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The Legitimacy of the U.S. Supreme Court in a Polarized Polity


Abstract and Figures

Conventional political science wisdom holds that contemporary American politics is characterized by deep and profound partisan and ideological divisions. Unanswered is the question of whether those divisions have spilled over into threats to the legitimacy of American political institutions, such as the U.S. Supreme Court. Since the Court is often intimately involved in making policy in many issue areas that divide Americans—including the contested 2000 presidential election—it is reasonable to hypothesize that loyalty toward the institution depends on policy and/or ideological agreement and partisanship. Using data stretching from 1987 through 2005, the analysis reveals that Court support among the American people has not declined, nor is it connected to partisan and ideological identifications. Instead, support is embedded within a larger set of relatively stable democratic values. Institutional legitimacy may not be obdurate, but it does not seem to be caught up in the divisiveness that characterizes so much of American politics—at least not at present.
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The Legitimacy of the U.S. Supreme
Court in a Polarized Polity
James L. Gibson*
Conventional political science wisdom holds that contemporary American
politics is characterized by deep and profound partisan and ideological
divisions. Unanswered is the question of whether those divisions have
spilled over into threats to the legitimacy of American political institutions,
such as the U.S. Supreme Court. Since the Court is often intimately involved
in making policy in many issue areas that divide Americans—including the
contested 2000 presidential election—it is reasonable to hypothesize that
loyalty toward the institution depends on policy and/or ideological agree-
ment and partisanship. Using data stretching from 1987 through 2005, the
analysis reveals that Court support among the American people has not
declined, nor is it connected to partisan and ideological identifications.
Instead, support is embedded within a larger set of relatively stable demo-
cratic values. Institutional legitimacy may not be obdurate, but it does not
seem to be caught up in the divisiveness that characterizes so much of
American politics—at least not at present.
*Sidney W. Souers Professor of Government, Professor of African and African American Studies
Department of Political Science, Director, Program on Citizenship and Democratic Values,
Weidenbaum Center on the Economy, Government, and Public Policy, Washington University
in St. Louis, Campus Box 1063, 219 Eliot Hall, St. Louis, MO 63130-4899; e-mail:jgibson@; Fellow, Centre for Comparative and International Politics, Professor Extraordinary in
Political Science Stellenbosch University (South Africa).
Support for the research on which this article is based has been provided by Atlantic Philan-
thropies in a grant to the Center for Democracy and the Third Sector (CDATS) at Georgetown
University, and by the Weidenbaum Center on the Economy, Government, and Public Policy at
Washington University in St. Louis. Marc Morjé Howard, with the assistance of James L. Gibson,
was primarily responsible for executing that survey. I greatly appreciate Howard’s untiring
efforts on the 2005 project, as well as the support for this research provided by Steven S. Smith.
Gregory A. Caldeira, Damon Cann, Jeffrey Yates, Gerhard Loewenberg, and Robert Y. Shapiro
provided most useful comments on an earlier version of this article. I also appreciate the
research assistance of Marc Hendershot, Jessica Flanigan, and Christina Boyd.
Journal of Empirical Legal Studies
Volume 4, Issue 3, 507–538, November 2007
©2007, Copyright the Author
Journal compilation ©2007, Cornell Law School and Blackwell Publishing, Inc.
I. Introduction
The period of the early 21st century in the United States is judged by many
to be an era of rather intense partisan and ideological polarization. From
abortion rights to the war in Iraq, Democrats disagree with Republicans, just
as liberals joust with conservatives. The primary colors of the contemporary
United States seem to be red and blue. On a variety of important political
issues, partisan and ideological differences are substantial and profound.1
Implicated in many of the issues dividing Americans is the U.S.
Supreme Court. For a variety of reasons, the Court often finds itself at the
center of intense political disputes: be it the right to abortion, the right to
burn an American flag in protest, the degree to which church and state must
be separated, and conflicts between rights of privacy and national security.
These issues clearly divide Americans of different ideological and partisan
persuasions, and much of the contemporary debate focuses on what the
Supreme Court has, or has not, ruled.
What is less obvious, however, is whether this same sort of polarization
exists with regard to the basic institutional legitimacy of the Supreme Court.
Have divisions over public policy been exacerbated to the point that they
have undermined the very legitimacy of the institutional author of such
policy—the U.S. Supreme Court? If so, then the divisiveness of the current
era may have more profound and lasting consequences than even the most
pessimistic analysts currently imagine.
There are indeed signs that threats to the institutional integrity of
the Supreme Court abound. Certainly, the Justices of the Court have com-
plained about this matter, often couching their arguments in terms of the
preservation of one of the most distinctive, essential, and cherished
attributes of courts: judicial independence. In 2006, former Justice Sandra
Day O’Connor delivered a series of speeches decrying those who would limit
the independence of the American judiciary.2There can be no doubt that
1The literature on how divided Americans are is itself somewhat divided. Fiorina (2006) does
not believe such differences to be profound, but many (if not most) draw different conclusions
from the available data (e.g., Abramowitz & Saunders 2005; McCarty et al. 2006; Sinclair 2006).
Others suggest that even areas such as foreign policy—once thought to be the last bastion of
nonpartisanship—have become highly disputatious (e.g., Shapiro & Bloch-Elkon 2006).
2For an unofficial transcript of one of these speeches, see
speechtext.shtml(accessed June 8, 2006). In his 2005 report on the federal judiciary, Chief
Justice Roberts asserted what has become another familiar refrain: “A more direct threat to
508 Gibson
certain members of Congress have attacked the U.S. Supreme Court, and no
shortage exists of legislation designed to “curb” the Court’s decision-making
authority: ranging from the “Safeguarding Our Religious Liberties Act,” H.R.
4379, introduced by Ron Paul (TX-14) with the purpose of eliminating
federal court jurisdiction over state and local policies regarding the free
exercise or establishment of religion, any privacy claim related to issues of
sexual practices, orientation, or reproduction, and any equal protection
claim based on the right to marry without regard to sex or sexual orientation,
to the “Congressional Accountability for Judicial Activism Act of 2004,”
introduced in the House of Representatives by Representative Ron Lewis
(KY-2) and 26 co-sponsors, and that would empower Congress to reverse by
a two-thirds vote any judgment of the U.S. Supreme Court that concerns the
constitutionality of an act of Congress (H.R. 3920).3Specific high-stakes
Court decisions have drawn vicious and legitimacy challenging criticism—as
in the direct attack by various law professors on the Court’s legitimacy after
its ruling in Bush v. Gore4—and there is no shortage of threats to the judiciary
from the religious right, right-wing terrorists and murderers, and kooks.5
Serious proposals to change the structure of the judiciary have been floated
(e.g., various plans to convert the life tenure of Supreme Court judges to a
fixed term).6Although not all dissatisfaction with judges in the United States
is focused on the Supreme Court, there can be little doubt that the Justices
of the Court are correct to worry about the implications of the current
political climate in the country for the legitimacy of law and courts in general
judicial independence is the failure to raise judges’ pay.” See
jan06ttg/yearend/index.html(accessed May 26, 2006).
3For a discussion of earlier court-curbing efforts in the American case, see Friedman (2005:314–
15). For European examples, see Schwartz (2000).
4On January 13, 2001, 585 law professors placed an advertisement in the New York Times
condemning the Court’s decision in Bushv.Goreas illegitimate. The advertisement, as well as
much additional material and criticism, can be found at
(accessed December 7, 2001).
5See, for example, May 26, 2006).
6Farnsworth (2004:2, footnotes omitted) asserts: “In recent years at least ten distinguished
scholars (as well as two distinguished judges and a distinguished journalist) have proposed
abolishing life tenure for Supreme Court Justices and replacing it with fixed terms of years in
office.” That paper provides full citations to support this claim. See also Eskridge and Levinson
(1998) and Levinson (2006).
Legitimacy of U.S. Supreme Court in a Polarized Polity 509
and their court in particular. Finally, some longitudinal studies of trust in the
U.S. Supreme Court argue that partisan polarization in Court attitudes has
risen significantly in recent times (e.g., Mate & Wright 2006).7
Nonetheless, earlier research on the legitimacy of the Supreme Court
has generally found that the institution enjoys a fairly substantial “reservoir
of goodwill” among the American people (e.g., Caldeira & Gibson 1992;
Gibson et al. 1998). However, that research is dated, and certainly predates
the emergence of strong ideological and partisan cleavages in the United
States, especially as the dust (and unity) of the 9/11 attack has worn away.
Thus, it seems quite reasonable and interesting to revisit the question of how
much legitimacy the Supreme Court has today. More specifically, have divi-
sions over policy issues spilled over to undermine the Court’s legitimacy? In
addition to answering that important factual question, however, we need to
reexamine the sources of the institution’s legitimacy. Has support for the
Court become dependent on partisanship and ideology, and even policy
agreement with the institution? To what degree has the etiology of institu-
tional support changed over time? To the extent that the bases of legitimacy
have become more fragile, legitimacy theory itself may require rethinking
and reconsidering. Based on a nationally representative face-to-face survey
conducted in 2005, I attempt in this article to answer these questions in a
rigorous and comprehensive fashion.
II. Theories of Institutional Legitimacy
Considerable agreement exists among political scientists on most of the
major contours of legitimacy theory.8For instance, most agree that legiti-
macy is a normative concept, having something to do with the right (moral
and legal) to make decisions. “Authority” is sometimes used as a synonym for
legitimacy. Institutions perceived to be legitimate are those with a widely
accepted mandate to render judgments for a political community; those
7On the other hand, Kritzer (2005:173) analyzes multiple opinion surveys and concludes: “What
is perhaps most striking about the analysis presented above is that one is likely to draw different
conclusions about trends in support for the Supreme Court depending upon which survey series
one looks at.”
8For a most useful recent review of legitimacy theory, see Tyler (2006). For a superb collection
of essays on legitimacy, mostly from psychologists, among whom the theory has recently received
great currency, see Jost and Major (2001).
510 Gibson
without legitimacy find their authority contested. “Basically, when people say
that laws are ‘legitimate,’ they mean that there is something rightful about
the way the laws came about...the legitimacy of law rests on the way it
comes to be: if that is legitimate, then so are the results, at least most of the
time” (Friedman 1998:256).
Legitimacy becomes especially relevant when people disagree about
public policy. When a court, for instance, makes a decision pleasing to all,
discussions of legitimacy are rarely relevant or necessary and do not emerge.
When there is conflict over policy, then some may ask whether the institution
has the authority, the “right,” to make the decision. Legitimate institutions
are those recognized as appropriate decision-making bodies even when one
disagrees with the outputs of the institution. Thus, legitimacy takes on its
primary relevance in the presence of an objection precondition. As Friedman
(1977:141) rightly noted long ago: “We do not need a theory of legitimacy to
explain why people obey a person with a gun, or adhere to an order that
brings them personal honor or gain, or obey their religions or their moral
codes.”9Policy disagreements—even very strong ones—may have few lasting
systemic consequences if the basic legitimacy of the key political institutions
remains intact.
But what exactly are the indicia of institutional legitimacy? Empirically-
oriented scholars have been unhappy with the amorphous nature of the
concept of legitimacy. Under the influence of David Easton (1965, 1975),
researchers have instead been attracted to the notion of institutional10
“support,” with a distinction often being made between “diffuse” and “spe-
cific” support. Although a few important scholars doubt that the two types of
support can be differentiated empirically (e.g., Mishler & Rose 1994), most
recognize a difference, at least at the theoretical level, between approval of
9Moreover, the literature on distributive and procedural justice (e.g., Lind & Tyler 1988; Tyler
1990) teaches us that those who lose on distributive issues often find losing palatable if the
procedures leading to the decision are perceived to be fair (e.g., Baird 2001). However,
controversy exists in the literature on the causal relationships among perceived fairness, legiti-
macy, and compliance (see Gibson 1989; Tyler & Rasinski 1991; Gibson 1991; see also Mondak
1993; Scherer & Curry 2006).
10Research on legitimacy sometimes addresses the legitimacy of regimes and states but at other
times focuses on the legitimacy of specific institutions. This article addresses the latter. For a
useful discussion of the objects of support, see Norris (1999).
Legitimacy of U.S. Supreme Court in a Polarized Polity 511
policy outputs in the short term and a more fundamental loyalty to an
institution over the long term.
Diffuse support therefore refers to “a reservoir of favorable attitudes or
good will that helps members to accept or tolerate outputs to which they are
opposed or the effects of which they see as damaging to their wants” (Easton
1965:273). Diffuse support is institutional loyalty; it is support that is not
contingent on satisfaction with the immediate outputs of the institution.
Easton’s apt phrase—a “reservoir of goodwill”—captures the idea that
people have confidence in institutions to make, in the long run, desirable
public policy. Speaking of parliaments, Loewenberg and Patterson
(1979:285) claim:
Although public attitudes toward legislatures vary depending on short-term
public satisfaction with their performance, some part of the public attitude
toward the institution is unrelated to its performance but reflects long-term
influences....This more enduring attitude, based on cumulative experience
with the institution or with political authority over a lifetime, has been called
diffuse support, to indicate that it is general, that is, unrelated to specific expe-
riences. This part of the attitude toward legislatures is theoretically of great
significance, since it can be a source of public commitment to the institution
through good times and bad and a basis for public compliance with the enact-
ments of the legislature whether they are liked or not.
Institutions without this reservoir of goodwill may be emasculated and there-
fore limited in their ability to go against the preferences of determined
Although there are many ways to conceptualize the orientations ordi-
nary citizens hold toward institutions like the Supreme Court, I contend that
the most politically significant attitudes are best thought of as a form of
institutional loyalty. “Loyalty” represents the idea that failure to make policy
that is pleasing in the short term does not necessarily undermine basic
commitments to support the institution. Institutions such as courts need the
leeway to be able to go against public opinion (as, e.g., in protecting unpopu-
lar political minorities). Thus, a crucial aspect of the political capital of
11Consequently, legitimacy theory is closely tied to—and often debated within—more general
democratic theories concerning majorities and minorities. For a recent useful overview of this
body of literature, see Fallon (2005). Moreover, comparativists (e.g., Tsebelis 2000; Alivizatos
1995) have focused on courts as “veto players” and have acknowledged that legitimacy is a
necessary resource if courts are to play this role. See also Gibson and Caldeira (2003) and
Walker (2006).
512 Gibson
institutions is the degree to which they enjoy the loyalty, not just the
approval, of their constituents.12
A. The Consequences of Institutional Legitimacy
At this point in the theory, an important disagreement over definitions
exists. Some scholars equate legitimacy with compliance; others treat legiti-
macy as one of many possible causes of compliance.13 I take the latter tack,
theorizing that the decision to obey or not obey a law is conceptually inde-
pendent of whether an institution is judged to have the authority to make a
decision. To do otherwise makes tautological the relationship between per-
ceived legitimacy and compliance, and precludes consideration of determi-
nants of compliance that are not grounded in legitimacy.14
Indeed, one of the most interesting unresolved questions in this litera-
ture has to do with the “legitimacy conferring” powers of courts. First clearly
articulated by Dahl (1957), this theory asserts that a court ruling can induce
people to accept the decision of other political institutions because the court
has ratified and sanctified the decision. Since courts rarely challenge the
ruling coalition in the United States (Dahl 1957), the American judiciary
essentially places its imprimatur on policies, thereby encouraging citizens to
accept outcomes with which they disagree (see Clawson et al. 2001). Mondak
and others (e.g., Choper 1980) refer to this as the “political capital” of
courts, and note that institutions must husband this capital and spend it
12Within the context of a formal model of relations between legislatures and constitutional
courts, Vanberg (2001) places great emphasis on the degree of support enjoyed by constitu-
tional courts. The logic goes as follows. Courts enjoying high support also enjoy a presumption
that their decisions ought to be complied with by the legislature. To the extent that the
legislature seeks to evade compliance with a court decision, a backlash will likely result. “The
fear of such a backlash can be a powerful inducement for legislative majorities to respect judicial
decisions as well as the institutional integrity of a court” (Vanberg 2001:347).
13For instance, Yoo (2001:225) uses the following definition: “We can think of institutional
‘legitimacy’ as the belief in the binding nature of an institution’s decisions, even when one
disagrees with them.” By “binding,” he means an obligation to obey. I contend that people obey
laws for many reasons, not just due to legitimacy, and that the degree to which legitimacy and
compliance are related must be treated as an empirical question (as it is, e.g., in Gibson et al.
14For example, Tyler (1990:4) makes this distinction: “Normative commitment through per-
sonal morality means obeying a law because one feels the law is just; normative commitment
through legitimacy means obeying a law because one feels that the authority enforcing the law
has the right to dictate behavior.”
Legitimacy of U.S. Supreme Court in a Polarized Polity 513
wisely if they are to be effective. As Mondak (1992:461) notes: “sponsoring a
policy is a type of gamble; the possibility of negative reaction endangers the
institution’s lifeblood, institutional legitimacy.” Exactly this theory was cited
when scholars asserted that the Court “wounded” itself by its decision in Bush
v. Gore.15 To the extent that courts are perceived as legitimate, citizens
tend to acquiesce to unpopular judicial rulings, even ones with which
they strongly disagree. Thus, to lose this legitimacy conferring capacity—
especially in the context of deep political divisions in American politics—
would deal a serious blow to the function of the Supreme Court in the
American political system and to the ability of the Court to contain and
manage political conflict.
B. Extant Research on the Legitimacy of the U.S. Supreme Court
Much of what we know about recent public attitudes toward the U.S. Supreme
Court comes from the nationally representative surveys conducted by Gibson
and his colleagues in 1987, 1995, and 2001. Relying on the widely accepted
conceptualization of diffuse support provided by Easton (1965, 1975),16 this
research documents several important findings. First, the U.S. Supreme Court
is in general regarded as a quite legitimate institution (e.g., Gibson et al.
15It is easy to see the relevance of this theory to the 2000 U.S. presidential election. The Supreme
Court decision in Bushv.Gore, even though badly divided, effectively ended the election dispute.
The Court ruling eroded Gore’s support, making it difficult if not impossible to continue his
challenge to the election outcome. On its face, the election controversy seems to provide
compelling evidence in support of legitimacy theory. For an empirical analysis of the effect of
this decision on the Court’s legitimacy, see Gibson et al. (2003a). See also Yates and Whitford
(2002), Kritzer (2001, 2005), and Gillman (2001).
16A considerable body of research has evolved based on national surveys asking a question about
confidence in the leaders of the U.S. Supreme Court. However, it is unclear to me what exactly
this question is measuring. For instance, is “confidence” the same as predictability, or is it
instead equivalent to confidence that the leaders will do what is right, and if the latter, right for
the country, me, my group, or my ideological preferences? And who are the leaders of the U.S.
Supreme Court? Does the question refer to the Chief Justice, the most senior member of the
Court, or someone else? It seems easy to imagine the following sort of citizen: one who is liberal,
is completely confident that the right-wing leadership of the Court will make right-wing deci-
sions, of which the citizen strongly disapproves, but who nonetheless does not seek to emascu-
late the Court since either (1) liberals may one day again control the Court, and/or (2)
whatever the Court may be doing at the moment, the institution plays a vital role in American
politics and therefore must be respected, protected, and obeyed. I am certain there is at least
one such citizen in the United States, and strongly suspect that there are more. Gibson et al.
(2003b) provide more rigorous evidence that this survey item measuring confidence is not a
very useful measure of institutional loyalty.
514 Gibson
1998). Second, the legitimacy of the Court has waxed and waned little over
time, although the number of available surveys of institutional legitimacy is
small. Even controversial decisions like that in Bush v. Gore seem not to have
undermined the Court’s legitimacy (Gibson et al. 2003a). Among some
groups, however, legitimacy has in fact declined, as in the rather distinct (but
not necessarily abrupt) “about-face” of African-American attitudes toward the
Court (e.g., Gibson & Caldeira 1992). Finally, support for the Court has
important implications for willingness to accept even disagreeable judicial
decisions (Gibson et al. 2005). I should reiterate, however, that all these
conclusions are drawn from a period in American history that predates the
current era of strong partisan and ideological divisions.
Earlier research has also provided reasonable explanations of the vari-
ability in attitudes toward the Supreme Court, with extant research identify-
ing four important sources of support: (1) ideology, partisanship, and policy
agreement, (2) knowledge of the institution and its role in American politics,
(3) support for democratic institutions and processes, and (4) race. I will
briefly consider each.
Although clouded by causal ambiguity, a relationship between
approval of performance and policy outputs (specific support) and institu-
tional loyalty is typically found in research on public attitudes (e.g., Caldeira
& Gibson 1992). The relationship varies over time (as different segments of
the population are pleased or displeased with Court outputs), and the
relationship often implicates partisanship and ideology since they help struc-
ture evaluations of Court decisions. To the extent, however, that these
relationships are very strong, they undermine the validity of measures of
diffuse support. Whether this is a causal relationship remains unclear (and,
indeed, perhaps diffuse support creates specific support via processes of
framing—see Gibson & Caldeira 2006; Baird & Gangl 2006).
Race may be a surrogate for policy disagreement with the Court.
Several studies have documented that African Americans exhibit less support
for the Supreme Court than whites (e.g., Gibson & Caldeira 1992). This
research is also important because it reveals something about the processes
by which legitimacy deteriorates. As a “reservoir of goodwill,” legitimacy is
not easily shaken in the short term by policy disagreements, but over the long
haul, the repeated failure of an institution to meet policy expectations
can weaken and even destroy that institution’s legitimacy in the eyes of
disaffected groups. This seems to be exactly what happened with African
Americans: as the Court changed its policy orientation, so, too, did blacks’
opinions of the Court change.
Legitimacy of U.S. Supreme Court in a Polarized Polity 515
Although early socialization processes are thought by many to be influ-
ential in creating support for the judiciary, perhaps more important are the
basic political values to which people subscribe. Those with commitments
to individual freedom and other democratic values (perhaps grounded in
individualism) are more likely to support minoritarian institutions like courts
(Caldeira & Gibson 1992, 1995). This finding is important because it implies
that support for the Supreme Court will change only slowly over time (since
values themselves change only slowly). Perhaps the most important contribu-
tion of this body of work on the etiology of Court support is the evidence that
the Supreme Court gets much of its legitimacy from its role in the American
democratic process, and, apparently, Americans’ understanding of that role.
Extant research has also consistently shown that those who know more
about courts are more likely to support them (e.g., Gibson et al. 1998).
Gibson and his colleagues have explicated this finding within the context of
the theory of positivity bias. As Gibson et al. (2003a) explain it, positivity bias
is a frame through which contemporary political conflicts are judged. In
their theory, the process goes something like the following. People become
attentive to courts in the context of policy controversies (e.g., Bush v. Gore;
see Gibson et al. 2003a) or events like confirmation hearings (e.g., on the
Alito confirmation; see Gibson & Caldeira 2006). In such circumstances,
judicial symbols proliferate—in part because elites and groups realize the
power of such symbols and attempt to manipulate them—so it is impossible
for attentive citizens to avoid exposure to them. Exposure to legitimizing
judicial symbols reinforces the process of distinguishing courts from other
political institutions. The message of these powerful symbols is that “courts
are different,” and owing to these differences, courts are worthy of more
respect, deference, and obedience—in short, legitimacy. This process of
social learning explains why citizens who are more aware of and knowledge-
able about courts tend to extend more legitimacy to the judiciary.17
Thus, a tension exists in the literature on support for the Supreme
Court. On the one hand, support is to some degree related to approval or
17Hibbing and Theiss-Morse (1995) have shown that greater awareness of the Supreme Court
leads to more support for it, whereas greater awareness of Congress is associated with less support
for that institution. Kritzer and Voelker (1998) make a similar argument. Caldeira and Gibson
(1992, 1995) have shown in several contexts that greater awareness of judicial institutions
is related to a greater willingness to extend legitimacy to courts. Gibson et al. (1998) have
confirmed this finding in research in roughly 20 countries. Something about being exposed to
the institution increases support for it, and there is apparently something unique about expo-
sure to judicial institutions.
516 Gibson
disapproval of the performance of the institution. Why did support for the
Supreme Court decline precipitously within the black community in the
United States? The simple answer is that the Court reversed policy courses,
with the result that the long-standing support African Americans extended
to the Supreme Court withered. From this perspective, Court support can
change fairly quickly over time; the deep disagreements existing in the
United States today may have a strongly corrosive impact on institutional
Support may instead reflect processes of political socialization, the
creation of political values, and the reinforcement of such values through
highly potent judicial symbols. Loyalty to institutions like the Supreme Court
is therefore a natural extension of broader support for democratic institu-
tions and processes. If this latter process is dominant, then one would not
expect much change in the short term, since values change slowly, and since
legitimizing symbols are so widely available to reinforce support. Under this
process, it is unlikely that the current divisions over public policy will spill
over and affect the legitimacy of the Supreme Court. It is these alternative
possibilities that this article investigates.
III. Research Design
This research is based on a nationally representative sample interviewed face
to face during the summer of 2005. The fieldwork took place from mid-May
until mid-July 2005. A total of 1,001 interviews was completed, with a
response rate of 40.03 percent (AAPOR Response Rate #3). No respondent
substitution was allowed; up to six callbacks were executed. The average
length of interview was 83.8 minutes (with a standard deviation of 23.9
minutes). The data were subjected to some minor “poststratification,” with
the proviso that the weighted numbers of cases must correspond to the
actual number of completed interviews. Interviews were offered in both
English and Spanish (with the Spanish version of the questionnaire prepared
through conventional translation/back-translation procedures). Samples
such as this have a margin of error of approximately 3.08 percent.
IV. Measuring Institutional Legitimacy
My thinking about operationalizing institutional loyalty follows a consider-
able body of research on theorizing about and measuring mass perceptions
Legitimacy of U.S. Supreme Court in a Polarized Polity 517
of high courts (see Caldeira & Gibson 1992, 1995; Gibson et al. 1998; Gibson
& Caldeira 1995, 1998, 2003).18 That research conceptualizes loyalty as oppo-
sition to making fundamental structural and functional changes in the insti-
tution (see Boynton & Loewenberg 1973), and is grounded in the history of
attacks by politicians against courts in the United States (see Caldeira 1987)
and elsewhere (e.g., manipulation of their jurisdiction; see Schwartz 2000).
As Caldeira and Gibson describe it (1992:638), those who have no loyalty
toward the U.S. Supreme Court are willing “to accept, make, or countenance
major changes in the fundamental attributes of how the high bench func-
tions or fits into the U.S. constitutional system” (see also Loewenberg 1971).
Loyalty is also characterized by a generalized trust that the institution will
perform acceptably in the future. To the extent that people support funda-
mental structural changes in an institution, and distrust it, they are extend-
ing little legitimacy to that institution.19 Conceptually, loyalty thus ranges
from complete unwillingness to support the continued structure and func-
tion of the institution to staunch institutional fealty.
Consequently, my measure of the legitimacy of the Supreme Court is
derived from that used by Gibson et al. (2003b). In the 2005 survey, four
statements were put to the respondents, with the request that they indicate
their degree of agreement or disagreement with the statement. Table 1
reports the 2005 findings, along with the findings from the 2001 national
survey by Gibson et al. Since similar questions were asked in national surveys
in the United States in 1987 and 1995, those results are reported as well. The
table is structured so that the third data column (labeled “Supportive of
the Institution”) reports the percentage of respondents giving a favorable
answer to the statement, irrespective of whether the answer is “agree” or
“disagree.” For instance, in 2005, 68.9 percent of Americans disagreed with
the statement: “If the U.S. Supreme Court started making a lot of decisions
that most people disagree with, it might be better to do away with the
Supreme Court altogether.” I deem a disagree response to represent loyalty
toward the institution, and therefore the level of support for the Court is 68.9
18For a full explication of the conceptual and theoretical meaning of this concept, see the
discussion in Caldeira and Gibson (1992:636–42). Here, I provide only an overview of the
conceptualization since this is well-trodden territory.
19For a useful analysis of legitimacy and FDR’s attack on the Supreme Court, see Caldeira
518 Gibson
Table 1: Loyalty Toward the U.S. Supreme Court, 1987–2005
Item Year
Level of Diffuse Support for the Supreme Court
Mean SD NNot Supportive Undecided Supportive
Do away with the Court
1987 9.4 12.9 77.7 3.9 0.9 1218
1995 16.8 7.2 76.0 3.8 1.0 803
2001 12.9 4.4 82.7 4.2 1.2 1418
2005 18.2 12.9 68.9 3.7 1.0 995
Limit the Court’s jurisdiction
1987 28.4 24.4 47.2 3.3 1.0 1216
1995 35.5 11.7 52.8 3.2 1.1 803
2001 28.3 11.0 60.7 3.6 1.3 1418
2005 32.4 16.2 51.4 3.2 1.1 996
Court can be trusted
1987 not asked
1995 25.1 9.6 65.3 3.4 1.0 804
2001 17.0 5.1 77.8 3.9 1.2 1418
2005 18.7 15.8 65.5 3.5 0.9 996
Court gets too mixed up in politics
1987 not asked
1995 not asked
2001 40.8 15.9 43.3 3.1 1.4 1418
2005 44.4 18.4 37.2 2.9 1.1 997
Note: The percentages are calculated on the basis of collapsing the five-point Likert response
set (e.g., “agree strongly” and “agree” responses are combined). The mean and standard
deviations are calculated on the uncollapsed distributions. Higher mean scores indicate more
institutional loyalty.
The propositions are:
Do away with the Court:
1987: If the Supreme Court continually makes decisions that the people disagree with, it might
be better to do away with the Court altogether.
1995/2001/2005: If the US Supreme Court started making a lot of decisions that most people
disagree with, it might be better to do away with the Supreme Court altogether.
Limit the Court’s jurisdiction:
1987: The right of the Supreme Court to decide certain types of controversial issues should be
limited by the Congress.
1995/2001/2005: The right of the Supreme Court to decide certain types of controversial issues
should be reduced.
Court can be trusted:.
1995/2001/2005: The Supreme Court can usually be trusted to make decisions that are right for
the country as a whole.
Court gets too mixed up in politics:
2001/2005: The U.S. Supreme Court gets too mixed up in politics.
Source: 1995: Gibson et al. (1998:350–51, Table 4).
Legitimacy of U.S. Supreme Court in a Polarized Polity 519
The first conclusion to be drawn from Table 1 is that, in 2005, the
Supreme Court seemed to have a fairly broad base of support within the
American mass public. At one extreme, only a very small proportion (18.2
percent) favor doing away with the Court, even if a plurality (44.4 percent)
believes that the Court gets too mixed up in politics. A substantial majority
(65.5 percent) believes the Court can generally be trusted, and a slim major-
ity does not want the jurisdiction of the institution altered. Counting across
all four statements, the average number of supportive replies is 2.2, with only
12.8 percent of the respondents expressing no support at all for the Court,
and 20.3 percent issuing supportive replies to all four statements.
The data in Table 1 also allow some conclusions about change in
attitudes toward the Supreme Court. Interestingly enough, the apogee of
support for the Court was reached right in the midst of the struggle over the
2000 presidential election and the Court’s highly controversial decision in
Bush v. Gore. Consider the results on the “Court can be trusted” statement. In
1995, 65.3 percent of the respondents agreed. This figure rose significantly
in 2001 to nearly 78 percent, before declining in 2005 to almost exactly the
same level as was observed a decade earlier. Roughly similar patterns char-
acterize the jurisdiction item and even the measure of institutional commit-
ment. From these data, it seems obvious that the effect of the presidential
dispute in 2000 was to elevate the perceived legitimacy of the Court (see
Gibson et al. 2003a), even if only temporarily.
More important, we see in these data no evidence that the current political
climate has tainted the legitimacy of the Supreme Court. Support for the Court has
declined in the last few years, but its decline seems to be a retreat from the
unusually high levels of loyalty it enjoyed around the time of the 2000
presidential election dispute, and a return to a level predating that dispute.
Although at this point in my analysis the data are not dispositive—partisan
and ideological divisions may explain the decline since 2001—the most
reasonable tentative conclusion is that 2001 was somewhat unusual, not
2005. One other basis of comparison is available. Based on the data reported
by Gibson et al. (1998), supplemented with research conducted since then in
Canada (Fletcher & Howe 2000) and South Africa (Gibson forthcoming), it
is possible to compare the legitimacy of the U.S. Supreme Court with that
of other high courts throughout the world. Figure 1 reports data on the
summary indicator of support for the high courts in about 20 countries.
The item used refers to “doing away with” the court if it continually makes
decisions with which many people disagree. This summary measure of insti-
tutional loyalty provides a useful basis for cross-national comparison.
520 Gibson
Figure 1: Cross-national variability in support for constitutional courts, do not do away with the institution.
Gre ece
Germany(W est)
France(1 993)
Luxembou rg
France(1 995)
Spain(1 995)
uthAfri ca ( 2004)
Ire lan d
Germany ( East)
rica(1 997)
South Africa (2001)
% Supportive: Do Not Do Away With the Court
66 69
31 34
27 28
33 33
Note: Most of these data are taken from Gibson et al. (1998:340, Table 4). When not otherwise indicated, the data are taken from surveys
conducted in the period 1993–1995. For a few countries, more than a single survey is available; for these, the year of the survey is indicated in
the country caption. The Canadian data are taken from Fletcher and Howe (2000); the South African data are from Gibson (forthcoming).
Legitimacy of U.S. Supreme Court in a Polarized Polity 521
These data support several conclusions (including the conclusion that
enormous variability exists in the legitimacy of these constitutional courts).
Most important, in comparison to other national high courts, the U.S.
Supreme Court enjoys an extraordinarily wide and deep “reservoir of
goodwill”—only a handful of institutions has support percentages approach-
ing those of the American court. Thus, in comparison to the past and to
other national high courts, the Supreme Court today enjoys widespread
institutional legitimacy.
To assess more rigorously the hypotheses concerning the etiology of
Court support, I require a summary index of loyalty toward the institution.
My analysis reveals that these 2005 measures of legitimacy are reasonably
reliable, with a Cronbach’s alpha of 0.64. The average interitem correlation
is 0.31, which is moderately strong given categorical data that only approxi-
mate an interval-level scale, and given some degree of degenerate variance in
some of the items. In terms of validity, the item set is clearly unidimensional,
with common factor analysis extracting a single dominant factor (eigen-
value1=1.94; the eigenvalue of the second extracted factor is 0.85). The two
most valid indicators of institutional loyalty are the statement about the
Court’s jurisdiction (factor loading =0.78), and the statement about doing
away with the Court (loading =0.63). The assertion that the Court gets too
mixed up in politics has an acceptable loading (0.48), although the general
statement about trusting the Court has a relatively low correlation with the
latent factor (0.35).20 The factor score (from the first unrotated factor) and
a simple summated index of the responses to the four items are correlated at
0.96. For purposes of analyzing interindividual variability in support for the
Court, I therefore use the summated index as the indicator of institutional
A. Summary
The data produced to this point strongly suggest that the legitimacy of the
Supreme Court has not been undermined within this most recent period
of strong partisanship and deep ideological divisions. Indeed, the Court
20Cronbach’s alpha does not improve with the deletion of this item from the set of measures,
and the correlation between the four-item and three-item indices is 0.95. Consequently, I use
the four-item index in the remainder of this analysis.
522 Gibson
seems as widely trusted today as it was a decade ago. Large majorities of the
American people express loyalty toward the institution. However much
Americans may dislike those of opposing ideologies and partisan attach-
ments, they seem to be reasonably united in their commitment to the
Supreme Court.
V. Accounting for Individual-Level Variability
in Institutional Loyalty
However, data on the univariate frequency distributions of these items are
obviously not definitive on the issue of whether loyalty toward the Court is
grounded in ideology and partisanship. To answer that question more rig-
orously requires that the origins of institutional support be more thoroughly
A. Partisanship and Ideology
The first hypothesis requiring consideration is relatively simple and straight-
forward. I hypothesize that citizens in ideological and/or partisan disagree-
ment with Supreme Court will express less support for the institution. I
therefore hypothesize that Democrats support the Court less than Republi-
cans, just as liberals are expected to extend less legitimacy to the institution
than are conservatives.
The data reveal that attitudes toward the Supreme Court are not
strongly influenced by the ideological predispositions of the respondents.
For instance, the correlation between loyalty and the respondent’s self-
identification on a liberalism-conservatism scale does not even achieve sta-
tistical significance (with nearly 1,000 cases). A slightly stronger relationship
exists between simple affect toward conservatives and institutional loyalty
(r=0.10), but there is also a similar relationship between feeling positively
toward liberals and loyalty toward the Court (r=0.09). The relationship
between relative affect toward liberals and conservatives and loyalty is abso-
lutely trivial. Finally, there is only the slightest tendency for individual ideo-
logical polarization (here defined as the square of the difference between
affect toward liberals and affect toward conservatives) and support for the
Court, with those adopting more polarized views expressing more support
for the Court. Thus, the most appropriate conclusion from this portion of
the analysis is that loyalty toward the Supreme Court has very little to do with the
ideological orientations of citizens.
Legitimacy of U.S. Supreme Court in a Polarized Polity 523
The relationship between attitudes toward the Court and party iden-
tification is similarly tepid. There is little tendency for Republicans or
Democrats to express more support for the Court, although there is some
tendency for those adopting a strong party attachment (Republican or
Democratic) to be more supportive. If we take the conventional tack of
collapsing strong partisans, weak partisans, and those claiming to lean
toward a party, we find that 49.2 percent of the Republicans express rela-
tively high support for the Court (support the Court on at least three of the
four propositions), while 42.6 percent of the Democrats are similarly opin-
ionated. Those without a party attachment (independents) are slightly less
likely to support the Court (39.8 percent), in part because this category (as
usual) includes the most poorly informed citizens. As I have noted, Repub-
licans are slightly more supportive of the Court than Democrats, but the
differences are so small that one would be hard pressed to term these
differences “partisan polarization.”
By way of comparison, we can consider the relationship between ide-
ology and partisanship and policy preferences on a variety of legally relevant
issues. I focus on four areas of public policy: (1) the right of a woman to
chose whether to have an abortion, (2) affirmative action, (3) the rights of
gay people, and (4) invasions of citizen privacy by the government. Accord-
ing to Gibson and Caldeira (2006), these four issues represent the most
important policy concern for roughly 75 percent of the American people.
Table 2 reports the bivariate relations between ideology and partisanship
and each issue variable, as well as the amount of variance jointly explained by
these factors. For comparison, I also include in that table comparable analy-
sis of institutional loyalty.
With one exception, all the policy preferences represented by
these variables are moderately to strongly predicted by the respondent’s
partisan and ideological identification. Liberals and Democrats tend to
favor extending the right to chose whether to have an abortion to
women, affirmative action, and gay rights. In general, the relationships
are stronger with ideology than they are with partisanship. Consider
abortion attitudes: the percentages of respondents who would grant
considerable rights of choice to women when it comes to abortions
range from 35.0 percent to 71.7 percent across the seven categories of
party identification, and for the 11 categories of ideological self-
identification, abortion permissiveness ranges from 37.0 percent to 81.8
percent. These are obviously reasonably strong relationships. The single
exception has to do with the civil liberties measure, on which liberals
524 Gibson
Table 2: Partisan and Ideological Divisions on Public Policy Issues
Bivariate Correlation
RPartisanship Ideology
Abortion 0.20*** 0.29*** 0.30***
Affirmative Action 1 0.16*** 0.24*** 0.25***
Affirmative Action 2 0.16*** 0.29*** 0.29***
Gay Freedom 0.l5*** 0.33*** 0.33***
Gay Marriage 0.22*** 0.38*** 0.39***
Civil Liberties 0.09** 0.06* 0.10**
Supreme Court Loyalty -0.05* 0.03 0.08
***p<0.001; **p<0.01; *p<0.05.
Note: All policy variables are scored such that high values indicate liberal responses. For
Supreme Court loyalty, high scores indicate greater loyalty.
Measures of policy preferences:
Abortion: Which one of the opinions on this page best agrees with your view on the abortion
issue? You can just tell me the number of the opinion you choose.
1. By law, abortion should never be permitted.
2. The law should permit abortion only in case of rape, incest, or when the woman’s life is in
3. The law should permit abortion for reasons other than rape, incest, or danger to the
woman’s life, but only after the need for the abortion has been clearly established.
4. By law, a woman should always be able to obtain an abortion as a matter of personal choice.
Equal opportunity for blacks and whites is very important but it’s not really the government’s job
to guarantee it. (Likert response set)
Irish, Italian, Jewish and many other minorities overcame prejudice and worked their way up.
Blacks should do the same without any special favors. (Likert response set)
Gay men and lesbians should be free to live their own lives as they wish. (Likert response set)
There has been much talk recently about whether gays and lesbians should have the legal right
to marry someone of the same sex. Which of the following comes closest to your position on this
issue? Do you support full marriage rights for gay and lesbian couples; do you support gay civil
unions or partnerships, but not gay marriage; or, do you oppose any legal recognition for gay
and lesbian couples?
1. Full Marriage Rights
2. Civil Unions/Partnerships but not full marriage rights
3. No Legal Recognition
In order to curb terrorism in this country, it will be necessary to give up some civil liberties OR
We should preserve our freedoms above all, because otherwise the terrorists will win.
1. First
2. More first than second
3. Can’t say
4. More second than first
5. Second
Legitimacy of U.S. Supreme Court in a Polarized Polity 525
and Democrats tend to favor individual liberty over security, but only
slightly so.21
The most important contrast in this table is, of course, with the failure
of ideological and partisan identification to predict loyalty toward the
Supreme Court. Americans may be divided, even sharply so, on many of the
policy issues on which the Supreme Court chimes in, but on the institution
itself, similar divisions are not manifest. Indeed, when institutional loyalty is
regressed on the measures of ideological and partisan self-identification, the
resultant variance explained is a mere 0.6 percent.
These data do not indicate that support for the Court suffers from
partisan polarization, as so many other aspects of American politics seem to.
This is not to say that partisanship and ideology do not shape reactions to
individual court decisions or to the issues that underlay them.22 But attitudes
toward the institution itself are not at all determined by partisanship or
ideology. We must look elsewhere for an explanation of the variability in
institutional support.
B. Knowledge of the Court and Support for It
In general, an important subtext of the findings to this point is that lack of
support for the Court is concentrated among people with so little political
information that they have difficulty placing themselves on a scale of ideol-
ogy or partisanship. It is therefore worth considering more completely the
relationship between information levels and attitudes toward the Supreme
To what degree does loyalty toward the Supreme Court reflect knowl-
edge of the institution? Fortunately, this important question can be
answered since a three-item set of knowledge items was included on the
survey. The respondents were asked:
21This lack of relationship may be due to the fact that only one-third of the respondents were
willing to give up some of their civil liberties in order to fight against terrorism.
22Caldeira and Gibson (1992) found that individual policy agreement and disagreement exerted
little independent influence on support for the Supreme Court. The same is true in the 2005
data, at least insofar as these four areas of policy attitudes are concerned. Regressing institu-
tional loyalty on the policy measures shown in Table 2 results in an R2of 0.013, with none of the
indicators being significantly related to Court loyalty. For example, the bivariate correlation
between attitudes on how much abortion policy should restrict the choices of women and
attitudes toward the Court is a trivial 0.03.
526 Gibson
Some judges in the U.S. are elected; others are appointed to the
bench. Do you happen to know if the justices of the U.S. Supreme
Court are elected or appointed to the bench? (65.4 percent correct)
Some judges in the U.S. serve for a set number of years; others serve
a life term. Do you happen to know whether the justices of the U.S.
Supreme Court serve for a set number of years or whether they serve
a life term? (60.5 percent correct)
Do you happen to know who has the last say when there is a conflict
over the meaning of the Constitution—the U.S. Supreme Court, the
U.S. Congress, or the President? (57.2 percent correct)
The hypothesis is that those who are more knowledgeable about the Court
will be more supportive of it.23
Figure 2 reports the mean level of support for the Supreme Court
(here indicated, to simplify interpretation, by the number of supportive
23This set of indicators is quite reliable, with a Cronbach’s alpha of 0.75.
Figure 2: The relationship between political knowledge and
institutional support.
e of the Supreme Court, Correct Replies
Of Three
Supreme Court Support, Number of Supportive
Legitimacy of U.S. Supreme Court in a Polarized Polity 527
replies out of four questions) by levels of knowledge about the institution.24
The data clearly demonstrate that as knowledge of the Supreme Court
increases, so, too, does loyalty toward the institution. The relationship is at
least moderate (r=0.27). To know more about the Court is indeed to be
more favorably predisposed toward the institution.
This finding confirms a considerable body of earlier research on the
legitimacy of courts throughout the world (e.g., Gibson et al. 1998). We
presume that the relationship is based on the following causal chain: atten-
tiveness to the institution is associated with knowledge of its structure and
function, but also with exposure to the legitimizing symbols of the judiciary.
Consequently, as citizens are learning about the institution, they are also
learning about its special, nonpolitical methods of policy making. In short,
they are learning to accept the legitimacy of the institution.25
C. Democratic Values and Court Support
Caldeira and Gibson found in earlier research (1992) that support for the
Supreme Court is fairly strongly grounded in more general commitments to
democratic institutions and processes. Those committed to democracy tend
24The level of knowledge we discovered in this survey is quite high. For a complete analysis of
knowledge of the Court and other political institutions, see Gibson and Caldeira (2007). Note
that the level of knowledge we find here is similar to that found by Gibson et al. in their 2001
survey. For a review of the literature on knowledge of the judiciary, see Caldeira and McGuire
25I have considered the possibility of an interaction between ideology and levels of information
about the Court, under the hypothesis that support for the Court is more closely connected to
ideology among the most informed Americans. In fact, there is some slight evidence of such an
effect, with the addition of the ideology interaction producing a statistically significant increase
in the explained variance in Court support. (No meaningful interaction exists between partisan
identification and knowledge of the Court.) The standardized regression coefficients indicating
the connection between ideology and support are: -0.09, -0.02, -0.01, and 0.14, ranging from
the lowest level of knowledge to the highest. Thus, among all respondents who scored less
than the highest score on the knowledge index (3), support for the Court varies independently
of one’s ideology (the three negative coefficients are not distinguishable from zero). Among the
most informed Americans, those who are more liberal tend slightly to support the Court more.
Since it is doubtful that liberals are supporting the current Supreme Court out of satisfaction
with the Court’s policy outputs, I interpret this relationship as reflecting the commitment of
liberals to institutions generally associated with advancing individual rights, and therefore more
akin to diffuse support than specific support. Since no relationship exists between ideology and
Court support for most Americans, and since the weak tendency of liberals to support the Court
more runs counter to the polarization hypothesis, I will not consider this interactive relationship
any further in this analysis.
528 Gibson
to express stronger support for the Supreme Court. We test that hypothesis
here, with a more extensive (and perhaps more valid) set of measures of
support for democratic institutions and processes (see the Appendix).
Table 3 reports the results.
We observe a fairly strong relationship between support for democratic
institutions and processes and loyalty toward the Supreme Court. The equa-
tion with the four predictors is able to explain 16 percent of the variance
in loyalty toward the Court. The single best predictor (as indicated by the
multivariate regression coefficient) is support for the rule of law, although
the high multicollinearity between tolerance and individual liberty dilutes
the regression coefficient of each.26 Thus, like the evidence from an earlier,
less divisive era, these data demonstrate that attitudes toward the Supreme
Court are closely connected to more general orientations toward democratic
institutions and processes.
Why do those who favor democratic institutions and processes support
the Supreme Court more? It seems likely that there are two driving forces in
this relationship. First is the rule of law. The Court is obviously a preeminent
rule of law institution; indeed, the Court is in some sense the principal
guardian of the rule of law. Those who love law tend to love the Court.
Second, the democratic values we measure have much to do with individu-
alism and individual liberty (e.g., tolerance). The Supreme Court is the
26For purposes of this analysis, whether one democratic value or the other is the most influential
is of little substantive consequence.
Table 3: Democratic Values as Predictors of Loyalty to the Supreme Court
Predictor r b s.e. b
Support for the rule of law 0.31 0.21 0.03 0.24***
Support for a multiparty system 0.33 0.14 0.03 0.17***
Political tolerance 0.18 0.11 0.03 0.15***
Support for liberty over order 0.23 0.02 0.04 0.02
Intercept 3.34 0.02
Standard deviation – Dependent variable 0.70
Standard error of estimate 0.64
Note: Significance of standardized regression coefficients (b): ***p<0.001; **p<0.01;
Legitimacy of U.S. Supreme Court in a Polarized Polity 529
quintessential minoritarian institution in the American system of govern-
ment; indeed, it is the primary institution designed and empowered to
protect minorities against abuse by the majority. Thus, it is not surprising
that loyalty toward the Court is so firmly embedded within the democratic
values belief system.
D. Multivariate Analysis
To this point we have established several possible causes of variability in
loyalty toward the Supreme Court. It remains to consider these variables
within the context of an overall multivariate equation. I considered includ-
ing in that equation a variety of additional control variables, following pri-
marily the earlier work of Caldeira and Gibson (1992). However, trivial
bivariate correlations were found between court attitudes and gender and
age, so these variables were excluded from further consideration. In addi-
tion, from the analysis above, the following variables have no connection
whatsoever with support for the Court, and therefore have been dropped
from the equation: party identification, ideological self-identification, and
attitudes toward a woman’s right to choose on the issue of abortion.27 On the
other hand, also following Caldeira and Gibson (1992), I added a measure of
the respondent’s political efficacy,28 as well as dummy variables for the three
racial minorities included in our sample. Table 4 reports the results.
First, I note that a considerable amount of variance in institutional
loyalty is explained by this simple equation: R2=0.20. Second, despite signifi-
cant bivariate relationships, three predictors are entirely insignificant in the
full equation: knowledge of the judiciary, the respondent’s level of education,
and the relative value the respondent attaches to liberty and order. The latter
is largely a function of multicollinearity (with political tolerance and support
for a multiparty system). In addition, the direct impact of knowledge in the
multivariate equation vanishes owing to its strong relationships with support
for democratic institutions and processes, and via its moderate bivariate
27Although this decision has no consequence whatsoever for the statistical results, I have
excluded these variables in order not to mis-specify the equation. Mis-specification is typically
understood as the failure to include relevant predictors, but the concept also refers to the
inclusion of irrelevant variables. But as I note, the statistical results are virtually identical when
these variables are added to the equation.
28The measure is a simple index of efficacy derived from responses to four conventional
indicators of internal and external political efficacy.
530 Gibson
relationship with level of education.29 Third, the most powerful predictors of
court attitudes are two of the measures of democratic values: support for the
rule of law and support for a multiparty system. Loyalty toward the Supreme
Court is very much a function of broader support for democratic institutions
and processes. Finally, like earlier analyses, I find that African Americans are
significantly less supportive of the Court. To a lesser degree, Asian Americans
are as well. The coefficient for Hispanics, while negative, does not achieve
statistical significance. Care must be taken with these conclusions regarding
race and loyalty, however, since relatively small numbers of blacks, Hispanics,
and Asians are included in the sample.30
If I am allowed to take some liberties in moving away slightly from the
data, the causal process involved here seems relatively clear. Citizens who are
29When knowledge is regressed on the four measures of democratic attitudes, 20 percent of its
variance can be accounted for. The addition of education to that equation adds another 6
percent to R2.
30Note that Caldeira and Gibson (1992) had a bona fide oversample of African Americans and
therefore could give this group much more substantive attention than is possible with the 2005
Table 4: Multiple Predictors of Loyalty to the Supreme Court
Predictor r b s.e. b
Support for the rule of law 0.31 0.18 0.03 0.21***
Support for a multiparty system 0.33 0.12 0.03 0.15***
Political tolerance 0.18 0.08 0.03 0.11**
Support for liberty over order 0.23 0.00 0.04 0.01
Court knowledge 0.22 0.02 0.02 0.03
Level of education 0.20 0.03 0.01 0.07
Political efficacy 0.17 0.14 0.04 0.12***
African American -0.14 -0.22 0.07 -0.10***
Hispanic -0.09 -0.11 0.07 -0.05
Asian -0.06 -0.24 0.11 -0.07*
Intercept 2.94 0.10
Standard deviation – Dependent variable 0.70
Standard error of estimate 0.63
Note: Significance of standardized regression coefficients (b): ***p<0.001; **p<0.01;
Legitimacy of U.S. Supreme Court in a Polarized Polity 531
better educated learn more about the Supreme Court and the democratic
theory in which the Court is embedded and sustained. I suspect that the
primary content of the learning is to stress that “courts are different.” They are
relatively nonpolitical, and judges make decisions on the basis of principled
criteria—impartiality, for instance—without regard to self-interest (even the
self-interest of being reelected or reappointed). This knowledge predisposes
people to accept the viewpoint that courts have a distinctive role in a democ-
racy and that role is not necessarily to mollify the preferences of the majority.
The reason democratic values and court support are so closely connected is
that supporting a court—an institution that often tells the majority that it
cannot do that which it very much wants to do—requires a relatively sophis-
ticated understanding of democratic theory.31 As it turns out, a reasonable
number of Americans understand this, and therefore support for the Court is
quite high.32
VI. Discussion
An important finding of this research is that the U.S. Supreme Court is
widely supported by the American people, and that support has little to do
with ideology or partisanship. Instead, loyalty toward the institution is
grounded in broader commitments to democratic institutions and processes,
and more generally in knowledge of the role of the judiciary in the American
31I suspect that the strong correlation between attitudes toward the party system and Court
support actually has little to do with political parties per se. Those who support a multiparty
system are rejecting the sort of knee-jerk anti-party reaction that is common in American society.
To support parties in the current context in the United States requires at least the implicit
understanding that “modern democracy is unthinkable save in terms of political parties,” even
if the respondents have never heard of Schattschneider (1942:1).
32In an earlier analysis of data from 1987, Caldeira and Gibson (1992) discovered significant
differences in how opinion leaders formed their attitudes toward the Supreme Court. In
particular, their support for the Court seemed to be more highly conditional on policy agree-
ment. I have explored this issue in these data, but, with fewer than 75 respondents claiming to
be opinion leaders, the analysis is not stable enough to warrant much attention. Nonetheless, in
these limited data it appears that the views of opinion leaders are not more closely connected to
policy views than they are among the mass public as a whole. Nor are partisan and ideological
identifications in any way connected to loyalty toward the Court. If anything, the views of
opinion leaders are more solidly grounded in their attitudes toward democratic institutions and
processes. As I note, these results must be treated as highly tentative in light of the relatively
small number of opinion leaders included in the sample.
532 Gibson
democratic system. Perhaps one of the most unconventional findings of this
research is that knowledge of the structure and function of the Supreme
Court is fairly widespread within the mass public.
These findings thus reinforce rather than challenge existing research on
public attitudes toward the Court. That this is so is the most important finding
of this research, given strong reasons for expecting otherwise. Although the
American people are severely divided on many important issues of public
policy, when it comes to the institution itself, support for the Court has little
if anything to do with ideology and partisanship. Liberals trust the Court at
roughly the same level as conservatives; Democrats and Republicans hold the
Supreme Court in similar regard. I do not argue that different people do not
have different expectations and evaluations of Court-made policy: liberals and
conservatives unquestionably differ in their preferences for how the Supreme
Court should decide important issues of public policy. But as yet, the legiti-
macy of the Court has not been threatened by the divisions over public policy.
Even the most contentious of issues—such as those decided in Bush v. Gore or
abortion rights—seem not to have undermined public confidence in the
Supreme Court as an institution. It has been suggested elsewhere that this
is a function of so-called positivity bias (e.g., Gibson et al. 2003a; Gibson &
Caldeira 2006)—the tendency of any exposure to the Court and its symbols to
produce and/or reinforce positive feelings toward the institution—but assess-
ing that theory goes beyond the purpose of this article.
From the analysis presented here, it appears that the Supreme Court
has sufficient institutional legitimacy to be able to continue to perform its
assigned role within the American democratic scheme, even within the
context of deep substantive divisions within the American mass public.
Whether this will remain so is unclear, especially if the Supreme Court takes
a dramatically rightward shift in its policy outputs (as many expect it will). As
African Americans have shown us, even obdurate loyalty toward an institu-
tion can indeed wither away. But at present, for those who worry about the
systemic consequences of sharp ideological divisions in American politics,
the findings of this analysis will surely provide some solace.
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Appendix:Measuring Support for Democratic
Institutions and Processes
I have measured support for democratic institutions and process as a multi-
dimensional meta-concept composed of four distinct subdimensions: (1)
political tolerance, (2) the relative value attached to social order versus
individual liberty, (3) support for the rule of law, and (4) support for a
multiparty system.
Table A.1 reports the factor structure resulting from a common factor
analysis with oblique (biquartimin) rotation.
As hypothesized, a four-dimensional solution emerged from the factor
analysis. With only two somewhat minor exceptions, each item strongly
loaded on the factor on which it was expected to load. In the two exceptions
(a rule of law item and a newly created measure of support for individual
liberty), the highest loading of the variable is on the hypothesized factor,
even if the loading is less than 0.30. I have not excluded these items from the
factor analysis but, given their factor loadings, their contribution to the
measurement of the construct is small.
The factors are themselves intercorrelated (as they should be). One
consequence of this, however, is that multicollinearity exists. The correlation
between political tolerance and support for individual liberty is 0.54; support
for a multiparty system is correlated with individual liberty at 0.56. I have
resisted the temptation to reduce this four-dimensional structure to a single
measure of support for democratic institutions and processes since one of
the most important subscales I wish to analyze is support for the rule of law,
and this factor is only weakly correlated with political tolerance and support
for individual liberty (although it is strongly correlated with support for a
multiparty system). Therefore, in the analysis of this article, I incorporate
measures of each of these subdimensions of support for democratic institu-
tions and processes within the equations predicting institutional loyalty.
Legitimacy of U.S. Supreme Court in a Polarized Polity 537
Table A.1: Support for Democratic Institutions and Processes
1. Political Tolerance 2. Multiparty System 3. Order vs. Liberty 4. Rule of Law
Rule of law10.67
Rule of law20.61
Rule of law30.41
Rule of law4[0.22]
Note: Entries shown are factor loadings from the pattern matrix. All loadings greater than or
equal to 0.30 are shown. When the loading of a variable on its hypothesized factor is less than
0.30, the coefficient is reported in brackets.
The items are:
Tolerance1: Members of the [GROUP X] should be allowed to a make a speech in our community.
Tolerance2: Members of the [GROUP X] should be allowed to hold public rallies and demonstrations
in our community.
Tolerance3: Members of the [GROUP Y] should be allowed to a make a speech in our community.
Tolerance4: Members of the [GROUP Y] should be allowed to hold public rallies and demonstrations
in our community.
Tolerance5: Members of the [GROUP X] should be banned from running for public office.
Tolerance6: Members of the [GROUP Y] should be banned from running for public office.
Party1: What our country needs is one political party which will rule the country.
Party2: The party that gets the support of the majority ought not to have to share political power with
the political minority.
Party3: Our country would be better off if we just outlaw all political parties.
Order1: It is better to live in an orderly society than to allow people so much freedom that they can
become disruptive.
Order2: Society shouldn’t have to put up with those who have political ideas that are extremely
different from the majority.
Order3: When America is at war, people should not criticize the government.
Order4: Free speech is just not worth it if it means that we have to put up with the danger to society
of extremist political views.
Order5: We are all better off if everyone is free to speak their mind in politics, even if some of things
people say are obnoxious and offensive.
Rule of law1: It is not necessary to obey a law you consider unjust.
Rule of law2: Sometimes it might be better to ignore the law and solve problems immediately rather
than wait for a legal solution.
Rule of law3: It is not necessary to obey the laws of a government that I did not vote for.
Rule of law4: The government should have some ability to bend the law in order to solve pressing social
and political problems.
538 Gibson
... In countries where vaccine mandates are written in law (as they are in Italy 20 ), we would expect to see strong associations between individual attachments to the rule of law and compliance with the vaccination contract. Legal scholars argue that attachments to the rule of law are core commitments that shape and inform other political attitudes and behaviors [33][34][35] . Those most committed to the rule of law 36 will be the most likely to comply, and those least committed will be the most likely to remain unvaccinated. ...
... Second, the relationships uncovered in the analysis of individual-level survey data are strictly associational. For example, while we have argued that the most likely interpretation of the strong inverse relationship between attachment to the rule of law and vaccination status is that the former, which literatures in judicial politics argue is an underlying core value 33,34 , influences the latter, the reverse is also possible. The decision to resist government calls to vaccinate may weaken attachments to the rule of law. ...
... To measure the strength of individual attachment to the rule of law, we used three survey items validated in cross-national settings 33 : "it is not necessary to obey a law you consider unjust"; "it is not necessary to obey the laws of a government I did not vote for"; and "the government should have some ability to bend the law in order to solve pressing social and political problems". Respondents evaluated each statement on a four-point scale ranging from strongly agree to strongly disagree. ...
Full-text available
Confronted with stalled vaccination efforts against COVID-19, many governments embraced mandates and other measures to incentivize vaccination that excluded the unvaccinated from aspects of social and economic life. Even still, many citizens remained unvaccinated. We advance a social contract framework for understanding who remains unvaccinated and why. We leverage both observational and individual-level survey evidence from Italy to study the relationship between vaccination status and social context, social trust, political partisanship, and adherence to core institutional structures such as the rule of law and collective commitments. We find that attitudes toward the rule of law and collective commitments outside the domain of vaccination are strongly associated with compliance with vaccine mandates and incentives. Partisanship also corresponds with vaccine behaviors, as supporters of parties whose leaders criticized aggressive policies to incentivize or mandate vaccination and emphasized individual liberty are least likely to comply. Our findings suggest appeals emphasizing individual benefits may be more effective than appeals emphasizing collective responsibility.
How does the public respond to court-packing attempts? Longstanding accounts of public support for courts suggest voters retaliate against incumbents who seek to manipulate well-respected courts. Yet incumbents might strategically frame their efforts in bureaucratic terms to minimize the public’s outcry or use court-packing proposals to activate a partisan base of support. Drawing on a series of survey experiments, we demonstrate that strategic politicians can minimize electoral backlash by couching court reform proposals in apolitical language, and institutional legitimacy’s shielding effect dissolves in the face of shared partisanship. These results shed new light on how ambitious politicians might avoid electoral consequences for efforts to bend the judiciary to their will.
This study investigates the effect of political orientation on public trust in Hong Kong’s courts. In measuring institutional legitimacy, the prior literature, predominantly written in the US context, largely focuses on the police force and demographic factors. Building on previous studies of the role of procedural fairness in determining the degree of institutional trust, this article contributes to a strand of developing literature which highlights how political ideology may color one’s views of legal authorities. Based on a 2020 survey on public trust in Hong Kong’s courts, this article presents a sobering portrayal of a hitherto “most trustworthy institution” in Hong Kong’s deeply polarized and rapidly changing political environment.
In the past two decades, democratically elected executives across the world have used their popularity to push for legislation that, over time, destroys systems of checks and balances, hinders free and fair elections, and undermines political rights and civil liberties. Using and abusing institutions and institutional reform, some executives have transformed their countries' democracies into competitive authoritarian regimes. Others, however, have failed to erode democracy. What explains these different outcomes? Resisting Backsliding answers this question. With a focus on the cases of Hugo Chávez in Venezuela and Alvaro Uribe in Colombia, the book shows that the strategies and goals of the opposition are key to understanding why some executives successfully erode democracy and others do not. By highlighting the role of the opposition, this book emphasizes the importance of agency for understanding democratic backsliding and shows that even weak oppositions can defeat strong potential autocrats.
This volume analyses the social and political forces that influence constitutions and the process of constitution making. It combines theoretical perspectives on the social and political foundations of constitutions with a range of detailed case studies from nineteen countries. In the first part leading scholars analyse and develop a range of theoretical perspectives, including constitutions as coordination devices, mission statements, contracts, products of domestic power play, transnational documents, and as reflection of the will of the people. In the second part these theories are examined through in-depth case studies of the social and political foundations of constitutions in countries such as Egypt, Nigeria, Japan, Romania, Bulgaria, New Zealand, Israel, Argentina and others. The result is a multidimensional study of constitutions as social phenomena and their interaction with other social phenomena.
Some of the nation's leading experts look at various aspects of election administration, including issues of ballot format, changes in registration procedures, the growth in the availability of absentee ballot rules and other forms of 'convenience voting', and changes in the technology used to record our votes. They also look at how the Bush v. Gore decision has been used by courts that monitor the election process and at the consequences of changes in practice for levels of invalid ballots, magnitude of racial disparities in voting, voter turnout, and access to the ballot by those living outside the United States. The editors, in their introduction, also consider the normative question of exactly what we want a voting system to do. An epilogue by two leading election law specialists looks at how election administration and election contest issues played out in the 2012 presidential election.
Some of the nation's leading experts look at various aspects of election administration, including issues of ballot format, changes in registration procedures, the growth in the availability of absentee ballot rules and other forms of 'convenience voting', and changes in the technology used to record our votes. They also look at how the Bush v. Gore decision has been used by courts that monitor the election process and at the consequences of changes in practice for levels of invalid ballots, magnitude of racial disparities in voting, voter turnout, and access to the ballot by those living outside the United States. The editors, in their introduction, also consider the normative question of exactly what we want a voting system to do. An epilogue by two leading election law specialists looks at how election administration and election contest issues played out in the 2012 presidential election.
This timely book describes and explains the American people's alleged hatred of their own branch of government, the US Congress. Intensive focus group sessions held across the country and a specially designed national survey indicate that much of the negativity is generated by popular perceptions of the processes of governing visible in Congress. John Hibbing and Elizabeth Theiss-Morse argue that, although the public is deeply disturbed by debate, compromise, delicate pace, the presence of interest groups, and the professionalization of politics, many of these traits are actually endemic to modern democratic government. Congress is an enemy of the public partially because it is so public. Calls for reform, such as term limitations, reflect the public's desire to attack these disliked features. But the authors conclude, the public's unwitting desire to reform democracy out of a democratic legislature is a cure more dangerous than the disease.
Gibson (1989) questions whether the Supreme Court's ability to legitimate unpopular policies is based on public views that the Court is a fair decisionmaker. His claim is based on his analysis of a survey examining the ability of the Supreme Court to gain acceptance of the right of an unpopular political group to demonstrate. A reanalysis of Gibson's data using a model allowing for both direct and indirect effects of public views about the fairness of court decisionmaking procedures on acceptance does not support Gibson's conclusion that procedure has no influence on acceptance. Our results indicate that public views about the fairness of Supreme Court decisionmaking procedures have an indirect effect on acceptance through their influence on public views about the Court's legitimacy and support the suggestion of a number of studies that the legitimacy of both local and national legal institutions, and the willingness to accept their decisions, are influenced by views about the fairness of their decision-making procedures.
We use competing propositions from the literature on institutional legitimacy and compliance to trace the sources of acceptance of, or the propensity to comply with, judicial decisions. Generally, institutions with a store of legitimacy are more successful at evoking acquiescence to their decisions. We expect willingness to accept an unpopular decision to be most prevalent among those who are strongly committed to the institution itself, who perceive the Court as using fair procedures to make its decisions, who are strongly attached to the rule of law, and who are neutral about the issue on which the Court has made a decision. Regression analysis of items from a survey of the mass publics in the twelve member-states of the European Union in fall 1992. The European Court of Justice does not have an extensive store of good will among ordinary citizens of the European Union. Few people are willing to accept a Court of Justice decision they find objectionable. There is, however, a moderately strong relationship between legitimacy--i.e., diffuse support--and acceptance. Perceptions of procedural justice play little role in the process, although basic legal values (e.g., attitudes toward the rule of law) contribute to acceptance within some countries. In general, our research demonstrates that legitimacy is important for acceptance and probably for compliance; and that the European Court of Justice must tend to what may be an emerging shortfall of legitimacy for the high bench of the European Union.