Normative Preferences and Responses to Dissension on the U.S. Supreme Court

The Chief Justice versus the iconoclast: Popular constitutionalism and support for using “sociological gobbledygook” in legal decisions

“…Two other studies have expanded upon that to show that specifically attitudes toward popular constitutionalism affect the criteria used to evaluate the judiciary. Parker and Woodson (2020) found that dissents had a negative effect on both legitimacy and acceptance judgments, but only for those who espoused traditional legalistic views. For supporters of popular constitutionalism, the presence of a dissent increased legitimacy perceptions and had no effect on acceptance judgments.…”

“…However, this conventional wisdom does not apply uniformly to the entire public because not everyone desires a court that applies the law mechanically without any use of discretion (Bonneau et al, 2016;Gibson, 2012;Gibson & Caldeira, 2009, 2011Scheb & Lyons, 2001). Some prefer that rather than just applying the law mechanically, judges should take into account public opinion (Parker & Woodson, 2020). According to the doctrine of popular constitutionalism, the courts are viewed as another political institution, and thus they should similarly reflect the public will (Friedman, 2003;Kramer, 2004;Kramer & Tribe, 2001;Pozen, 2010).…”

“…Our two experiments will show that among legal traditionalists who desire a more formalist court that interprets the law as written using traditional legal theories like original intent, the Chief Justice is correct: the use of social science evidence undermines the acceptance of decisions. However, not all Americans hold the same normative preferences for how judges should make decisions (Bonneau et al, 2016;Gibson, 2012;Gibson & Caldeira, 2009;Parker & Woodson, 2020;Scheb & Lyons, 2001). Among those who reject traditional legalistic values and instead support the doctrine of popular constitutionalism, it is the iconoclast who is correct: the use of social science evidence increases acceptance of decisions.…”

“…This broad effect occurs because much of what appears as a spasm of politicization to a legal traditionalist morphs into a blossoming of democracy in the eyes of a popular constitutionalist. That shift in interpretation is why dissents decrease legitimacy perceptions for legal traditionalists while increasing them for popular constitutionalists, according to an experiment by Parker and Woodson (2020).…”

“…In the current paper, we expand upon the understanding of how this group of iconoclasts who reject the legal orthodoxy in favor of popular constitutionalism interprets the actions of the judiciary, and how those interpretations affect their evaluations of it. Because of the almost complete lack of research into the psychology of popular constitutionalists, virtually nothing is known about the criteria they use to evaluate the Court (but see Parker & Woodson, 2020). We will show-using an experiment involving the use of social science-that those criteria are different than the criteria used by legal traditionalists, and offer an initial glimpse into the previously-opaque minds of popular constitutionalists who make up a substantial and perhaps even a majority of the American population (Gibson & Caldeira, 2009;Scheb & Lyons, 2001).…”