Dissent, Legitimacy, and Public Support for Court Decisions: Evidence from a Survey‐Based Experiment

• DOI: http://doi.org/10.1111/lasr.12402
• Date: 01 June 2019
• Published date: 01 June 2019

Dissent, Legitimacy, and Public Support for Court

Decisions: Evidence from a Survey-Based

Experiment

Henrik Litlere

´Bentsen

Scholars often argue that whereas unanimous rulings should boost public

support for court decisions, dissents should fuel public opposition. Previous

studies on public responses to U.S. Supreme Court decisions suggest that

unanimity does in fact bolster support. However, a recent study has also

found that dissents may increase support among opponents of a court deci-

sion by suggesting evidence of procedural justice. By examining how indi-

viduals react to dissents from the Supreme Court of Norway, this article is

the first study outside the U.S. context of the public’s reaction to unanimity

and dissent. Breaking with the common notion of the negative effects of dis-

sent on public support, the article shows that when the Supreme Court han-

dles cases of higher political salience, the formulation of dissenting opinions

can be a meaningful way of securing greater support for its policy outputs by

suggesting evidence of procedural justice. Contrary to recent studies, how-

ever, this positive influence of dissent is irrespective of individuals’ ex ante

policy views.

Armed with powers of constitutional review, European high

courts have experienced increased political significance (Sweet

2000, 1992, 2002, Tate and Vallinder 1995). The judicialization of

European politics has involved an expansion of the power of

courts and judges in determining public policy outcomes, mainly

through judgments pertaining to individual rights’ protection or

the limits of legislative or executive powers (Hirschl 2009). Conse-

quently, it is of increasing importance to understand the factors

that influence public support or opposition to court decisions.

The extent to which justices agree or disagree on the solution

of a case has often been hypothesized as influencing public sup-

port.

1

Justices and judicial scholars frequently argue that whereas

unanimity should boost public support for court decisions, dissent

should fuel public opposition (for an overview, see Salamone

Please direct all correspondence to Henrik Litlere

´Bentsen, Department of Compar-

ative Politics, University of Bergen, Christies Gate 15, 5054 Bergen, Norway; e-mail:

henrik.bentsen@uib.no.

1

Terms like “support,” “acquiescence,” “confidence,” and “legitimacy” are used

interchangeably throughout the article depending on the terms used in the relevant

literature.

Law & Society Review, Volume 53, Number 2 (2019): 588–610

©2019 Law and Society Association. All rights reserved.

588

2014, Zink et al. 2009). This alleged negative relationship between

dissent and the courts’ standing with the public has been one of

the reasons why some European constitutional courts used to

(or still do) prohibit the publication of dissenting opinions

(Kelemen 2018) and that, for those courts that publish dissents,

norms of consensus have tended to suppress the formalization

of conflicting opinions in an effort to bolster legitimacy

(e.g., Hendershot et al. 2013, Walker et al. 1988).

Despite the presumed harmful effect of judicial dissent on

public support, only a handful of empirical studies from the

United States exist on this relationship. The results of these stud-

ies are also inconsistent. Whereas some studies show no effect of

unanimity or dissent on public opinion (Gibson et al. 2005, Mar-

shall 1987, Peterson 1981), other studies suggest that unanimity

does in fact bolster support (Zink et al. 2009). In a recent study,

however, Salamone (2014) breaks with the accepted notions in the

literature and argues that dissents may help increase support of

issues of higher salience among the court’s policy opponents by

suggesting evidence of procedural justice. Hence, the dynamics of

how dissent might influence public support appear contingent

upon individuals’ preexisting attitudes toward the issues at stake.

This article expands upon the existing research on the rela-

tionship between judicial dissent and popular support through a

series of original survey-based experiments using a nationally rep-

resentative sample of Norway’s population. The Norwegian

Supreme Court offers a relevant and testable European case on

the relationship between courts and their citizenry. Unlike several

of its European counterparts, the Supreme Court has made indi-

vidual justice opinions and dissents open to the public since 1863

(Mestad 2015, stlid 1955). Today, one in five decisions from the

court involves one or more dissenting opinions. In addition, dur-

ing the last few decades, the Supreme Court has emerged as a

more prominent and consequential policy maker in the Norwe-

gian judicial and political system (e.g., Grendstad et al. 2015). We

should thus expect the Court to have a greater ability to shape

public opinion on issues of national interest. Understanding the

potential role dissents play in shaping public opinion and support

is an important aspect in this regard.

This article examines the relationship between dissent and

public support through a series of vignette experiments covering

three fictitious Supreme Court decisions on issues that represent

a range of legal and political salience among the Norwegian pub-

lic: (1) a high-salience asylum decision concerning residence per-

mits for children of illegal immigrants, (2) a medium-salience

workplace-privacy decision concerning an employer’s right to

read email and text messages on phones provided by the

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