The Effects of Judicial Campaign Activity on the Legitimacy of Courts

• DOI: 10.1177/1065912910370684
• Author: Kathleen Hall Jamieson,James L. Gibson,Michael X. Delli Carpini,Jeffrey A. Gottfried
• Published date: 01 September 2011
• Date: 01 September 2011

Political Research Quarterly
64(3) 545 –558
The Effects of Judicial Campaign
© 2011 University of Utah
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Activity on the Legitimacy of Courts:
DOI: 10.1177/1065912910370684
http://prq.sagepub.com
A Survey-based Experiment
James L. Gibson1,2, Jeffrey A. Gottfried3,
Michael X. Delli Carpini3, and Kathleen Hall Jamieson3
Abstract
The purpose of this article is to investigate the consequences of judicial campaign activity for the perceived legitimacy
of the Pennsylvania judiciary. The authors find that politicized campaign ads do detract from court support, although
they find practically no difference between traditional campaign ads (e.g., presenting endorsements from groups) and
strong attack ads. But this finding must be understood within the context of the 2007 Pennsylvania election increasing
court support for all respondents, even those exposed to the most politicized ad content. Being exposed to politicized
ads seems to retard the benefits of elections but does not eliminate them.
Keywords
judicial elections, campaigning, politicized campaigns, attack ads, judicial legitimacy
Campaigning for state judgeships in America has entered a
of many sorts threaten institutional legitimacy, but the evi-
new era. In the past, campaigns might have been described as
dence that exists—fragmentary as it is—calls this conclu-
decent, docile, and dirt cheap, even if drab and dull. Today,
sion into question. Even the well-established literature on
they are said to be “nosier, nastier, and costlier” (Schotland
campaign effects within ordinary political institutions is
2001). Whatever the characterization, there can be little
uninformative on this issue since that research rarely consid-
doubt that the landscape of judicial elections has changed
ers the repercussions of campaigning on fundamental atti-
rather dramatically in the past decade in the United States.
tudes toward and support for political and legal institutions.1
As a consequence of this “new style” of politicized
At this point, we simply do not know what consequences
judicial election, court observers are concerned that the
flow from the more politicized style of judicial campaigning
legitimacy of the judiciary—or at least its perceived
that seems to be sweeping across the nation these days.
impartiality—may be compromised. For instance, one
Consequently, the purpose of this article is to inves-
legal scholar opines:
tigate the effects of campaign activity on the support
Pennsylvanians extend to their state Supreme Court. Based
When judicial decisions are seen as politicized rather
on a survey conducted in 2007, with interviews before,
than independent, or as done in the service of a spe-
during, and after the election on November 6, 2007, we
cial interest group or to advance judges’ self-interest
employ an experimental design to test the general hypoth-
rather than in a neutral and independent spirit, the
esis that politicized judicial campaigns undermine sup-
sense of fairness and justice that is the binding force
port for the judiciary. Because this research relies on a
of the Rule of Law becomes exhausted and the sys-
tem is weakened. Disobedience and avoidance of
1Washington University in St. Louis, St. Louis, MO, USA
legal obligations can be expected to rise in direct
2Centre for Comparative and International Politics, Stellenbosch
proportion to declining respect for law. As respect
University,
for the fairness of law diminishes, greater govern-
Stellenbosch South Africa
3The Annenberg School for Communication, University of
ment force must be used to ensure obedience.
Pennsylvania, Philadelphia, PA, USA
(Barnhizer 2001, 371, footnotes omitted)
Corresponding Author:
In fact, however, we know little about the effect of cam-
James L. Gibson, Washington University in St. Louis, Department
of Political Science, Campus Box 1063, One Brookings Drive,
paign activity on citizens’ perceptions of judicial institu-
St. Louis, MO 63130
tions. The assumption seems to be that campaign activities
Email: jgibson@wustl.edu

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546
Political Research Quarterly 64(3)
Web-based survey, the campaign material the respon-
to make the decision. Legitimate institutions are those
dents viewed is extremely realistic (and real since we
recognized as appropriate decision-making bodies even
used actual ads and campaign material broadcast in judi-
when one disagrees with the institution’s outputs. Thus,
cial races). Moreover, because Pennsylvania has recently
legitimacy takes on its primary importance in the presence
been the object of intense and salient political contro-
of an objection precondition. Institutions such as courts
versy over its judiciary (Goodman and Marks 2006), the
need the leeway to be able to go against public opinion
2007 campaign provided an exemplar of how judicial
(as for instance in protecting unpopular political minorities);
campaigns have become “nastier” and “noisier.” Our find-
a crucial attribute of political institutions is the degree to
ings indicate that the effects of judicial campaign activity
which they enjoy the loyalty of their constituents. When
may be more complicated—and less deleterious—than
courts enjoy legitimacy, they can count on compliance
many assume. Most important, our data suggest that even
with (or at least acquiescence to) decisions running con-
if politicized ad campaigns subtract from judicial legiti-
trary to the preferences of their constituents. Legitimacy
macy, that negative effect is overwhelmed by the positive
is therefore an extraordinarily valuable form of political
boost in institutional legitimacy courts receive from elec-
capital.
tions. We conclude this article with a discussion of how
these findings might inform the contemporary debate
over whether judges should continue to be elected by
Extant Research on the Effects
the popular vote of the people in the states of the United
of Campaign Activity on Judicial
States.
Legitimacy
The Legitimacy of Courts
Despite concern that campaign activity is having corro-
sive effects on the legitimacy of American courts, little
Considerable agreement exists among social scientists
research has investigated this issue rigorously. Indeed,
and legal scholars on the major contours of legitimacy
we count only a handful of studies that are even remotely
theory.2 For instance, most agree that legitimacy is a
connected to the question of how selection processes affect
normative concept, having something to do with the right
public views of courts.
(moral and legal) to make decisions. Authority is some-
Gibson and Caldeira (2009b) examined the impact of
times used as a synonym for legitimacy. Institutions per-
the ad campaigns mounted in support of or opposition to
ceived to be legitimate are those with a widely accepted
the nomination of Judge Samuel Alito to the U.S. Supreme
mandate to render judgments for a political community.
Court. Perhaps the most important finding of their research
“Basically, when people say that laws are ‘legitimate,’
is that the campaigns by interest groups favoring and
they mean that there is something rightful about the way
opposing the confirmation of Judge Alito seemed to have
the laws came about . . . the legitimacy of law rests on the
undermined the legitimacy of the Court itself. The cam-
way it comes to be: if that is legitimate, then so are the
paigns were politicized and taught the lesson that the court
results, at least most of the time” (Friedman 1998, 256).
is just another political institution and, as such, is not wor-
Among scholars, legitimacy is most often equated with
thy of high esteem. Since that study is based on a three-
“diffuse support.” This concept refers to “a reservoir of
wave panel design, allowing the direct measurement of
favorable attitudes or good will that helps members to
change in attitudes toward the Supreme Court, its find-
accept or tolerate outputs to which they are opposed or
ings are uncommonly persuasive.
the effects of which they see as damaging to their wants”
Of course, the question is open as to whether studies
(Easton 1965, 273). Diffuse support is institutional loy-
of attitudes toward the U.S. Supreme Court can be gener-
alty; it is support that is not contingent on satisfaction
alized to the state judiciaries. State courts of last resort are
with the immediate outputs of the institution. Easton’s
obviously far less salient than the U.S. Supreme Court,
apt phrase—a “reservoir of goodwill”—captures well the
with the likely consequence that institutional attitudes at
idea that people may have confidence in institutions to
the state level may be considerably more malleable. It is
make, in the long run, desirable public policy. Institutions
simply unclear whether findings drawn from research on
without a reservoir of goodwill may be limited in their
the U.S. Supreme Court apply to the state courts.
ability to defy the preferences of the majority.
Some relevant studies have, however, been conducted
Legitimacy becomes vital when people disagree about
on public attitudes toward state courts, although much of
public policy. When a court, for instance, makes a deci-
that literature is dated and burdened by weak measures
sion pleasing to all, discussions of legitimacy are rarely
of institutional legitimacy.3 Among the best of the lot are
heard. When there is conflict over...