively on religious teachings and
passages from the Bible (“religion” version). Table 1
summarizes these three experimental conditions.2
The selection of these three types of arguments was
guided by existing theoretical and empirical work exploring Supreme Court decision making. Specifically, as discussed at length earlier, legalistic arguments—reliance
on constitutional text, the intent of the Framers, and
precedent—are generally assumed to be the least likely to
put the Court’s legitimacy at risk because they are perceived to be the most neutral and “value free” (Chemerinsky
2002, 2010; also see Baird 2001; Baird and Gangl 2006;
Scheb and Lyons 2000, 2001; Tyler and Mitchell 1994;
Wells 2007). By contrast, the use of public opinion polling data is theorized to be a less legitimate method of
interpretation. Scholars such as Marmor (2005, 161), for
example, suggest that such a decision “would undermine
one of the basic rationales for having a constitution in the
first place.” Likewise, as Justice Samuel Alito opined
during his Supreme Court confirmation hearing, “[T]he
legitimacy of the Court would be undermined in any case
if the Court made a decision based on its perception of
public opinion” (U.S. Congress 2006, 319). Finally,
explicit reliance on moral or religious preferences is
thought to generate serious legitimacy problems for the
Court. Influential constitutional theorists such as Bobbitt
(1982), for example, explicitly state that a justice’s religious views are plainly outside the bounds of legitimate
constitutional interpretation. Similarly, from within the
Court itself, charges against justices who use “moral intuition” instead of relying on “text and traditional practice”
are not uncommon (Planned Parenthood 1992, 1000).
Therefore, quoting from the Bible, according to this set of
assumptions at least, should generate the greatest decrease
in loyalty among the study’s participants.
The selection of the issue itself also involved careful
consideration. Same-sex marriage, gun control, and cell
phone texting regulations were all pretested using a separate group of respondents. My main selection criteria
were (1) an issue that would generate enough disagreement to enable measurement of changes it attitudes
toward the Court among those on both sides of the debate
and (2) a ruling that would be believable. Pretesting suggested that same-sex marriage was most likely to satisfy
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Farganis
these two criteria: roughly four out of five of these
respondents indicated they had strong views about samesex marriage, with supporters outnumbering opponents
by about two to one; moreover, despite a general awareness of the same-sex marriage issue, most respondents
did not know whether the Supreme Court had actually
ruled in this area or not, making it a prime candidate for
the study.3 At the same time, it should be noted that using
a “hot-button” issue like same-sex marriage could be a
liability to an experiment of this kind. Most notably,
strong preexisting views about an issue could drive attitudes toward the institution, making it difficult to determine whether changes in support for the Court are a result
of anger with the outcome of the case or dissatisfaction
the reasoning. Thus, it is important to control for agreement and disagreement with the outcome of the case
throughout the analysis to isolate the effects of changes
in reasoning.
The experiment was conducted in early 2007 at a large
research university. Experimental materials were randomly distributed to students enrolled in undergraduate
political science classes.4 Each set of materials contained
three items: a questionnaire regarding participants’ political views, one of three versions of the fictional case
described above, and a survey to measure respondents’
attitudes toward the Court after reading the case. In other
words, apart from the different versions of the case,
the materials given to all respondents were identical.
Volunteers were told that they were participating in a
study of political attitudes, and they were led to believe
that the simulated materials were real. The participation
rate was high: of the 389 sets of materials distributed, 368
were completed sufficiently for data collection.
The three simulated opinions were “delivered” via
either news articles about the rulings or excerpts from
the opinions themselves. As noted earlier, while most
Americans still rely on traditional news media for information about the Supreme Court, the Internet is increasing
the number of people who can read Supreme Court opinions firsthand (see, e.g., Chemerinsky 2002). Therefore,
even though the use of lifelike-looking excerpts is a novel
technique, it is now important to incorporate it into experimental studies of this kind.5 To that end, I provided half of
the participants with excerpts—or, more precisely, what
appeared to be excerpts—from a Supreme Court ruling.
The other half received news articles about the decision.
The three versions of the case were equally represented in
both the articles and the excerpts, and the six total sets
were randomly distributed. Great care was taken to capture the look and feel of authentic materials, including layout, typeface, writing style, and other design features that
helped increase their believability.6
Crucially, the excerpts and articles were written to correspond with each other. For example, the excerpt that
contains mostly legalistic reasoning lines up with an
article that emphasizes the legalistic reasoning in the
decision. To achieve this effect, the articles contain direct
quotes from the corresponding opinion as well as reaction quotes from pundits and legal experts. These reaction
quotes are designed to draw attention to the reasoning and
arguments employed by the justices, so that participants in
each group are clear about what type of reasoning is being
used. Moreover, to help ensure that each type of reasoning
is framed in a realistic way, the reaction quotes are quite
measured in the legalistic version and more intense and
polarized in the more controversial treatments.7
As outlined above, the key dependent variable for this
study is the Court’s legitimacy level. To measure legitimacy, I used a set of six questions designed to assess individual loyalty to the Court as an institution. My thinking
here follows a long line of studies showing that institutional loyalty is the most reliable indicator of legitimacy
(see esp. Caldeira and Gibson 1992; Gibson, Caldeira,
and Spence 2003a, 2003b). From this perspective, individuals who are loyal to the Court oppose making changes
to the Court’s power of judicial review or its other basic
functions—even when they disagree with its decisions.
This kind of loyalty is a good marker for institutional
legitimacy because it reflects “diffuse support” for the
Court (Easton 1965) or support that is “not contingent
upon satisfaction with the immediate outputs of the institution” (Gibson, Caldeira, and Spence 2003b, 537).
That is, when individuals view the Court as a legitimate
decision-making authority whose power should not be
changed or reduced, even when they object to its outputs,
the Court enjoys high levels of institutional legitimacy.
Accordingly, drawing on the approach utilized by
Caldeira and Gibson (1992), Gibson, Caldeira, and Spence
(2003a, 2003b), and others, the following six statements
were given to all respondents.8 Agreement or disagreement
with each statement is measured on an 8-point Likert-type
scale (1 = strongly disagree, 8 strongly agree). The
response that indicates loyalty is noted parenthetically.
1. If the U.S. Supreme Court started making a lot
of decisions like the one you just read, it might
be better to do away with the Supreme Court
altogether. (Disagree)
2. If the Supreme Court were to make a series of
decisions like the one you just read, Congress
should reduce the Court’s power. (Disagree)
3. If the Supreme Court were to make more decisions like the one you just read, the Constitution
should be rewritten to reduce or eliminate the
power of the Supreme Court. (Disagree)
4. If elected officials feel that the decision you just
read would be bad for the country, they should
come up with their own policies instead. (Disagree)
5. If the Supreme Court were to make a series
of decisions like the one you just read, people
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Political Research Quarterly 65(1)
Table 2. Institutional Loyalty to the U.S. Supreme Court
Legalistic
Loyal to the Court
%
Poll results
Religion
n
%
n
%
n
A. Respondents who agreed with the outcome of the case
Congress should reduce Court’s power (D)
92.3
Change Constitution to cut Court’s power (D)
88.5
Eliminate judicial review altogether (D)
84.6
Other branches should ignore some decisions (D)
91.7
Public should always defend Court’s power (A)
68.0
Government officials can ignore some rulings (D)
85.2
Overall institutional loyalty
91.7
26
26
26
24
25
27
24
82.4
88.2
94.1
81.8
87.9
90.9
90.9
34
34
34
33
33
33
33
78.1
75.8
84.8
81.8
67.7
90.9
78.8
32
33
33
33
31
33
33
B. Respondents who disagreed with the outcome of the case
Congress should reduce Court’s power
75.6
Change Constitution to cut Court’s power
81.3
Eliminate judicial review altogether
89.0
Other branches should ignore some decisions
82.0
Public should always defend Court’s power
53.9
Government officials can ignore some rulings
81.1
Overall institutional loyalty
79.1
90
91
91
89
91
90
90
64.8
87.9
85.7
70.3
51.6
81.3
74.7
91
91
91
91
91
91
91
48.9
82.8
78.5
65.9
45.1
85.0
63.4
92
93
93
91
93
93
93
Percentages reflect the portion of N who indicated loyalty to the Court by either agreeing (A) or disagreeing (D) with the statement. Loyalty for
each statement is indicated when response is on the “loyal” side of an 8-point Likert-type scale (> 4.5). Cronbach’s alpha coefficient for the sixitem scale was .78. See accompanying text for further explanation and full statements.
should still be willing to defend the Court’s
power. (Agree)
6. If a majority of Americans oppose the decision
you just read, it should be ignored by the other
branches of government. (Disagree)
Mean response scores for each individual in the treatment groups and control group were tabulated. A higher
score reflects a higher level of diffuse support and institutional legitimacy. An additional measurement was
obtained by collapsing the loyalty scores into two groups,
“loyal” and “not loyal.” A response was classified as
loyal if it fell on the loyal side of the 8-point scale.9 For
the statements where loyalty was indicated by disagreement, an answer between 1 and 4 was coded as loyal; for
the statement where loyalty was indicated by agreement,
an answer between 5 and 8 was coded as loyal.
Results
Table 2 shows the percentage of “loyal” versus “not
loyal” responses within each treatment group. Part A of
the table covers those who agree with the holding of the
case; part B is for those who disagree.10 As shown there,
while loyalty is quite high among all respondents—a
finding consistent with past reports (see, e.g., Caldeira
and Gibson 1992)—it decreases as the type of reasoning
moves further away from conventional legalistic arguments. This is true for both those who agree with the
holding and those who do not, although the loyalty
percentages among the “agreers” are significantly higher
across the board. Responses to individual items mirror this
general trend: loyalty among those in the legalistic group
is generally higher than those in the other two groups, and
loyalty among the agreers is higher than among the disagreers for each statement. Overall, these percentages
point to the following: those who agree with the outcome
of a case will be more loyal to the court, but controversial
reasoning exerts a downward pressure on loyalty, even
among those who agree with the holding.
To explore these results in greater detail, mean loyalty
scores (on a 1–8 scale) were generated. As Table 3 illustrates, these more precise loyalty numbers mimic the percentage data discussed above. That is, they decrease as
the reasoning gets more controversial. Those who read
the legalistic version recorded the highest loyalty score
(6.49), those who read the poll results version had a
slightly lower loyalty score (6.39), and those who read
the religion version recorded the lowest score (6.02).
Note that the changes between all the possible pairings
are statistically significant, except for the difference
between the legalistic version and the poll results version.
Thus, it appears that reasons do have an effect on loyalty,
although not always as much as predicted.
Table 3 also highlights the differences in loyalty among
those who agree with the holding of the case and those who
do not. Here again, loyalty moves in the predicted direction
overall. Interestingly, however, the gap between outcome
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Farganis
Table 3. Changes in Institutional Loyalty to the U.S. Supreme Court
Treatment group
Legalistic
Poll results
Poll results
Religion
Legalistic
Religion
Legalistic, agreers
Legalistic, disagreers
Poll results, agreers
Poll results, disagreers
Religion, agreers
Religion, disagreers
N
t-test M
SD
116
125
125
126
116
126
26
90
34
91
33
93
6.46
6.39
6.39
6.02
6.46
6.02
6.99
6.30
6.97
6.14
6.90
5.76
1.10
1.05
1.05
1.18
1.10
1.18
0.85
1.12
0.71
1.07
1.07
1.08
Change
t
p
−0.07
−0.514
.608
−0.37
−2.65
.008
−0.44
−3.03
.003
−0.69
−2.97
.004
−0.83
−4.39
.000
−1.14
−4.83
.000
Cohen’s d
0.07
0.34
0.39
0.56
0.79
0.87
“Agreers” agreed with the outcome of the case; “disagreers” disagreed with the outcome. Mean is based on responses from treatment group
respondents to loyalty statements on an 8-point Likert-type scale. Mean is from 1.00 to 8.00; a higher number indicates more loyalty. For t-test
results, p value is based on a two-tailed test. For Cohen’s d, which estimates effect size (ES), the rule of thumb is d > 0.2 = small ES; d > 0.5 =
medium ES; d > 0.8 = large ES (Cohen 1988).
“agreers” and “disagreers” grows as the type of argument
becomes more controversial. That is, the difference in loyalty between agreers and disagreers in the legalistic group
was the smallest of the three (0.69), the difference among
the poll results respondents was in the middle (0.83), and
the difference within the religion group was the largest
(1.14). In other words, controversial reasons appear to generate greater polarization between the opposing sides of the
same-sex marriage issue.
Thus far, we have seen preliminary support for the
hypothesis that conventional legalistic arguments engender greater institutional loyalty than controversial ones.
Next, I control for other factors that might be influencing
these changes by running an ordinary least squares regression where institutional loyalty is the dependent variable.
The main independent variables are the treatment conditions that are expected to have the greatest effect on loyalty: exposure to the disagreeable renderings of the case
and disagreement with the holding. To test the alternative
hypothesis that approval of the Court’s performance is
linked to legitimacy (see, e.g., Mondak 1991), I include
approval of the Court (measured prior to reading the case)
as an independent variable. I also include an item on
strength of religious beliefs, based on data collected during the demographics portion of the treatment survey.
This is an important variable to track because if it is significant, it would suggest that one of the reasons that the
Court sustains its loyal followers despite this controversial rationale is that many individuals actually think the
justices’ reliance on the Bible is a reason to lend support
to the Court, not withdraw it. The other controls consist
of preexisting attitudes toward several current political
issues unrelated to the case, none of which is predicted to
have an effect on loyalty, but all of which should help test
the hypothesis. Because I am also interested in isolating
how these different arguments affect those who disagree
with the outcome of the case, I run a second regression
that includes only those respondents. Note that in the second regression, disagreement with the outcome is
removed as an independent variable. Otherwise the independent variables for both regressions are the same.11
The results support the hypothesis. As shown in Table 4,
the Religion version is the most reliable predictor of a
decrease in loyalty. Respondents who read this version are
more likely to have diminished loyalty to the Court, even
controlling for agreement with the outcome, political ideology, and approval of the Court. Meanwhile, among those
who disagree with the outcome of the case, exposure to the
religion version has an even larger influence on loyalty.
Interestingly, however, the poll results version does not perform as expected among either the whole population or the
disagreers. Respondents who read the poll results version
are not significantly more likely to offer negative assessments of the Court than those who do not.
Three other results warrant a brief comment. The first
is the performance of the political ideology variable,
which is significant at the .01 level and has a positive
coefficient, suggesting that conservative individuals are
more likely to be loyal to the Court after reading the simulated case. However, in the second regression, where
agreement with the decision is removed as a variable,
political ideology drops out as a significant predictor of
loyalty. In other words, among those who disagree with
the holding of a case, political ideology seems to play less
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Political Research Quarterly 65(1)
Table 4. Factors Affecting Loyalty to the U.S. Supreme Court
All respondents
Independent variable
Poll results version
Religion version
Agreement with decision
Political ideology
Approval of government
Approval of Court
Approval of Bush
Favor gun control
Favor higher taxes on rich
Favor legalization of drugs
Favor war in Iraq
Gender
Strength of religious beliefs
Read article not excerpt
Prior knowledge of case
Constant
Adjusted R2
N
Outcome disagreers
B
β
B
−0.141
(0.134)
−0.528***
(0.134)
0.312***
(0.088)
0.130**
(0.049)
−0.217
(0.111)
−0.018
(0.089)
−0.108
(0.092)
0.110
(0.072)
−0.124
(0.091)
−0.079
(0.078)
0.026
(0.100)
−0.215*
(0.104)
0.041
(0.100)
−0.024
(0.110)
−0.069
(0.065)
7.035
(0.702)
.201
368
−.059
−0.190
(0.166)
−0.614***
(0.163)
—
−.222
.254
.179
−.123
−.010
−.081
.080
−.080
−.053
.017
−.106
.029
−.011
−.053
0.107
(0.058)
−0.228
(0.129)
0.039
(0.111)
−0.173
(0.110)
0.071
(0.090)
−0.106
(0.116)
−0.025
(0.099)
0.045
(0.123)
−0.226
(0.124)
0.273
(0.138)
0.058
(0.137)
−0.095
(0.080)
7.995
(0.874)
.094
275
β
−.080
−.264
—
.140
−.124
.022
−.119
.051
−.059
−.016
.027
−.115
.135
.026
−.072
Ordinary least squares regression with unstandardized (B) and standardized (β) coefficients and standard errors in parentheses. The first column
includes all treatment group respondents; the second considers only those respondents who disagree with the ruling in the simulated case. In
both regressions, the dependent variable is loyalty to the Court as reflected by the mean loyalty score, where a higher number indicates more
loyalty. The independent variables for both regressions are the same with one exception: in the second regression, agreement with the decision is
removed because the sample is composed of only respondents who disagree with the decision. See accompanying text for further details.
*p < .05. **p < .01. ***p < .001.
of a role in shaping their view of the Court. This may
signal that agreement and disagreement are not just two
sides of the same coin; different factors may shape loyalty attitudes among those who agree with the outcome of
a case and those who disagree with it. The second notable
variable is gender. The negative coefficient would seem
to suggest that women are slightly more inclined to withdraw their loyalty to the Court. Absent a strong theoretical explanation, however, this effect needs to be tested
more thoroughly before it can be relied on as a predictor
of changes in loyalty. Finally, note that approval of the
Court’s job performance is actually the weakest of all of
the independent variables in both regressions. This demonstrates there is a disconnect between approval attitudes
and loyalty to the Court’s basic institutional arrangements; an individual can disapprove of the job that the
Court is doing but still maintain a high level of institutional loyalty. This supports the claim made by Caldeira
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213
Farganis
and Gibson (1992) and others that the connection between
approval and diffuse support (i.e., legitimacy) is tenuous
at best.
Discussion
Over the past fifty years, “legitimacy” has played an
increasingly prominent role in discussions about the
Supreme Court. Contemporary political scientists, legal
academics, popular commentators, elected officials, and
even the justices themselves routinely voice concerns
about the impact that the Court’s decisions can have on
its legitimacy. Although some differences exist, the general consensus appears to be that the Court’s success as a
policy maker is at least somewhat contingent on the public’s perception that it is a legitimate authority and that
disagreeable decisions can diminish this vital resource.
As just one example of this, the decision in Bush v. Gore
prompted hundreds of law professors to proclaim in a
full-page ad in the New York Times that “the Supreme
Court has tarnished its own legitimacy” (New York Times
2001, A7). When it comes to questions of judicial power
and accountability in the United States, legitimacy is the
coin of the realm.
In light of this, it is critically important that judicial
scholars continue to investigate the Court’s legitimacy and
the factors that affect it. If the justices depend on the
Court’s perceived legitimacy as a decision-making authority, and if those perceptions can change, then ultimately the
Court’s power is in some way tethered to public opinion
and popular support. Determining precisely what kinds of
things cause those perceptions of legitimacy to rise and fall
will help us understand the reach of the Court’s power and
the degree to which the justices are (or are not) constrained
by the public’s response to their rulings.
The goal of this study was to contribute to this important conversation by exploring a largely overlooked part
of the legitimacy story: the relationship among public
opinion, the kinds of reasons justices use to defend their
rulings, and the Court’s institutional well-being. Unlike
existing work in this area, which focuses on the effects of
case outcomes, the aim here was to shift attention to the
content of those judicial opinions. Do people pay attention to the types of reasoning that justices use? Does that
reasoning affect how they think about the Court?
The answer to both of these questions appears to be a
qualified yes. Broadly speaking, the results suggest that
the Court’s perceived legitimacy level is highest when the
justices used legalistic arguments and lowest when they
rely on extraconstitutional justifications. More precisely,
we saw that loyalty to the Court was nearly 15 percentage
points higher among those who read a ruling based on
conventional methods of interpretation than those who
read one based on passages from Bible—hardly a trivial
difference. This trend held up even when I controlled for
agreement with the outcome of the case, further suggesting that people do indeed pay attention to the type of
arguments justices make. Overall, then, it seems safe to
say that the Court’s perceived legitimacy can be affected
by the reasons that the justices give in defense of their ruling. This lends empirical support to a view of the public–
Court dynamic that, until now, had been largely theoretical
and speculative.
At the same time, the data also point toward a somewhat more complex set of conclusions about the Court
and its legitimacy. Most notably, while it is clear that
rationales do affect legitimacy, they may not have quite
the impact that many Court observers would expect. For
instance, even among those who disagreed with the outcome of the case and the fact that the Court had reached
its decision based on religious grounds, there was still
majority loyalty toward the Court. Also, contrary to what
some theorists assume (see, e.g., Marmor 2005), a decision based on public opinion polling failed to move the
meter, even among those who disagreed with the holding.
Apparently this sort of reasoning is not as controversial,
or as damaging, as conventional wisdom might suggest.
All of this might, of course, change if the Court were to
make a series of similar decisions. But the survey did
direct the respondents to think of the opinion as part of a
larger trend in decision making, and by and large these
individuals still showed strong opposition to making fundamental institutional changes to the federal judiciary.
Taken together with recent findings in a number of
other recent analyses (e.g., Caldeira and Gibson 1992;
Gibson, Caldeira, and Baird 1998; Gibson, Caldeira, and
Spence 2003a, 2003b; Nicholson and Howard 2003), the
results of this study lend some support to the idea that
the Court’s institutional legitimacy is less “fragile” than
some may fear (Conkle 1985). This is an important possibility that needs to be further investigated. Clearly, if
justices can venture further outside public expectations
than traditionally thought—both in terms of the holding
of the case, as the Gibson and Caldeira work shows,
and in terms of the reasoning, as my study suggests—
then we may need to recalibrate our view of the constraints under which the Court operates. None of this is
to suggest that Supreme Court is “bulletproof,” or that the
justices can be completely unconcerned with public reaction to their opinions. But the degree to which they need
to guard against legitimacy loss may be overestimated by
both scholars and the justices themselves—a prospect
with potentially profound implications in the arena of
judicial power and democratic accountability.
Looking forward, researchers seeking to conduct
follow-up studies that employ the experimental design utilized here might want to consider the following refinements
and variations. First, a panel study where individuals read
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Political Research Quarterly 65(1)
a series of hypothetical opinions over a period of time
would allow for a more reliable measurement of sustained disagreement. Second, it would be wise to experiment with less salient or controversial issues. As noted
earlier, same-sex marriage was chosen here because it
was likely to generate disagreement. But a less divisive
issue might allow for even greater isolation of the effects
of reasoning (separate from feelings about the issue itself)
on support for the Court. Further variation in the types of
rationale used in the hypothetical rulings would also be
profitable. For example, are there measurable changes
in loyalty if justices explicitly use their personal policy preferences or ideology to justify a case outcome?
Alternatively, is legitimacy affected when a justice relies
on the original meaning of a constitutional provision
instead of using a more pragmatic balancing approach?
Last, while the six-item loyalty test worked well, two of
the statements—statements 4 and 6—may not have been
sufficiently different from each other. In most of the
groups, these two items produced almost identical results,
suggesting that there might be room for a different sixth
question in subsequent studies.
Overall, however, the message from the results of this
study is clear: reasons matter, but not as much as some
might think. Therefore, justices who trim their rhetorical
sails because they are concerned about public backlash
may sometimes do this unnecessarily. Loyalty to the
Court, while not entirely static, runs deep. Why the justices seem to be unaware of this remains something of a
mystery.
Acknowledgments
An earlier version of this article was presented at the 2008
Midwest Political Science Association annual meeting in Chicago.
I thank Timothy R. Johnson, Joanne Miller, Michael Parkin,
Gordon Silverstein, Justin Wedeking, and several anonymous
reviewers for their feedback.
Declaration of Conflicting Interests
The author(s) declared no potential conflicts of interest with
respect to the research, authorship, and/or publication of this
article.
Funding
The author(s) received no financial support for the research,
authorship, and/or publication of this article.
Notes
1. Results generated from a LexisNexis search for legitimacy
(N = 17,255) and a subsequent content analysis of all of
those hits. Search conducted on April 10, 2009.
2. In reality, a written opinion contains multiple types of reasons and rationales. Even the most devout adherents to a
particular method of constitutional interpretation—Justice
Hugo Black and his commitment to plain-meaning textualism is probably the most well-known example—call on
different types of arguments to defend their votes. Here,
however, my goal was to isolate the effect of three different
kinds of reasoning. Thus, I chose to make each treatment
material as “pure” as possible.
3. Posttesting analysis revealed that more than four in five
respondents claimed prior knowledge of the case, suggesting that the materials were in fact believable.
4. Questions have been raised in the past about using college
students as respondents (Peterson 2001). However, this is a
technique that has been used successfully a number of
times in prior studies of Supreme Court legitimacy (see,
e.g., Baird and Gangl 2006; Mondak 1991).
5. A third method would be to show participants television
news reports, but that approach was outside the scope of
this study.
6. The simulated articles and excerpts can be found in the
supplementary materials at http://prq.sagepub.com/
supplemental/.
7. There was no significant difference between the results generated by excerpts and articles within the same version of the
case. Accordingly, no distinction is made henceforth between
the results generated by the articles and the excerpts.
8. Although I adopted the general approach used by Gibson
and his colleagues, the statements themselves are loosely
based on (but not identical to) the statements used in those
prior reports. I followed suggestions for improvements to
those statements found in Gibson, Caldeira, and Spence
(2003a).
9. For five of the six statements, a lower number indicates
greater loyalty. Therefore, to produce a more intuitively
satisfying result, where a higher number equals more loyalty for each item, I inverted the score for those five items
(i.e., a 1 became an 8, a 2 became a 7, etc.).
10. Polling consistently shows that support for same-sex marriage is higher among younger Americans than it is in the
general population (Gallup 2009). Likewise, a majority of
the respondents in my study indicated support for same-sex
marriage rights prior to reading the case. The promarriage
side is therefore overrepresented, making it more difficult
to generalize from the sample as a whole. To compensate
for this, data for two groups (agreers and disagreers) are
reported separately at each stage in the analysis.
11.The complete list of independent variables (and their
ranges) is as follows: read poll results version (0 = those
who did not read, 1 = those who read); read religion version
(0 = those who did not read, 1 = those who read); agreed
with the decision (1 to 4, with 1 = strongly disagree and 4 =
strongly agree); political ideology (1 to 7, with 1 = very
liberal and 7 = very conservative); approval of the job government is doing, approval of the job the Supreme Court is
doing, and approval of the job President Bush is doing (1 to
4, with 1 = strongly disapprove and 4 = strongly approve);
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Farganis
favor stricter gun control, favor higher taxes on the rich,
favor the legalization of drugs, and favor the war in Iraq (1
to 4, with 1 = strongly oppose and 4 = strongly favor); gender (0 = female, 1 = male); strength of religious beliefs (1 to
7, with 1 = not religious at all and 7 = strongly religious).
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