James L. Gibson is the Sidney W. Souers Professor of Government at Washington University in St. Louis. A Visiting Scholar the Foundation, Gibson is also the author of Overcoming Apartheid: Can Truth Reconcile A Divided Nation? and, most recently, Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy.
My Russell Sage project (jointly with Milton Lodge) begins with the observation of what’s known as the "judicialization of politics." This is a phenomenon that is worldwide in scope – courts are making highly salient, politically relevant, controversial decisions on issues that transcend the interests of private litigants in that they set public policy for the polity as a whole. Examples are easy to find: the Israeli high court rulings on the rights of settlers and Palestinians, the German constitutional court decision on whether religious crosses can be displayed in German classrooms, the decisions of high courts in the United States, Ukraine, and elsewhere, on the outcomes of elections, etcetera.
The judicialization of politics raises important issues of compliance with court decisions. Bereft of democratic accountability, the question these courts must confront is: why would citizens comply with or acquiesce to court decisions with which they disagree? As has been famously said in the American case, courts have neither the power of the purse nor of the sword. But even if courts had control over means of coercion and the resources to force citizens into compliance, the instrumental model of compliance (costs as compared to benefits) simply does not work very well, and, even if it did, it certainly is not very efficient. All institutions must rely upon some degree of voluntary compliance, the most efficient form of inducing compliance. Especially when citizens feel a normative obligation to comply with institutional decisions with which they disagree, the problem of acquiescence becomes manageable for political institutions.
Controversial Cases and Public Reaction
We know something about the normative bases of compliance from the research of Tom Tyler, who focuses on the influence of perceptions of procedural justice (e.g., when citizens are given the right to express their viewpoints in political disputes, they are more likely to accept unfavorable outcomes). But procedural justice can be thought of as a component of a larger theory of institutional legitimacy. Legitimacy Theory posits that people acquiesce to unwanted decisions because they believe the decision of an institution to be normatively appropriate; the institution has the "right" (sometimes called the "competence") to make binding decisions for the polity. Legitimacy generates a normative obligation to comply – because the institution is legitimate, its decisions must be accepted. Legitimacy Theory is becoming increasingly popular with nearly all of the social sciences, with even hardcore rational choice scientists paying considerable attention to this normative theory (e.g., institutionalists).
Examples of legitimacy in action are easy to identify, with the ruling of the U.S. Supreme Court on the contested 2000 presidential election in the U.S. being the "poster-child" for the theory. The Court’s decision in Bush v. Gore had all the potential to create an enormous backlash against the institution. The decision was of immense political importance; the ruling was deeply divided, with a split of 5 to 4 on the outcome; the divisions on the Court lined up well with the justices’ ideologies and partisanship; by most accounts, the decision was an “activist” one because it was not well-grounded in existing precedent; the crucial swing vote of Sandra Day O’Connor was tainted by comments she made at a cocktail party about preferring a Bush victory; and more than 500 law professors, many distinguished, openly challenged the legitimacy of the Court’s decision. If ever there were an instance of an institution needing voluntary acquiescence, Bush v. Gore was it.
It turns out that the U.S. Supreme Court decided the 2000 with impunity; it "got away with" its decision, even among Democrats. The Court ruled and opposition ended almost immediately. Factors other than legitimacy (e.g., fatigue, resignation) may also have contributed to the widespread acquiescence to the Court’s decision, but the Court’s institutional legitimacy undoubtedly played an important role as well.
Not all high courts around the world have been able to "get away with" controversial decisions. The building of the Nigerian constitutional court was attacked and burned after the court made a decision on an election outcome. The Bulgarian constitutional court had a long-running battle with the government, resulting in the government shutting off the electricity to the court’s building (and its elevators). The Pakistani high court is continually embroiled in conflicts with the government. And the South African constitutional court makes many decisions that are largely ignored. Thus, not every high court in the world has sufficient legitimacy to induce acquiescence to its unpopular decisions; significant variability exists in the ability of institutions to bring about voluntary compliance with their decisions.
It should be emphasized that this conception posits that legitimacy is for losers. That is, winners in litigation or in political disputes rarely question the basis of their winning. Instead, those who lose are most in need of reassurance that their losing is fair and appropriate, that it is legitimate. When the losers constitute the majority of the population, as sometimes happens when courts are called upon to protect the rights of minorities, it is especially crucial that some mechanism by which the losers will accept their losses is in place.
The Power of Judicial Symbols
I have put forth what I call the Positivity Theory as a key element of the legitimacy of courts. In a nutshell, this theory posits that any exposure to courts, even when coupled with negative decisions and outcomes, increases the legitimacy of the judiciary. Given that social psychologists have overwhelmingly found that negativity has greater influence than positivity, this theory requires careful explication.
It turns out that when people are exposed to courts they learn about more than just the decisions of the institution; they are also exposed to extremely powerful symbols of judicial authority. The judges’ robes (and in some parts of the world, the judges’ wig as well), the honorific forms of address ("your honor"), the elevated bench, Lady Justice, and the cathedral-like buildings in which many courts are housed all speak to those whose attention is given to court decisions. So when a citizen is watching the nightly news on T.V. or on the Internet, he or she may learn that the Supreme Court has made a "bad" decision, but this learning occurs in a context in which pictures of the Court’s building is shown, and, invariably, a picture of the justices in their robes accompanies the story. Reports on court decisions thus include more than a single message.
Returning to Bush v. Gore, press coverage of the Florida Supreme Court was raucous (to say the least). But when the media turned to the anticipated U.S. Supreme Court decision in the case, they sat outside the court building, speaking in hushed and deferential tones, as if awaiting the white smoke to merge from the Court indicating that a president had been selected. Those witnessing that scene, Democrats included, could not help but conclude that something special was going on, that politics as usual was not going on. Judicial symbols reinforce the idea that courts have the authority (not just the power) to decide important issues of public policy.
My new book – Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy (University of Chicago Press, 2012) – applies positivity theory to state courts in the U.S., most of which hold some form of election to select their judges. My research shows that even with all of the distasteful aspects of campaigning for public office – the campaign contributions, the use of attack ads, etc. – the overall effect of electing judges is to boost the legitimacy of courts. Citizens may not like campaign politics, but they do prefer that their judges be accountable to at least some degree for their decisions. Elections re-inform citizens of judicial accountability, as well as exposing citizens to the various symbols of judicial authority. Thus, the net effect of judicial elections is positive.
Positivity Theory has been around some time, and judicial scholars have come to accept it. However, the micro-foundations of the theory – the processes by which symbols actually influence people – have not been well understood – and that’s being generous. The theory has considerably more acceptance than is warranted from the micro-level evidence.
In another branch of political science, scholars have been working on the ways in which subliminal factors influence citizens. The work of Milton Lodge in particular on Motivated Reasoning and Hot Cognition offers great potential for understanding the processes by which judicial symbols influence people. Consequently, during their year together at the Russell Sage Foundation, Lodge and I will work on synthesizing Legitimacy Theory, Positivity Theory and the Theory of Motivated Reasoning.
Recent Books
