Lawyers' Perceptions of the U.S. Supreme Court: Is the Court a “Political” Institution?

• DOI: http://doi.org/10.1111/lasr.12154
• Published date: 01 September 2015
• Date: 01 September 2015

Lawyers’ Perceptions of the U.S. Supreme Court: Is

the Court a “Political” Institution?

Brandon L. Bartels

Christopher D. Johnston

Alyx Mark

Do legal elites—lawyers admitted to federal appellate bars—perceive the

Supreme Court as a “political” institution? Legal elites differentiate them-

selves from the mass public in the amount and sources of information about

the Court. They also hold near-universal perceptions of Court legitimacy, a

result we use to derive competing theoretical expectations regarding the

impact of ideological disagreement on various Court perceptions. Survey data

show that many legal elites perceive the Court as political in its decision mak-

ing, while a minority perceive the Court as activist and influenced by external

political forces. Ideological disagreement with the Court’s outputs signifi-

cantly elevates political perceptions of decision making, while it exhibits a null

and moderate impact on perceptions of activism and external political influ-

ence, respectively. To justify negative affect derived from ideological disagree-

ment, elites highlight the political aspects of the Court’s decision making

rather than engage in “global delegitimization” of the institution itself.

While numerous studies exist about how the mass public per-

ceives the U.S. Supreme Court, little is known about how elite

lawyers with specialized legal expertise and an acute understand-

ing of the U.S. Supreme Court perceive and assess the Court.

Among these “legal elites,” is the Court perceived as a political

and ideologically driven institution, as legalistic and capable of

objectively producing legal outputs, or something in between?

While Congress and the Presidency are often seen by members

of the mass public as divisive, ideologically polarizing, and uncivil,

conventional scholarly wisdom suggests that the Supreme Court

is seen as relatively more objective, legalistic, and above the politi-

cal fray. Since many Americans do not possess a thorough under-

standing of the Court’s policymaking, they are less aware of the

We thank David Fontana and Barry Friedman for helpful suggestions on a previous

version of this paper.

Please direct all correspondence to Brandon L. Bartels, Political Science, George

Washington University, 2115 G Street NW, Suite 440, Washington, DC 20052; e-mail:

bartels@gwu.edu

Law & Society Review, Volume 49, Number 3 (2015)

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C2015 Law and Society Association. All rights reserved.

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extent to which the Court can be political and ideological (e.g.,

Epstein and Knight 1998; Maltzman et al. 2000; Segal and

Spaeth 2002).

1

Given that legal elites—here, lawyers admitted to

federal appellate bars—do not suffer from similar informational

disadvantages, it is interesting in and of itself to analyze where

they fall along the “law versus politics” spectrum pertaining to

the Court. Legal elites are socialized to respect legal principles

and their application, but through professional practice and ele-

vated attention to what the Court is doing, legal elites experience

and observe the political nature of judicial decision making.

Moreover, we confront the following empirical foundation:

the legal elites studied in this article almost universally perceive

the Court as legitimate. Our theoretical innovation is to develop

competing models that could be the result of this characteristic.

On one hand, Gibson and Caldeira’s (2009a, 2009b) positivity

theory implies that strong pre-existing legitimacy orientations

may induce elites to hold near-universal apolitical perceptions of

the Court, which should hold regardless of ideological disagree-

ment with the Court’s policymaking. On the other hand, legiti-

macy and perceptions of the Court’s decision making and role in

government may be more separable for legal elites than for aver-

age citizens. A motivated reasoning perspective (e.g., Kunda

1990; Taber and Lodge 2006) implies that the more legal elites

disagree with the ideological direction of the Court’s policymak-

ing, the more “political” they will perceive the Court—including

how it makes decisions and its role in American politics. Percep-

tions of the Court’s decision making and role, but not legitimacy

orientations, are an outlet for disagreement with Court policymak-

ing. We test these competing models by analyzing survey data

from the 2005 Annenberg Supreme Court study, which is a

nationally representative survey of lawyers admitted to the U.S.

Supreme Court and Courts of Appeals bars.

Understanding how legal elites perceive the Court is valuable

for several reasons and possesses important sociolegal implications.

Since legal elites are opinion leaders and are in positions of influ-

ence as cue givers, we can gain insight into opinion dynamics by

explaining the foundations of elite attitudes toward the Court.

Legal elites possess more information about the Court than the

mass public. They also obtain information through different chan-

nels than even the most highly sophisticated masses; they not only

consume news about the Court but also participate in the legal

1

Research suggests that a meaningful segment of the public actually perceives the

Court in political and ideological terms (Bartels and Johnston 2012, 2013; Johnston and

Bartels 2010; Scheb and Lyons 2000) and does not see the Court as adopting a purely “legal

model” of decision making (Gibson and Caldeira 2011).

762 Lawyers’ Perceptions of the U.S. Supreme Court

process and are members of legal networks. As a result, the founda-

tions of their perceptions of the Court’s business will be more

informed.

Furthermore, beliefs about how the Court makes decisions

might also have an effect on how legal elites craft legal argu-

ments. This group may utilize information they possess about the

political nature of the Court’s decision making and role in gov-

ernment in order to develop more persuasive arguments. These

elites are also members of an important audience to the Court,

which is likely more inclined to pay more attention to their views

compared to the mass public (e.g., Baum 2006; Baum and Devins

2010; see Friedman 2009).

Finally, our study offers a rare opportunity to test models of

political judgment with an elite sample and to offer a general

examination of the extent to which motivated reasoning proc-

esses may be present even at the very upper tiers of the political

knowledge distribution. This is important because questions

remain about the extent to which prima facie biases in political

judgment are truly due to biased reasoning processes (e.g.,

Bolsen et al. N.d.) or whether they are simply failures of heuristic

forms of judgment. The average citizen may use perceptions of

ideological disagreement as a low effort cue, that is, an affect heu-

ristic (Finucane, Peters, and Slovic 2003; Kahneman 2011) for

forming perceptions about the political nature of the Court, but

one might wonder about the relationship between these con-

structs under conditions of complete information. If such rela-

tionships exist even when an individual has considerable

information relevant to making a judgment, then motivated

forms of reasoning likely provide a better explanation than

failures of heuristic judgment (e.g., Lavine, Johnston, and Steen-

bergen 2012; Taber and Lodge 2006). Our study is significant,

then, given the rarity with which students of political behavior

have the opportunity to conduct tests with samples possessing

high levels of information relevant to a given judgment task.

Legal Elites, Legitimacy, and Political Perceptions

Legal elites possess high levels of perceived legitimacy for the

Supreme Court as an institution, an empirical starting point that

motivates our elaboration of competing expectations about its con-

sequences. The 2005 Lawyer Component of the Annenberg

Supreme Court Survey (which we discuss in more detail below) con-

tained 859 elite lawyer interviews and included core indicators of

institutional legitimacy tapping a willingness of individuals to reject

Bartels, Johnston, & Mark 763