Amy Coney Barrett is Not Enough: How Descriptive and Substantive Representation Shape Trust and Legitimacy of the Federal Courts

• Published date: 01 December 2024
• DOI: http://doi.org/10.1177/10659129241262340
• Author: Philip Chen,Amanda Savage
• Date: 01 December 2024

Article

Political Research Quarterly

2024, Vol. 77(4) 1110–1129

© The Author(s) 2024

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DOI: 10.1177/10659129241262340

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Amy Coney Barrett is Not Enough: How

Descriptive and Substantive

Representation Shape Trust and

Legitimacy of the Federal Courts

Philip Chenand Amanda Savage

Abstract

Public trust and perceptions of institutional legitimacy are vital to the functioning of the federal court system, and recent

work challenges the long-standing belief that these attitudes are relatively stable in the populace . We posit that one threat

to perceptions of trust and legitimacy is the lack of representation for women in the federal judiciary. Using a series of

experiments, we show that, while women desire descriptive representation, this is an insuff‌icient condition for pre-

serving support for the institution. Substantive representation on issues critical to women leads to signif‌icantly increased

trust and legitimacy and lowered perceptions of institutional bias among women. While female judges may bring their

own social identities to bear in their decision-making, our work suggests that efforts to diversify the federal judiciary,

while important, are unlikely to bolster public support for the courts if the new judges and justices fail to substantively

represent the communities of interest.

Keywords

federal courts, gender, representation, support, trust

Introduction

On February 25, 2022 when President Biden announced

the nominationof Ketanji Brown Jackson to replaceJustice

Stephen Breyer on the Supreme Court he touted her ex-

perience, her expertise in the law and notably, the historic

status ofher appointment. Brown Jacksonwould be the f‌irst

Black woman ever to sit on the US Supreme Court. While

never mentioningher race specif‌ically, Biden proclaimedin

the speech “For too long, our government, our courts

haven’tlooked like America. And I believe it’stimethatwe

have a Court that ref‌lects the full talents and greatness of

our nation with a nominee of extraordinary qualif‌ications

and that we inspireall young people to believe that they can

1 day serve theircountry at the highest level”(Biden2022).

Biden’s emphasis on diversifying the Court to include a

Black woman was long established. He had famously

promised, exactly 2 years before on February 25, 2020, in

one of the last Democratic presidential primary debates,

that he would do so, stating “I’m looking forward to

making sure there’s aBlack woman on the SupremeCourt,

to make sure we in fact get …representation.”

Biden’s explicit and specif‌ic focus on the race and

gender of his nominee is far from new. Nominees

Thurgood Marshall, Sandra Day O’Connor, and Sonia

Sotomayor were all publicly touted for the diversity and

representation they would bring to the High Court. In-

deed, presidents often emphasize demographics as an

important reason why both a nominee was chosen and

why their conf‌irmation was essential. In her important

book on presidential selection of Supreme Court nomi-

nees, Nemacheck (2008) found that demographic char-

acteristics of a nominee are one of the primary

characteristics presidents consider when making their

selections.

University of Denver, Denver, CO, USA

Loyola University Chicago, Chicago, IL, USA

Corresponding Author:

Philip Chen, Department of Political Science, University of Denver,

Sturm Hall 474, 2000 E. Asbury Ave, Denver, CO 80208, USA.

Email: philip.chen@du.edu

While there are surely many reasons presidents might

emphasize the importance of diversity on the Supreme

Court, one of the most salient is the conventional wisdom

that as the Court more closely represents the make-up of

the country, its decisions will be viewed as more legiti-

mate by a wider swath of that country’s citizens. Judge

Richard Posner explained, “The nation contains such a

diversity of moral and political thinking that the judiciary,

if it is to retain its effectiveness, its legitimacy, has to be

heterogeneous,”(2005, 94). Federal district court Judge

Edward Chen likewise wrote, “It is the business of the

courts…to dispense justice fairly and administer the laws

equally…How can the public have conf‌idence and trust in

such an institution if it is segregated —if the communities

it is supposed to protect are excluded from its ranks?”

(Bannon and Keith 2022)

The conventional wisdom is clear: judicial identity

matters (Robinson 2021).

1

And it matters, at least in part,

because having a diverse institution can enhance the le-

gitimacy of that institution. However, there are reasons to

call that conventional wisdom into question. For instance,

a 2009 Quinnipiac poll asked respondents, “Do you think

making the Supreme Court look like the rest of the nation

in terms of race, religion, ethnicity, and gender is more

important than a justice’s legal qualif‌ications for the job,

less important or about as important?”Sixty percent re-

sponded descriptive representation should be less im-

portant than qualif‌ications while only eight percent

responded it should be more important (Quinnipiac

University 2009). Moreover, scholars have increasingly

noted the importance of political and ideological con-

gruence in how people view the Court’s legitimacy

(Bartels and Johnston 2020). It is possible, then, that there

is a disconnect between what decision-makers believe

affects support for the Court (e.g., the descriptive traits

they emphasize about their nominees) and what people

actually use to evaluate the Court: whether it issues de-

cisions they personally agree with.

We attempt to resolve that disconnect using a series of

survey experiments.

2

Fundamentally, we explore how

descriptive and substantive representation on the courts

affects support for them and perceptions of judicial le-

gitimacy. We are especially interested in how the mar-

ginalized groups who are most targeted in attempts to

diversify the courts respond to those attempts.

3

Here, we

focus on reactions of women to decisions that could di-

rectly affect them including abortion, insurance coverage

for contraception, pregnancy discrimination, and equal

pay and ask whether those decisions, and ultimately the

courts themselves, are viewed as more legitimate when

those decisions are issued by a female vs. a male judge.

Our key innovation, however, is that we vary the outcome

of the decision, which allows us to directly compare the

effect of substantive (ideological or group-based)

representation to descriptive representation on legitimacy,

trust, and support. We begin by exploring the dynamics of

descriptive and substantive representation and how we

expect them to affect perceptions of judicial legitimacy.

Contrary to conventional wisdom, we f‌ind that descriptive

representation, absent substantive representation, does

little to insulate a court’s legitimacy from unpopular

decisions.

Descriptive and

Substantive Representation

Political scientists have long been interested in the rep-

resentation of the citizenry by politicians. Pitkin (1967)

laid the groundwork for decades of research with her

def‌initions of descriptive and symbolic representation,

while scholars like Mansbridge (1999,2003) detailed the

important representational benef‌its derived by marginal-

ized groups from increased descriptive representation in

Congress.

Importantly, there is strong evidence to suggest that

descriptive representation (that is, being represented by

somebody who shares important social group character-

istics with you, such as race, ethnicity, or gender) can

bolster a variety of political attitudes and behaviors, over

and above the effects of substantive representation

(having your policy preferences represented). These

benef‌its include beliefs that the legislative process is fair

(Hayes and Hibbing 2017), greater external political ef-

f‌icacy (Atkeson and Carrillo 2007), and higher turnout

among underrepresented groups (Rocha et al., 2010;

Whitby 2007).

4

These studies provide empirical support

to Mansbridge’s (1999) “contingent”yes to the question

of whether descriptive representation provides benef‌its

over and above substantive representation.

Although the literature on representation in Congress is

extensive (see, for example, Bengtsson and Wass 2010;

Fox and Shotts 2009;Lowande, Ritchie, and Lauterbach

2019;Mansbridge 2011;Rehfeld 2009), the literature is

far more limited in terms of the federal judiciary. While

conventional wisdom suggests presidents account for

demographics such as race and gender when deciding who

to appoint to Supreme Court seats, the evidence is more

mixed on whether this type of descriptive representation

matters. Sen (2017), for example, f‌inds that the public’s

most important characteristic when evaluating nominees

is partisanship, not race or gender. Only when partisan

leanings are absent does the public begin to rely on de-

mographic cues to decide levels of support and trust in a

nominee.

In contrast, Evans et al. (2017), using the Sotomayor

nomination as evidence, f‌ind increased support for the

Supreme Court among Latinos, while Whites did not react

Chen and Savage1111