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

Date01 December 2014
Published date01 December 2014
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:
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

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