Posted by James L. Gibson, guest-blogging: Does Knowing What’s Under the Judicial Hood Threaten the Supreme Court’s Legitimacy? Part 2. http://volokh.com/archives/archive_2009_07_19-2009_07_25.shtml#1248335086
In Part 1 of this discussion I set out a conundrum grounded in earlier research on public attitudes toward courts: Either knowledge does not produce a realistic understanding of decision making, or legitimacy may not depend upon citizens being duped into believing in theories of mechanical jurisprudence and the myth of legality. Here, I provide some empirical evidence on these relationships, and offer a theory of how the American people can subscribe to the tenets of legal realism but nonetheless extend legitimacy to the U.S. Supreme Court. To summarize the problem: (1) The Supreme Court is an extremely legitimate institution in the eyes of the American people. (2) At the same time, most Americans believe that judges make law using their personal ideological and philosophical values. (3) In a democracy, discretionary policy-makers acquire legitimacy primarily through the accountability of the electoral process. (4) The unaccountable U.S. Supreme Court is different in that its legitimacy is found in how people understand discretion to be exercised. (5) Discretion can be exercised in a principled (sincere) or strategic (insincere) fashion. (6) Because the American people see the justices of the Supreme Court as exercising principled discretion, they support the institution. (7) Concomitantly, because Congress is seen as self-serving and strategic, that institution is held in lower regard. This analysis is based on a nationally representative sample of the American people. The paper from which these comments are drawn can be seen at http://polisci.wustl.edu/sub_page.php?s=3&m=0&d=7 ). (see the �Segal and Spaeth� paper). Thus, one of the most important questions this research seeks to answer is whether institutional support is undermined by holding a realistic understanding of the role of discretion and values-based decision making when it comes to the U.S. Supreme Court. How do the American people perceive decision making on the U.S. Supreme Court? One possibility is that most Americans accept the theory of mechanical jurisprudence. A century ago, Pound(1908) described mechanical jurisprudence as the perception that judges have little discretion in decision making; that law, not judicial philosophies, ideology, and partisanship, structure decision making; and that courts are distinctively non-political institutions. Believing in mechanical jurisprudence stands as a crucial linchpin in many theories of institutional legitimacy. After all, mechanical jurisprudence provides at least a partial answer to the quandary produced by the lack of any realistic political accountability in one of the most powerful policy making institutions in American democracy. If judges are making discretionary decisions based on their political ideologies, and are doing so without any serious mechanisms of accountability, then significant questions of democratic legitimacy arise. To the extent that judges are mechanically following the law, worries about legitimacy recede. We formulated several propositions about judicial decision making and asked our respondents to indicate their degree of agreement or disagreement with each. The first such statement has to do with discretion: Since the constitution must be updated to reflect society�s values as they exist today, Supreme Court judges have a great deal of leeway in their decisions, even when they claim to be �interpreting� the constitution. To this statement, 70.1 % agreed; thus, perceptions of available discretion in Supreme Court decision making are widespread. But on what basis do judges exercise their discretion? We offered three possibilities to the respondents: Judges always say that their decisions are based on the law and the Constitution, but in many cases, judges are really basing their decisions on their own personal beliefs. Judges� values and political views have little to do with how they decide cases before the Supreme Court. Judges� party affiliations have little to do with how they decide cases before the Supreme Court. Most Americans (61.9 %) agree that judges actually base their decisions on their own personal beliefs, even while a smaller majority (51.8 %) recognizes that values and political views influence how decisions are made. On the question of partisan influences on decision making, the balance of opinion changes, with a slim plurality believing that party affiliations have little to do with judges� decisions (47.4 % versus 43.8 %). In general, belief in the theory of mechanical jurisprudence is not particularly widespread in the U.S. Of the four statements concerning the exercise of discretion, on average, only 1.4 was endorsed by the respondents, with a median of only a single statement. Only 1.9 % of the sample subscribed to the theory of mechanical jurisprudence in response to all four of the propositions. Most Americans have a fairly realistic view of how Supreme Court justices make their decisions. Thus, from the responses to these questions, it appears that most Americans reject the mechanical jurisprudence model. Most believe that discretion exists, and that discretionary decisions are made on the basis of ideology and values, even if not strictly speaking on partisanship. At the same time, however, a majority of Americans � albeit a slim one (52.6 %) � reject the view that �Supreme Court judges are little more than politicians in robes.� Thus, for many, discretionary and value-based decision making does not constitute the essence of the politician�s function. Instead, something more is required. Acknowledging discretion and value-based decision making is distinct from viewing judges merely as politicians. The correlation between the four-item mechanical jurisprudence index and the belief that judges are politicians in robes is only .12. Those who believe that judges are politicians are more likely to perceive discretionary decision making, but those more likely to perceive discretionary decision making are not necessarily more likely to view judges as politicians. These findings suggest to us a typology based upon two factors: (1) whether judges are seen as having discretion and (2) whether the exercise of discretion is �political� or not. For the latter, we define �political� primarily in terms of whether discretion is exercised in a principled or self-serving or strategic fashion. We do so relying heavily on the work of Hibbing and Theiss-Morse (2001), who argue that disapproval of Congress is largely grounded in the perception that Members of Congress are typically advancing their self-interest above all else. Obviously, if people do not recognize discretion, then the question of how discretion is exercised is not relevant; we term this type the Mechanical Jurisprudence Model. The exercise of principled discretion is dubbed the �Judiciousness Model.� The �Typical Politician Model� describes self-interested decision making. We assume that the dominant view of American judges is the Judiciousness Model and that the most prevalent view of parliamentarians and executives is the Typical Politician Model. Thus, we posit three main types when it comes to perceptions of the judiciary: Those who perceive relatively high discretion but who believe that judges exercise discretion in a relatively principled fashion; those who see relatively high discretion but who believe that judges tend toward being strategic politicians of the ordinary sort; and those who perceive relatively low discretion as available to judges. According to our survey data, very roughly speaking, about one-fourth of the American people fall into each of these three categories, with the remaining one-fourth being uncertain and/or confused. The paper cited above provides some statistical evidence showing that (1) those who know more about the Supreme Court tend to extend more legitimacy to the institution. (2) Knowledge is belief in the tenets of Legal Realism, not Mechanical Jurisprudence. And (3) to believe in Legal Realism is not necessarily to accept the view that judges are just politicians in robes. With just a pinch of speculation, these empirical results make some sense. Knowledgeable respondents seem to have fairly complicated view of judging. They do not believe that the political views of the judges are irrelevant, and only a minority denies discretion in judicial decision-making, but at the same time they see judging as different from ordinary politics. Perhaps the key to understanding their views can be found in the item on whether leeway in constitutional interpretation exists. The leeway item was designed to measure perceptions of the availability of discretion in decision making. But perhaps that is not what the question is actually measuring. Among the most knowledgeable, responses to this item are completely uncorrelated with the other statements (maximum r = .05), with the exception of the statement about politicians in robes, where the correlation is .22. We suspect that at least some respondents viewed this statement as more about judges being disingenuous than about discretion. Perhaps these respondents are keying on the phrase �even when they claim to be �interpreting� the constitution.� Perhaps some view this as a statement about whether judges are strategic or not, in the sense of doing one thing but claiming to do another. The failure of this item to correlate with the other discretion questions, while having a positive correlation with the politicians in robes item, may indicate that this indicator is measuring perceptions of strategic and insincere activity on the part of judges. Perhaps the most important conclusion of this analysis is that the legitimacy of the U.S. Supreme Court does not depend on the perception that judges merely �apply� the law in some sort mechanical and discretionless process. The American people know that the justices of the Supreme Court exercise discretion in making their decisions � what better evidence of this fact is there than the multiple and divided judgments by the group of nine? They are also aware that the justices� discretion is guided by ideological and even partisan considerations, to at least some degree. None of these understandings seem to contribute to undermining the legitimacy of the Supreme Court. Instead, legitimacy seems to flow from the view that discretion is being exercised in a principled way. How do the American people discover that courts exercise discretion in a principled fashion? The answers can be found in both childhood socialization and the powerful symbols of judicial power. Americans learn from the earliest days of their civics education that the American political world is divided into the branches. Moreover, civics training attempts to reinforce the view that judges deal with law, not politics, and that judges typically are not politicians in the usual sense. Most schoolchildren come to appreciate that judges of the Supreme Court do something different from what the president or Congress does. This view that judging is different from politics is reinforced every time the citizen pays attention to the real world of judicial politics. Judges wear special dress, are shown extraordinary deference and respect, and they work in a building that often looks very similar to a temple. Citizens taught from civics courses that judges are different have that view reinforced every time the judiciary catches their attention. When citizens pay attention to courts, two things happen. First, they acquire information about the justices, the cases, and the institution. They may learn about personalities, about rulings in areas of interest, and about the structure and function of the institution. They therefore become more knowledgeable about the institution. The second lesson learned concerns the symbols of judicial power � these symbols teach that the judiciary is different from other political institutions. The two aspects of learning may or may not be connected to each other, but we posit that factual learning contributes to higher political knowledge and symbolic learning contributes to higher institutional support. Being informed about courts means that one understands that judges make decisions in a principled fashion. The mistake of some research is to assume that principled decision making can only be understood as discretionless or mechanical decision making. The most important argument of this paper is that the American people accept that judicial decision making can be discretionary, grounded in ideologies, but also principled and sincere. What the American people find detestable about political decision making is that it is strategic. The synonym for �strategic� is insincere; the reason why people distrust politicians is because they believe they are not sincere, they say and do what is useful and self-serving at the moment. The way that judges are different from ordinary politicians is that they are sincere, and their sincerity adds tremendously to their legitimacy and the legitimacy of their institution. So, in the end, the generation of political scientists who have taught their students Legal Realism and the Attitudinal Model of Segal and Spaeth seem to have done little to undermine the legitimacy of the Supreme Court. The American people seem capable of understanding the true nature of decision making on the Court, but at the same time regard the institution as highly legitimate within the American political scheme. Judges are certainly politicians; but what distinguishes judges in the minds of the American people is that judges exercise discretion in a principled fashion. Were other politicians to act more like judges, perhaps the legitimacy of all American political institutions would be elevated.
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