Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Gibson, James L.; Caldeira, Gregory A.

doi:10.1111/j.1540-5893.2011.00432.x

Cited by 128 publications

(76 citation statements)

References 40 publications

(44 reference statements)

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“…The justices' silence stands in stark contrast to the lengths that they take to explain their decisions on the merits. Written opinions are considered to be important because they serve as sources of law for lower courts to apply, but more than this, they serve to enhance the Court's legitimacy by cultivating a perception that Supreme Court justices are principled decision makers (Gibson and Caldeira , ). Even when their behavior is motivated by policy, the justices can build confidence in the institution by offering reasons for their decisions that can withstand public scrutiny.…”

Section: Resultsmentioning

confidence: 99%

“…Justices who decline to recuse themselves, despite committing ethical violations, risk damaging the Court's legitimacy by undermining public confidence in the integrity of the proceedings. Research has established a connection between the Supreme Court's legitimacy and the public's perception that the justices are principled decision makers (Gibson and Caldeira , ). This perception might be undermined if improper recusal behavior makes the justices appear biased, particularly if the justices routinely disregard ethical guidelines .…”

Section: Recusals and Judicial Strategymentioning

confidence: 99%

“…It is true that the legitimacy of the Supreme Court has proven to be resilient, withstanding even controversial holdings such as Bush v. Gore (Gibson, Caldeira, and Spence ). However, research also indicates that “legitimacy seems to flow from the view that discretion is being exercised in a principled, rather than strategic, way” (Gibson and Caldeira : 213). The implication of this research is that, unless the Court is “bullet proof” (Farganis ), legitimacy would be damaged if the justices were to engage regularly in unprincipled behavior.…”

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confidence: 99%

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Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court

Hume

2014

Law Soc Rev

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When are U.S. Supreme Court justices more likely to recuse themselves from cases? This article proposes a strategic model of recusal behavior, hypothesizing that the justices balance statutory guidelines concerning recusals against other policy and institutional goals. Using data from the Supreme Court Database, I find evidence that recusal behavior is influenced by a combination of statutory, policy, and institutional considerations. Consistent with statutory explanations, which emphasize the elimination of bias or its appearance, justices are more likely to recuse themselves from cases when business interests are before the Court, when they have served for shorter terms, and when they have previously acted as Solicitor General. However, I also find that the justices are less likely to recuse themselves when cases are likely to be close or when the justices' policy goals are likely to be advanced by participating. These findings suggest that while the justices do follow statutory recusal guidelines, they also have other institutional and policy incentives that lead them to participate in cases despite their conflicts of interest.

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Section: Resultsmentioning

confidence: 99%

Section: Recusals and Judicial Strategymentioning

confidence: 99%

mentioning

confidence: 99%

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Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court

Hume

2014

Law Soc Rev

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“…5 This suggests that the probability of an override is increasing in the ideological distance between the Court decision and the closest pivotal member. 6 4 The Court's relatively high level of diffuse public support (Caldeira and Gibson 1992;Friedman 2009;Gibson and Caldeira 2011;Gibson, Caldeira, and Spence 2003) may also impose a cost to override legislation. As Vanberg (2000Vanberg ( , 2001Vanberg ( , 2005 suggests, legislatures in nations whose courts enjoy high levels of public support will be cautious when deciding to override the High Court for fear of public backlash.…”

Section: The Role Of Preferences In Congressional Overrides Of Supremmentioning

confidence: 97%

The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions

Uribe¹,

Spriggs

Hansford³

2014

Law Soc Rev

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Studies of Court–Congress relations assume that Congress overrides Court decisions based on legislative preferences, but no empirical evidence supports this claim. Our first goal is to show that Congress is more likely to pass override legislation the further ideologically removed a decision is from pivotal legislative actors. Second, we seek to determine whether Congress rationally anticipates Court rejection of override legislation, avoiding legislation when the current Court is likely to strike it down. Third, most studies argue that Congress only overrides statutory decisions. We contend that Congress has an incentive to override all Court decisions with which it disagrees, regardless of their legal basis. Using data on congressional overrides of Supreme Court decisions between 1946 and 1990, we show that Congress overrides Court decisions with which it ideologically disagrees, is not less likely to override when it anticipates that the Court will reject override legislation, and acts on preferences regardless of the legal basis of a decision. We therefore empirically substantiate a core part of separation‐of‐powers models of Court–Congress relations, as well as speak to the relative power of Congress and the Court on the ultimate content of policy.

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“…The proper role and function of the judicial branch has been the subject of extensive scholarly debate over the years (e.g., Dworkin ; Fuller ; Kennedy ). Less research has been devoted to examining how judicial decision making is viewed by the judiciary's most important constituent, the general public (see, e.g., Gibson & Caldeira ).…”

Section: Introductionmentioning

confidence: 99%

The Effect of Legal Expert Commentary on Lay Judgments of Judicial Decision Making

Simon¹,

Scurich²

2013

J Empirical Legal Studies

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The public's view of the judiciary is a key factor in the legitimacy of any legal system. Ideally, popular judgments of the adjudicative branch would be independent of the outcomes of the decisions it furnishes. In a previous study (Simon & Scurich 2011), we found that lay people's evaluations of the judicial decision‐making process were highly contingent on the decision outcomes. Participants gave favorable evaluations of the judges and their decisions when they agreed with the judges' outcomes, but reported negative evaluations when they disagreed with them. These results held true across four different types of judicial reasoning, and despite the fact that all decisions were described as having followed proper procedures and been argued by competent lawyers. That study left open the possibility that the public's judgments might be moderated by professional elites, namely, legal experts. Indeed, in real life, much of the public's information about judicial decisions is derived from legal experts who communicate and comment on them in the media. This study examined the effect of professional commentators on lay people's judgments of judicial decision making. We found that the experts' commentaries do not alter participants' evaluations of the courts' decisions, as the evaluations continue to be influenced strongly by the participants' agreement with the outcomes of the judges' decisions. Moreover, lay people's reactions to the experts follow a similar pattern: the experts are deemed competent and their commentaries are deemed reliable when the participants agree with the outcomes propounded by the experts, but the opposite is true when the participants' preferred outcomes are incongruent with the outcomes endorsed by the experts. These findings suggest that the outcome‐dominated judgments of courts cannot easily be tempered by professional elites. This conclusion could also provide some insight into the dynamic process that enables political polarization.

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Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Cited by 128 publications

References 40 publications

Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court

Deciding Not to Decide: The Politics of Recusals on the U.S. Supreme Court

The Influence of Congressional Preferences on Legislative Overrides of Supreme Court Decisions

The Effect of Legal Expert Commentary on Lay Judgments of Judicial Decision Making

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