Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

• DOI: http://doi.org/10.1111/jels.12157
• Author: James L. Gibson,Michael J. Nelson
• Published date: 01 September 2017
• Date: 01 September 2017

Reconsidering Positivity Theory: What

Roles do Politicization, Ideological

Disagreement, and Legal Realism

Play in Shaping U.S. Supreme

Court Legitimacy?

James L. Gibson* and Michael J. Nelson

To what degree is the legitimacy of the U.S. Supreme Court currently at risk? Perhaps the

most widely accepted view of how the Supreme Court acquires and maintains its legitimacy

is positivity theory, which claims that the legitimizing symbols of judicial authority protect

the Court’s legitimacy from dissatisfaction with its rulings. Although research has shown

that belief in legal realism does not itself threaten the Court’s legitimacy, positivity theory

suggests that portrayals of the Court as embroiled in politics---that is, as “just another

political institution”---can undermine institutional legitimacy. Still, some recent research

recognizes that ideological disagreement poses a serious threat to the legitimacy of the

Supreme Court. Missing from extant literature is a reconciliation of how these three

determinants---ideological dissatisfaction, legal realism, and perceptions of judicial

politicization---combine to structure judicial legitimacy. Understanding the difference

between perceptions of an “ideological” Court versus a “politicized” Court for institutional

legitimacy is our central purpose in this article. We discover that the greatest threats to the

Court’s legitimacy lie in beliefs that judges are just ordinary politicians (not in ideological

dissatisfaction or legal realism). We conclude by drawing out these findings’ implications

for the upcoming highly politicized battles over nominations to the high bench.

*Address correspondence to James L. Gibson, Department of Political Science, Washington University in St.

Louis, Campus Box 1063, St. Louis, MO 63130-4899; email: jgibson@wustl.edu. Gibson is Sidney W. Souers

Professor of Government, Washington University in St. Louis, Professor Extraordinary in Political Science,

Stellenbosch University, South Africa, and a Fellow at the Centre for Comparative and International Politics;

Nelson is Jeffrey L. Hyde and Sharon D. Hyde and Political Science Board of Visitors Early Career Professor in

Political Science and Affiliate Law Faculty, The Pennsylvania State University.

This is a revised version of a paper delivered at the Annual Meeting of the American Political Science Associa-

tion, San Francisco, CA, September 3–6, 2015. We greatly appreciate the support of Steve Smith and the Weiden-

baum Center for this research. We also acknowledge the assistance of Patrick Tucker in preparing these data for

analysis, and we appreciate the comments of Pamela Corley, Deborah Beim, Markus Neumann, Jeffrey Ziegler,

Miguel Maria Pereira, and Dan Sikorsky on an earlier version of this article.

592

Journal of Empirical Legal Studies

Volume 14, Issue 3, 592–617, September 2017

I. Introduction

In recent years, scholars have devoted a great deal of new attention to assessing the

legitimacy of the U.S. Supreme Court. This interest reflects the realization that legiti-

macy is an invaluable form of political capital for the institution, an asset that often con-

tributes to the solution of the Court’s inexorable “countermajoritarian dilemma.”

1

If the

Court can add to the proportion of the population pleased by its decisions a sizable

additional proportion who, while displeased, will accept the Court’s decisions as legiti-

mate, the justices can continue to be emboldened to perform their minoritarian role in

the U.S. political process. It is no wonder, therefore, that the justices often fret about

the need for maintaining their institution’s legitimacy.

2

One of the most important theoretical innovations of this new spurt of activity is

the positivity theory of Gibson and his colleagues (e.g., Gibson & Caldeira 2009). Positiv-

ity theory accounts for the venerable finding that to know more about the Court is to

“love” it more. That is, exposure to the institution, even in the context of learning of a

ruling with which one disagrees, seems to enhance the Court’s legitimacy (Gibson et al.

2014). Generally, positivity theory has made considerable inroads among judicial schol-

ars who are regularly exploring the theory (e.g., Bartels et al. 2015; Zilis 2015).

One of the most important implications of positivity theory is the claim that the

Supreme Court is to some degree shielded from its constituents’ displeasure with its deci-

sions. Positivity theory suggests that as citizens pay attention to the Supreme Court, they

learn about its activities, including about decisions with which they might disagree, but they

are also simultaneously exposed to legitimizing symbols (e.g., judges’ black robes) that tend

to create a presumption that, even if the outcome is undesirable, the process of decision

making is fair, and therefore an obligation to accept the decision is created. Because expo-

sure to judicial symbols is not necessarily registered consciously, it is hard for citizens to

rebut its implications, as they might via counterarguing in more conscious information

processing (as in motivated reasoning; see Lodge & Taber 2013). Simply put, the role of

the symbols is to mitigate the negative consequences for the institution of decisions that

run counter to a citizen’s policy preferences (thereby resolving at least a portion of the

countermajoritarian dilemma).

3

Therefore, positivity theory predicts that disagreement with

the Court’s rulings will have limited consequences for the legitimacy of the institution.

1

We invoke the literature on the so-called countermajoritarian dilemma only loosely and with full recognition of

the many nuances and debates that exist in the literature. For illustrations, see Pildes (2010) and Hall and Ura

(2015).

2

The most obvious example is the opinion of Justices O’Connor, Souter, and Kennedy in Planned Parenthood v.

Casey, in which legitimacy plays a prominent role (1992, e.g., 865--66). However, the Casey example is not unique.

Farganis (2012:207) reports that “since the Court’s 1954 decision in Brown, in fact, the justices have made

seventy-one such references to the Court’s institutional legitimacy, compared with just nine in the 164 years up

to that point.”

3

Indeed, one of the most important findings of the work by Gibson et al. (2014) on the effects of judicial symbols

is that, in the presence of the symbols, the delegitimizing effects of disappointment in the Court’s rulings are

reduced to zero (in contrast to fairly strong negative effects when the symbols are not present).

593Reconsidering Positivity Theory