Minority Groups and Judicial Legitimacy: Group Affect and the Incentives for Judicial Responsiveness

AuthorMichael A. Zilis
Published date01 June 2018
Date01 June 2018
Subject MatterArticles
/tmp/tmp-18osVmEJUNYXng/input 735174PRQXXX10.1177/1065912917735174Political Research QuarterlyZilis
Political Research Quarterly
2018, Vol. 71(2) 270 –283
Minority Groups and Judicial Legitimacy: © 2017 University of Utah
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Group Affect and the Incentives for
DOI: 10.1177/1065912917735174
Judicial Responsiveness
Michael A. Zilis1
This paper introduces a new perspective into the literature on judicial legitimacy by examining the incentives for
courts to cater to a popular majority and offering a novel model of legitimacy that has consequences for judicial
responsiveness. The account integrates into the literature classic research on how strategic social groups shape public
opinion. I theorize that citizens use their perceptions of the judiciary’s support for various social groups as a means
to assess the institution overall. From this insight, I derive specific expectations about the conditions under which the
Supreme Court’s protection of minority groups like gays and immigrants can damage its legitimacy. Using national
survey data, I demonstrate that dislike for the beneficiaries of recent Court rulings systematically diminishes the
institution’s legitimacy. The influence of these group-based considerations shapes individual-level attitude change and
can be observed at various points in time.
Supreme Court, legitimacy, social groups, public opinion
In 2010, Arizona lawmakers enacted a bill to aggressively
and Johnston 2013; Johnston, Hillygus, and Bartels
combat illegal immigration. The bill, S.B. 1070, gave law
2014)—there are reasons to expect that each account may
enforcement broad authority to detain those suspected of
miss important components of public response to rulings
being in the state illegally. It faced immediate legal chal-
like Arizona v. U.S. Although this decision provided a
lenge. In Arizona v. U.S. (2012), the Supreme Court
variety of signals to the public, clear to some observers
struck down three of the bill’s central provisions. Not all
was the Court’s willingness to, in Scalia’s formulation,
of the justices, however, signed on. In dissent, Justice
assent to the “siege” of illegal immigrants.
Antonin Scalia characterized the dangers of illegal immi-
The case is not unique. In recent terms, and indeed
gration in stark terms. Citizens, he argued, “feel them-
throughout much of its modern history, the Court has
selves under siege by large number of illegal immigrants
issued high-profile pronouncements with implications
who invade their property, strain their social services, and
for social groups that include homosexuals, African
place their lives in jeopardy.” The opinion made explicit
Americans, atheists, religious organizations, political pro-
what Scalia saw as a gulf between the Court’s marble
testors, and big business groups. Cases surrounding the
arches and the realities of Arizonans threatened by unlaw-
rights-claims of divergent groups—Japanese Americans
ful and dangerous immigrants.
in Korematsu v. U.S. (1944), African Americans in Brown
Might rulings like Arizona v. U.S. have consequences
v. Board of Education (1954), and same-sex couples in
for the judiciary’s public support? Three decades worth of
Obergefell v. Hodges (2015)—constitute some of the most
research and a recent resurgence of interest in judicial
significant and high-profile judicial rulings ever released.
legitimacy provide few answers. Although the dominant
Moreover, cases involving the claims of visible social
behavioral theories in this literature traverse a broad swath
groupings make up an important portion of the Court’s
of intellectual territory—emphasizing the obdurate nature
of diffuse support (e.g., Caldeira and Gibson 1992;
1University of Kentucky, Lexington, USA
Gibson, Caldeira, and Spence 2003b; Gibson and Nelson
2014, 2015), distinguishing between “legal” and “politi-
Corresponding Author:
cal” modes of evaluating the judiciary (e.g., Christenson
Michael A. Zilis, Department of Political Science, University of
Kentucky, 1651 Patterson Office Tower, 120 Patterson Drive,
and Glick 2015), and highlighting the role that ideological
Lexington, KY 40506, USA.
agreement plays in shaping diffuse support (e.g., Bartels
Email: Michael.zilis@uky.edu

high-profile decisions. One study finds that although civil
citizens to extend less support to the institution. On the
rights cases, perhaps the quintessential example of dis-
contrary, the Court may also be perceived as unsympa-
putes that involve visible social groups, made up only 9
thetic to unpopular groups. Building on insights that dem-
percent of the docket in the term under study, they were
onstrate the dominance of negative, or threat-based,
the subject of 22 percent of the reports from newspapers
attitudes involving social groups, I theorize that citizens
and 58 percent from newsmagazines (O’Callaghan and
do not view such a Court as more legitimate. In short, I
Dukes 1992).
argue that Americans formulate assessments of Court
Yet, existing scholarship has neglected a fundamental
legitimacy by drawing on their negative attitudes toward
question: Do citizens use their views about important social
the groups they perceive the institution to favor.
groups to evaluate the judiciary itself? The lack of knowl-
An account of legitimacy that focuses on social group
edge on this question is troubling from theoretical, empiri-
affect recognizes the limitations of Americans’ political
cal, and normative perspectives. Institutional legitimacy
awareness. Rather than demanding that citizens have a
provides courts leeway to go against majority will. As
range of well-formed policy opinions and detailed knowl-
Gibson and Nelson (2014, 202) observe, the U.S. Supreme
edge of multiple rulings, as policy support models do, this
Court is “heavily dependent upon legitimacy for its efficacy
account relies on the widely accepted idea that citizens
and survival.” Because of this, consensus is that if legiti-
possess strong attitudes about various social groups
macy depends too heavily on specific support for judicial
around which they organize views of the political world.
outputs, this “leaves the Court vulnerable to attacks from
This enables us to understand legitimacy across multiple
the public and politicians in light of unpopular decisions”
contexts by evaluating it light of a limited number of rela-
(Bartels and Johnston 2013, 185). In this scenario, the con-
tively durable attachments, as opposed to a large number
ventional wisdom goes, a strategic Court would alter its
of poorly defined policy-specific opinions (Zaller 1992).
decision making to safeguard its institutional integrity.
I examine theoretical expectations using data from a
This is particularly concerning if support for the judi-
national survey of the American public. I demonstrate
ciary is contingent on attitudes about the social groups
that affect toward two prominent groups perceived by
who have their day in Court. If, for instance, citizens who
many as the beneficiaries of recent Supreme Court juris-
feel negatively toward immigrants in general penalize the
prudence, gays and Hispanic immigrants, shapes judicial
Court for rulings they perceive as pro-immigrant, the
legitimacy. In particular, citizens who view these groups
judiciary has reason to combat this perception. It may
with disfavor also tend to see the Court as less legitimate.
strategically deny future rights-claims forwarded by this
To evaluate whether the theory holds when a minority
group to safeguard its support.
group loses before the Court, I explore another recent rul-
This paper offers one of the first systematic explora-
ing regarding the Voting Rights Act. I find no evidence to
tions of the relationship between attitudes toward social
suggest that negative feelings toward African Americans
groups and the legitimacy of a judiciary seen as the ally
lead to an appreciable increase in legitimacy even after
of these groups. In other words, it asks whether the
the Court struck down portions of the law over the objec-
Supreme Court’s perceived support for various minority
tions of civil rights groups.
groups influences its diffuse support. While this question
I subject this theoretical account to a series of empiri-
is relatively novel in the legitimacy literature, a group-
cal tests, which demonstrate that diffuse support is shaped
based legitimacy account has strong theoretical underpin-
by perceptions of minority gains at the Court, with citi-
nings. Drawing on an extensive literature that suggests
zens seeing the institution as significantly less legitimate
the important role played by strategic social groups in
when they dislike the groups it rules in favor of, and this
shaping public opinion (e.g., Brady and Sniderman 1985;
change can be observed not only at the aggregate level
Conover 1988; Converse 1964; Green, Palmquist, and
but in how individuals’ attitudes change over time. These
Schickler 2004), I formulate a theory that explains how
results hold even after controlling for multiple existing
citizens use their views about social groups to evaluate
factors seen to shape legitimacy. The findings demon-
the judiciary. In this account, groups provide citizens a
strate the...

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