Faith in the Court: Religious Out‐Groups and the Perceived Legitimacy of Judicial Decisions

• Date: 01 December 2015
• DOI: http://doi.org/10.1111/lasr.12167
• Published date: 01 December 2015

Faith in the Court: Religious Out-Groups and the

Perceived Legitimacy of Judicial Decisions

Andre P. Audette Christopher L. Weaver

The question of whether judges’ personal characteristics and values bias their

decision making has long been debated, yet far less attention has been given

to how personal characteristics affect public perceptions of bias in their deci-

sion making. Even genuinely objective judges may be perceived as procedur-

ally biased by the public. We hypothesize that membership in a religious out-

group will elicit stronger public perceptions of biased decision making. Using

a survey experiment that varies a judge’s religious orientation and ruling in a

hypothetical Establishment Clause case, we find strong evidence that judges’

religious characteristics affect the perceived legitimacy of their decisions.

Identifying a judge as an atheist (a religious out-group) decreases trust in the

court, while identifying the judge as a committed Christian has no bearing on

legitimacy. These results are even stronger among respondents who report

attending church more often. Thus, we argue that perceptions of bias are con-

ditioned on judges’ in-group/out-group status.

Asubstantial amount of judicial behavior research is devoted

to the impact of judges’ personal preferences and attributes on

their decisions. Some scholars maintain that judges’ decisions are

guided more or less exclusively by legal considerations (Dworkin

1978; Gillman 2001), while others have argued that judges’ deci-

sions are heavily influenced by a variety of other factors, includ-

ing their political ideology, race, gender, age, religious

orientation, social connections, and even birth order (Baum

2006; Blake 2012; Boyd, Epstein, and Martin 2010; Collins and

Moyer 2008; Farhang and Wawro 2004; Heise and Sisk 1999;

McGuire 2013; Segal and Spaeth 1998; Sisk, Heise, and Morriss

1998; Songer, Davis, and Haire 1994; Yarnold 2000). Although

this debate is important in understanding and predicting judicial

A previous version of this article was presented at the 2015 Annual Meeting of the Mid-

west Political Science Association. The authors would like to thank Matthew Hall, Geoffrey

Layman, Amanda Bryan, the editors, and the anonymous reviewers for their helpful feed-

back on this research. Please direct all correspondence to Andre Audette, Department of

Political Science, University of Notre Dame, 217 O’Shaughnessy Hall, Notre Dame, IN

46556; e-mail: aaudette@nd.edu or Christopher Weaver, Department of Political Science,

University of Notre Dame, 217 O’Shaughnessy Hall, Notre Dame, IN 46556; e-mail:

cweaver4@nd.edu.

Law & Society Review, Volume 49, Number 4 (2015)

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C2015 Law and Society Association. All rights reserved.

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decisions, both sides overlook a crucial aspect of judicial decision

making: the perceptions of judges’ audiences. In addition to

understanding how judges make decisions, it is just as important

to understand how the public thinks judges make decisions. The

public’s perceptions of courts’ decisions need not correspond to

reality. Judges’ decisions are conveyed and interpreted by politi-

cians and pundits who further obscure the already opaque judi-

cial process. As a result, the question of whether a judge’s

personal biases actually play a role in the decision may have little

bearing on whether they are perceived as biasing the decision.

The public’s perceptions of decision making on the court can

also impact how decisions are made in the first place. Evidence

has shown that perceived bias in judicial decision making can

weaken the legitimacy of courts and legal institutions (Gibson

1989; Ramirez 2008). If legitimacy reaches a low enough level,

the court may have concerns about the non-implementation of its

decisions. Because courts control neither the purse nor the

sword, judges have an incentive to maintain a certain degree of

legitimacy, which may motivate them to act strategically to protect

the legitimacy of their decisions and the institution (e.g., Epstein

and Knight 1998). Among other methods of protecting legiti-

macy, avoiding the appearance of bias is an important considera-

tion of the court in maintaining their stature and ensuring

implementation of their decisions.

In this article, we examine the determinants of perceived bias

in courts’ decision making. In particular, we focus on the effect of

judges’ personal attributes on perceptions of bias and legitimacy.

Previous research has shown that personal attributes such as the

racial composition of courts can influence perceptions of legiti-

macy for racial in-group members (Scherer and Curry 2010). We

continue in this vein by measuring the direct effect of judicial

group attributes on perceptions of bias and legitimacy in a given

court case.

While a variety of factors may determine whether the public

perceives a court’s decision as biased, this article focuses on the

impact of judges’ membership in a societal out-group. Specifically,

we examine how the decisions of atheists, a religious out-group,

are perceived differently than those of Christians, a religious in-

group. The United States has become increasingly secularized

over the past few decades: in contrast to the small fraction of

Americans that were religiously unaffiliated in 1950, nearly one-

fifth of Americans today are unaffiliated with a religion (Putnam

and Campbell 2010). As portions of the American population

become more expressly nonreligious, it is important to understand

how their role in governing institutions affects perceptions of those

institutions. Although atheist identification has become more

1000 Faith in the Court