Losing, but Accepting: Legitimacy, Positivity Theory, and the Symbols of Judicial Authority

• Date: 01 December 2014
• Published date: 01 December 2014
• DOI: http://doi.org/10.1111/lasr.12104

Losing, but Accepting: Legitimacy, Positivity

Theory, and the Symbols of Judicial Authority

James L. Gibson

Milton Lodge

Benjamin Woodson

How is it that the U.S. Supreme Court is capable of getting most citizens

to accept rulings with which they disagree? This analysis addresses the role

of the symbols of judicial authority and legitimacy—the robe, the gavel, the

cathedral-like court building—in contributing to this willingness of ordinary

people to acquiesce to disagreeable court decisions. Using an experimental

design and a nationally representative sample, we show that exposure to

judicial symbols (1) strengthens the link between institutional support and

acquiescence among those with relatively low prior awareness of the Supreme

Court, (2) has differing effects depending upon levels of preexisting institu-

tional support, and (3) severs the link between disappointment with a dis-

agreeable Court decision and willingness to challenge the ruling. Since

symbols influence citizens in ways that reinforce the legitimacy of courts, the

connection between institutional attitudes and acquiescence posited by Legiti-

macy Theory is both supported and explained.

Aconsiderable body of research has investigated the hypothesis

that courts, through their institutional legitimacy, can persuade

citizens to change their views on the substantive issues of judi-

cial rulings, or at least to acquiesce to decisions with which they

This is a much revised version of an article delivered at the 2012 Annual Meeting of the

American Political Science Association, New Orleans, August 28–September 1, 2012. The

survey on which this article is based was made possible by a grant from TESS: Time-sharing

Experiments for the Social Sciences (TESS-230, 2011, “The Legitimacy Conferring Capac-

ity of the U.S. Supreme Court: The Influence of Institutional Symbols”), to whom we are

much indebted. Gibson and Lodge also acknowledge the support for this research of the

Russell Sage Foundation’s VisitingScholar program. We appreciate the comments of Alicia

Salvino on an earlier version of this article. Members of the American Politics Workshop at

Columbia University—and especially Don Green—made many useful suggestions about

revisions to an earlier version of this article. We also appreciate very much the comments

of Dino P. Christenson, David Glick, George E. Marcus, Christopher Claassen, Jenny

Mansbridge, Jeffrey Yates,Sidney G. Tarrow, Michael Olivas, Neil Malhotra, Kathleen Hall

Jamieson, Lawrence Friedman, Matthew Hall, Stephen Jesse, Christopher Johnston,

Charlie Geyh, Tom Clark, Peter Enns, Bernadette Atuahene, Brandon Bartels, Vincent

Hutchins, Marc Hetherington, Jeffrey Staton, Marcus Prior, Jane June, and Jesse Atencio.

Please direct all correspondence to James L. Gibson, Department of Political Science,

Washington University in St. Louis, Campus Box 1063, St. Louis, MO 63130-4899; e-mail:

jgibson@wustl.edu

bs_bs_banner

837

Law & Society Review, Volume 48, Number 4 (2014)

© 2014 Law and Society Association. All rights reserved.

disagree.1Most of this research relies upon an implicit model of

attitude change in which citizens are thought to consciously mull

over the legal arguments of courts (e.g., is the death penalty

“cruel?”) and adjust their views accordingly. Or, relatedly, citizens

may be stimulated to think about judicial power, fairness, and

legitimacy, and therefore accept that the institution has the right

to make authoritative decisions requiring acceptance. The key

element in this process is assumed to be some form of conscious

thinking and deliberation.

Gibson and Caldeira (2009) have put forth “Positivity Theory”

in which they suggest that when citizens pay attention to courts,

they are influenced by the pageantry of judicial symbols, and that

this, too, contributes to acquiescence and attitude change. People

may be impressed by such symbols as the robes of judges, the

honorific forms of address, and the temple-like buildings in which

courts are typically housed. Judicial scholars often simply assume

the importance of these symbols2; systematic empirical investiga-

tions of their effects are, however, practically nonexistent.

This article reports the results of a survey-based experiment

that examines the influence of exposure to judicial symbols on

acquiescence to an unwanted Supreme Court decision. Overall, we

discover that the symbols of judicial authority play a crucial mod-

erating role in the legitimacy–acquiescence linkage, with judicial

symbols changing the way attributions of legitimacy get connected

to acquiescence to a disagreeable Court decision. For the bulk of

Americans with little prior exposure to the Supreme Court, the

presence of judicial symbols strengthens the link between institu-

tional legitimacy and acceptance of the decision. Without exposure

to the symbols, greater institutional legitimacy still contributes to

more acceptance of a Supreme Court decision but much more

weakly. In addition, not everyone holds the same degree of rever-

ence for the Supreme Court, and consequently the impact of expo-

sure to judicial symbols is contingent upon preexisting levels of

support. Finally, the presence of judicial symbols impedes the trans-

lation of policy disappointment into a willingness to challenge the

Court and its policies. We conclude our analysis with some specu-

lation about the micro-level mechanisms through which symbols

exert their influence.

1Useful reviews of Legitimacy Theory can be found in Tyler (2006), Gibson and

Nelson (2014a), and Gibson (2014a).

2For example: “Since the Court dresses itself in legal symbols, both literally (i.e., the

wearing of black robes by the justices) and figuratively (by emphasizing reliance on

the Constitution, precedent, and legal norms), its image is decidedly positive relative to the

elected branches of government” (Nicholson and Hansford 2014: 2).

838 Legitimacy, Positivity Theory, and the Symbols of Judicial Authority