Using judicial performance evaluations to supplement inappropriate voter cues and enhance judicial legitimacy.

• Author: White, Penny J.
• Position: Symposium: Mulling Over the Missouri Plan: A Review of State Judicial Selection and Retention Systems

1. INTRODUCTION

   Justice John Paul Stevens once noted that "[i]t is the confidence in the men and women who administer justice that is the true backbone of the rule of law." (1) This confidence gives legitimacy to courts at every level. But how is such confidence to be achieved and maintained? How do we instill trust and confidence in the judiciary in those members of the public with little knowledge of the court system or those who attain their knowledge from questionable sources? What kinds of information can be used to counterbalance the denigrating effect of judicial campaigns? This Article suggests that judicial performance evaluations, which meaningfully measure the traits that are essential to good judging, can serve to better inform the public of the role of the judiciary and to promote public trust and confidence in the courts.

   The purpose of this Article is not to distill all of the complex factors that enter into measuring the public's perception of state courts. Rather, its purpose is to consider how institutional legitimacy is likely affected by various cues and signals that the public receives about the judiciary. This Article also considers whether critically designed, appropriately administered, and widely disseminated judicial performance evaluations might supplement misleading cues. To that end, following an introductory section on institutional legitimacy, Section III discusses the effects of knowledge, goodwill, and judicial campaigns on the public's perception of the judiciary. Section IV focuses on how the tactics used by judicial campaigns send cues that undermine the public's trust in the judiciary. The last section discusses how more meaningful cues--particularly the results of valid judicial performance evaluation programs--can be used to inform the public and legitimize the judiciary.

2. STATE COURTS: INSTITUTIONAL LEGITIMACY, IMPARTIALITY, AND INDEPENDENCE

   The public's trust, confidence, and understanding of the courts all play an essential role in preserving their unique and independent character in our system of government. Like any institution, courts need public support and participation to maintain their institutional legitimacy. (2) Institutional legitimacy has two components: the willingness of the public to accept and defer to the institution's judgment and the willingness of the public to participate in the institution. (3) To the extent state courts are viewed as legitimate government institutions, they remain viable dispute resolution systems, which command respect and deference and help to ensure stability and order. A loss of legitimacy leads to less peaceful dispute resolution and social and economic chaos. (4) Thus, it is essential not only to evaluate the legitimacy of state judicial systems but also to foster it.

   Most scholars who seek to measure the legitimacy of court systems focus on three aspects: confidence in the system's lawfulness, perception of the system's impartiality, and assessment of the system's propriety. (5) When the public's opinion of these three aspects of legitimacy is low, the institution's vitality and viability suffer. Conversely, when public perception is high, public trust and confidence is high. Moreover, a confident and trusting public more readily accepts the necessity for an independent judiciary. (6)

   While this Article does not undertake an exhaustive review of all factors that affect public perception of the courts, some of the research findings about public perception are highly relevant. Research indicates, for example, that the perception of, and thus respect for, the judiciary is influenced not only by the nature of the outcome of its work--that is, the public's agreement or disagreement with court decisions--but also by the degree to which the system is perceived to be procedurally and substantively fair. (7) Thus, institutions that are perceived to exercise their authority with both procedural and substantive fairness have a higher degree of legitimacy than those perceived to use unfair processes to reach unfair results. While substantive fairness may be intertwined with respect for or agreement with the outcome, procedural fairness is an important aspect of legitimacy even among those who disagree with the outcome. (8) Thus, even when courts render decisions that are disfavored, they may retain legitimacy by being perceived as procedurally fair. (9)

   The key to a perception of procedural fairness is impartiality. Thus, for example, when individuals evaluate an institution's degree of procedural fairness, they are "'especially influenced by evidence of even-handedness, factuality, and the lack of bias or favoritism (neutrality)'--in short, by impartiality." (10) It follows, then, that impartiality is the lifeblood of judicial legitimacy. (11) Any aspect of the judicial system that detracts from a perception of impartiality should be avoided or eliminated in order to sustain and foster judicial legitimacy. (12)

   Because of the essential role that the perception of impartiality plays in the legitimacy of the courts, what contributes to, and detracts from, the perception of impartiality becomes very significant. But neither people nor their perceptions are homogeneous. Individuals have different backgrounds that influence their perceptions about governmental institutions in general; accordingly, their perceptions of the courts are varied and distinct. People also have various degrees of knowledge about the court system. In addition, individuals have different amounts of goodwill, or "diffuse support," (13) for the court system. Their backgrounds, degree of knowledge, and level of goodwill affect their perception of judicial impartiality and, in turn, their respect for the judiciary.

3. EFFECTS OF KNOWLEDGE AND GOODWILL ON PERCEPTIONS OF THE COURT SYSTEM

   It is well established that the general public has an absence of knowledge about and lack of understanding of the justice system. (14) In 1977, the National Center for State Courts conducted a survey aimed at measuring the public's opinion of state courts. (15) The survey, and others following it, found that in addition to having a low level of confidence in state court systems, the public also had a low level of knowledge about state courts.16 These findings spawned a large number of court improvement projects aimed at promoting public trust and confidence in state courts. (17)

   Twenty-two years later the American Bar Association (ABA) surveyed the nation (18) to "[a]ssess the public's current understanding of the justice system; [i]dentify the public's current attitudes toward the justice system; [u]nderstand what drives those attitudes; and [i]dentify the key sources of information about and knowledge of the justice system." (19) This survey, unlike its predecessor, revealed increased respect for the system (20) but reiterated a lack of knowledge about its function and some of its basic tenets. (21) Notably, respondents were asked to identify the function of the three branches of government using the responses "make laws," "interpret laws," "enforce laws," or "don't know." More people responded incorrectly that the function of the judicial branch was to "make" or "enforce" the laws than responded correctly. (22)

   1. Effect of Demographics and Knowledge on Perception

      1. Effect of Demographics on Perception

         An individual's socioeconomic background affects his or her level of confidence in the courts. Consistent with earlier findings, the ABA study and subsequent studies disclose that males in higher socioeconomic groups have greater confidence in the justice system. (23) All other groups--women, nonwhites, and people with lower incomes--have less confidence in the court system. (24) These groups believe that the justice system is not impartial; it does not "treat all people equally." (25) The disparity in treatment is believed to be diffuse between men and women, among racial and ethnic groups, and between rich and poor. (26)

      2. Effect of Knowledge on Perception

         In addition to the survey's findings that a substantial number of people in many different groups do not view the justice system as impartial, two other findings are significant to an assessment of how knowledge about the system influences perceptions of it. First, those with a greater understanding of and experience with the justice system are more confident in it. (27) Second, those with less knowledge are not only less confident in the system but are also more readily influenced by the least reliable information sources. (28)

         Just as knowledge level is uneven, depth of knowledge is also uneven. Those with the least amount of knowledge about the courts are less likely to distinguish the courts from other branches of government. (29) Since people do not instinctively appreciate that courts must be independent to discharge their duties, it follows that those with the least amount of knowledge will have the greatest difficulty embracing this distinction and, in turn, the judiciary's uniqueness as a governmental institution. (30)

      3. Sources of Knowledge

         The 1999 ABA study also surveyed the sources of individuals' knowledge of the court system and the relative importance of each source. (31) A majority of people listed education as their primary source of information. (32) While most states include instruction about the judiciary as a part of their social studies curriculum, what is a part of the curriculum does not always translate into what is taught in the classroom, making it impossible to predict what exposure the average student has to the judiciary. (33) Nonetheless, statutes in many states require public and private schools to include instruction on American history, government, and federal and state constitutions; (34) some states also require instruction on federal and state "institutions." (35)

         State departments of education provide an overview of grade-level expectations in social studies. (36) These...