Judicial Majoritarianism

Hall, Matthew E. K.; Ura, Joseph Daniel

doi:10.1086/681437

Cited by 27 publications

(25 citation statements)

References 54 publications

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“… We invoke the literature on the so‐called countermajoritarian dilemma only loosely and with full recognition of the many nuances and debates that exist in the literature. For illustrations, see Pildes () and Hall and Ura ().…”

mentioning

confidence: 99%

Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

Gibson¹,

Nelson²

2017

J Empirical Legal Studies

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To what degree is the legitimacy of the U.S. Supreme Court currently at risk? Perhaps the most widely accepted view of how the Supreme Court acquires and maintains its legitimacy is positivity theory, which claims that the legitimizing symbols of judicial authority protect the Court's legitimacy from dissatisfaction with its rulings. Although research has shown that belief in legal realism does not itself threaten the Court's legitimacy, positivity theory suggests that portrayals of the Court as embroiled in politics---that is, as "just another political institution"---can undermine institutional legitimacy. Still, some recent research recognizes that ideological disagreement poses a serious threat to the legitimacy of the Supreme Court. Missing from extant literature is a reconciliation of how these three determinants---ideological dissatisfaction, legal realism, and perceptions of judicial politicization---combine to structure judicial legitimacy. Understanding the difference between perceptions of an "ideological" Court versus a "politicized" Court for institutional legitimacy is our central purpose in this article. We discover that the greatest threats to the Court's legitimacy lie in beliefs that judges are just ordinary politicians (not in ideological dissatisfaction or legal realism). We conclude by drawing out these findings' implications for the upcoming highly politicized battles over nominations to the high bench.

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confidence: 99%

Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

Gibson¹,

Nelson²

2017

J Empirical Legal Studies

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“…Presidential partisanship substantially influences the ideological location of policymaking throughout the federal government (e.g. Bailey, Kamoie, and Maltzman, 2005;Chappell, Havrilesky, and McGregor, 1993;Edwards, 1976Edwards, , 1980Kriner and Reeves, 2015;Peake, 2001) (Perry, 1994;Merrill, 2018), the influence of the president's Solicitor General on the Court's decisions (Bailey, Kamoie, and Maltzman, 2005;Caplan, 1987), the Court's strategic deference to the elected branches of national government (Segal, Westerland, and Lindquist, 2011;Hall and Ura, 2015;Whittington, 2005), the effect of president's Supreme Court appointments (Dahl, 1957;Funston, 1975;Segal, Timpone, and Howard, 2000), and other factors. Also, more impressionisticly, Americans may reasonably see the Supreme Court as part of the "dominant national alliance," along with those in control of Congress and the executive branch (Dahl 1957, p. 293).…”

Section: Uations Of the Supreme Courtmentioning

confidence: 99%

Ideology and Public Support for the Supreme Court

Haglin¹,

Jordan²,

Merrill³

et al. 2018

Preprint

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An extensive literature spanning political science, law, and other fields recognizes that public support for judicial authority insulates courts from political pressures and catalyzes compliance with judicial decisions. The nexus between public sentiment and judicial power is especially salient for the Supreme Court of the United States, whose unelected members exercise judicial review of federal and state laws and executive actions. Yet, a variety of data indicate declining public support for the United States Supreme Court over the last decade or more. Here, we develop and assess an account of ideological asymmetries in public support for the Supreme Court. We find that specific support for the Supreme Court is more strongly negatively related to perceptions that the Court is overly liberal than perceptions that the Court is overly conservative.

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“…Although some scholars dispute characterizing judicial review as a countermajoritarian institution (Dahl, ; Hall and Ura, ; Klarman, ; Rogers, , ), many American constitutional theorists and legal scholars argue that courts' ability to act contrary to the will of the majority is a virtue, a feature and not a bug (e.g., Chemerinsky, ; Dworkin, ; Ely, ). From this view, judicial review provides a mechanism for remedying some public inequalities that disadvantage persistent minorities.…”

Section: Majority Rule Minority Rights and Judicial Reviewmentioning

confidence: 99%

Courts and Issue Attention in Canada

Conway

Jordan

Ura

2018

Social Science Quarterly

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Objective To inform international discourse about judicial countermajoritarianism, we assess whether decisions enhancing gay rights by Canadian courts increase the media's attention to homosexuality and related topics. Method We first collect a data set of monthly counts of relevant articles published in two prominent Canadian newspapers and then estimate Markov‐switching models to evaluate whether increases in media attention to homosexuality are coincident with judicial decisions enhancing gay rights in Canada. Results Each of five landmark gay rights decisions is coincident with a period of heightened media attention to homosexuality. The data show that Canadian newspapers publish nearly twice as many relevant stories during these “active” regimes compared to “inactive” periods. Conclusion Canadian courts can increase attention to issues in the national media. This result supports a dynamic view of the interaction between courts and democratic majorities in place of the static view of democracy endemic to normative discourse about judicial countermajoritarianism.

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Judicial Majoritarianism

Cited by 27 publications

References 54 publications

Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

Ideology and Public Support for the Supreme Court

Courts and Issue Attention in Canada

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