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

Date01 December 2015
Published date01 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: or Christopher Weaver, Department of Political Science,
University of Notre Dame, 217 O’Shaughnessy Hall, Notre Dame, IN 46556; e-mail:
Law & Society Review, Volume 49, Number 4 (2015)
C2015 Law and Society Association. All rights reserved.
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

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