Compensation and Compliance: Sources of Public Acceptance of the U.K. Supreme Court's Brexit Decision

Published date01 September 2019
DOIhttp://doi.org/10.1111/lasr.12421
Date01 September 2019
Compensation and Compliance: Sources of Public
Acceptance of the U.K. Supreme Court’s Brexit
Decision
Ezequiel Gonzalez-Ocantos Elias Dinas
The perception that a high court’s decision is binding and final is a crucial
prerequisite for its ability to settle political conflicts. Under what conditions
are citizens more likely to accept controversial judicial rulings? Mass accep-
tance is determined, in part, by how rulings are framed during public
debate. This paper takes a broad view of the strategies and actors that influ-
ence the discursive environment surrounding judgments, calling attention to
hitherto unexamined determinants of mass acceptance. We theorize that
third parties can boost acceptance by pledging compliance, and that courts
can moderate opposition by compensating losers. We also look at how popu-
list attacks on judiciaries, common in contemporary democracies, affect
acceptance. We test these propositions using a survey experiment conducted
in the aftermath of the UK Supreme Court’s Brexit decision, the most salient
judgment handed down by this court to date. The paper moves the litera-
ture on courts and public opinion beyond the United States, and presents
evidence backing largely untested assumptions at the heart of modelsof judi-
cial behavior regarding the benefits of crafting rulings with an eye on the
preferences of key audiences.
On January 24, 2017, the highest court in the United King-
dom handed down a decision in what the Guardian called “the
most important constitutional case ever to be heard by the
Supreme Court.”
1
In June of the previous year, a private claimant
had thrown a lower court into the muddy waters of the Brexit
saga, demanding that Theresa May’s Conservative government be
forced to seek parliamentary approval before triggering the pro-
cess that will eventually culminate with Britain’s exit from the
European Union—approval the Prime Minister had hitherto
insisted was not necessary. After these judges ruled against the
government, tabloids accused them of being “enemies of the
The authors would like to thank Matthew Broad, Geoffrey Evans, Catherine De Vries,
Chris Hanretty, Iain McLean, Juan Pablo Rud, Luis Schiumerini, James Tilly, participants
at Oxford’s Politics Symposium, six anonymous reviewers, and the editors of the Law &
Society Review for excellent comments on previous versions of the manuscript.
Please direct all correspondence to Ezequiel Gonzalez-Ocantos, Department of
Politics and International Relations, University of Oxford, Oxford, United Kingdom.
e-mail: ezequiel.gonzalez@politics.ox.ac.uk
1
Guardian, 23/01/2017, goo.gl/i1FvZy (last accessed 02/03/2017).
Law & Society Review, Volume 53, Number 3 (2019): 889–919
©2019 Law and Society Association. All rights reserved.
889
people.”
2
The Supreme Court subsequently upheld the judg-
ment, and was attacked and praised in equal measure by the two
sides of the debate. Under what conditions are citizens more likely
to accept controversial rulings such as this one as final and bind-
ing? Do the characteristics of court outcomes as well as the reac-
tion of important institutional players condition acceptance?
Judicial politics scholars define acceptance as the decision to
acquiesce to a judgment, “cease opposition and get on with poli-
tics” (Gibson et al. 2005: 188). Acceptance speaks to the ability of
judges to function as arbiters, “settle political conflicts, or at least
make it more difficult for opposition to continue to mobilize”
(Gibson and Caldeira 1995: 466). As “the least dangerous
branch,” courts rely on the belief that they can legitimately hand
down authoritative, binding, and final decisions as “a critical indi-
rect path towards compliance” (Caldeira 1986; Nicholson and
Hansford 2014: 621; Tyler 1984). Importantly, should judges
upset powerful legislative or executive actors, mass acceptance of
rulings provides an important source of leverage because it com-
plicates efforts by political entrepreneurs wishing to engineer
backlash against judicial institutions (Helmke and Staton 2011;
Vanberg 2001, 2005).
3
But even if backlash in the form of out-
right disobedience or proposals to weaken judicial prerogatives
does not materialize in the wake of controversial rulings, mass
acceptance is still important for the long-term development of
courts’ legitimacy. Acceptance of specific rulings is part of the run-
ning tally that leads citizens to build a “reservoir of goodwill”
toward the judiciary, which is a form of institutional loyalty that
“embodies the notion that failure to make policy pleasing in the
short-term does not necessarily undermine the basic commitment
to support the institution” (Gibson et al. 2005: 189). At a more
basic level, studying mass acceptance allows us to see how the
public views one of the key decision makers in the political system
and its prerogatives. For example, is the public willing to enter-
tain, contrary to what is stipulated in law, that Supreme Court
decisions are not final and binding?
Acceptance of specific judgments is shaped by the way in
which judicial behavior is framed during the public debate
(Gibson and Caldeira 2009; Gibson et al. 2005; Hoekstra 1995;
Nicholson and Howard 2003). Framing strategies encourage
2
Daily Mail, 03/11/2016, goo.gl/ay0Kz5 (last accessed 02/03/2017).
3
For example, popular rejection of a pro-same sex marriage ruling handed down
by the Inter-American Court of Human Rights spurred an unprecedented backlash
against the court in Costa Rica, an otherwise progressive and sable democracy. Backlash
was capitalized and fueled by a far-right populist outsider, who almost won the 2018 pres-
idential race. BBC News, 05/02/2018, goo.gl/7MVwRK (last accessed 08/05/2018).
890 Compensation and Compliance

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