The Legitimacy of the US Supreme Court: Conventional Wisdoms and Recent Challenges Thereto

Abstract

erhaps no concept in the social sciences has received as much renewed attention as the nearly age-old concept "legitimacy." 1 Scholars of many different intellectual persuasions are being attracted to the concept, even including conventional rational choice researchers (e.g., Vanberg 2001). , and interest in legitimacy extends across several disciplines within the social sciences (e.g., Jost and Major 2001; Tyler 2006). While legitimacy is a concept that can be associated with many different objects (e.g., nations, governments as a whole, cultural values 2), our focus here is on institutional legitimacy, and in particular on the institutional legitimacy of the U.S. Supreme Court. Scholarship on various aspects of the Court's legitimacy has exploded in the past decade or so, with many new studies contributing to the wellestablished conventional wisdom-even if many new studies also challenge established dogma, raising a host of significant empirical and theoretical issues. Legitimacy is a concept particularly relevant to courts, especially non-elected courts like the U.S. Supreme Court. In a democratic polity, accountability and the consent of the governed form the most common source of institutional legitimacy. For many political institutions, legitimacy arises from the social contract.

Dissent, Legitimacy, and Public Support for Court Decisions: Evidence from a Survey-Based Experiment

“…However, because justices are usually appointed and not elected, they confront these issues without being electorally accountable. Consequently, scholars often argue that courts, perhaps more than the elected branches of government, require a reservoir of legitimacy and public support to gain acceptance for unpopular decisions (see, e.g., Gibson and Nelson , Gibson et al ).…”

Motivating Cooperation and Compliance with Authority

“…Court attitudes are typically thought of as obdurate because they are grounded in slow-moving attributes of citizens: more general support for democratic institutions and processes, levels of information and knowledge about the Court, and, to a much lesser degree, overall satisfaction with the institution's performance (Gibson & Caldeira, 2009 ;Gibson & Nelson, 2014a ). Moreover, according to the theory of "value-based regeneration"-the process by which performance dissatisfaction recedes and Court attitudes revert to their grounding in support for democratic institutions and processes (Mondak & Smithey, 1997 )-short-term detours do not last long.…”

“…As Gibson and Nelson ( 2014a ) note, Bush v. Gore is, in many ways, the "acid test" of the "single decision can have deleterious effects on institutional legitimacy" theory. 18 Important for this controversy, Gibson, Caldeira and Spence ( 2003b ) compared evaluations of the Court's diffuse support at the pinnacle of the public controversy surrounding the decision with similar crosssectional evidence from 1987 to 1995.…”

“…Useful reviews of Legitimacy Theory can be found inTyler ( 2006 ),Levi, Sacks, and Tyler ( 2009 ), andGibson and Nelson ( 2014a ).…”

Expectancy Theory and the Election of Judges: Do Judicial Campaigns Really Stink?

“…For a review of legitimacy theory and the U.S. Supreme Court, seeGibson and Nelson (2014).4 For example, one ad urged: "The Right Wing has already taken over the West Wing. Don't let them take over your Supreme Court."…”