The Legitimacy of the U.S. Supreme Court in a Polarized Polity

• Date: 01 November 2007
• DOI: http://doi.org/10.1111/j.1740-1461.2007.00098.x
• Author: James L. Gibson
• Published date: 01 November 2007

The Legitimacy of the U.S. Supreme

Court in a Polarized Polity

James L. Gibson*

Conventional political science wisdom holds that contemporary American

politics is characterized by deep and profound partisan and ideological

divisions. Unanswered is the question of whether those divisions have

spilled over into threats to the legitimacy of American political institutions,

such as the U.S. Supreme Court. Since the Court is often intimately involved

in making policy in many issue areas that divide Americans—including the

contested 2000 presidential election—it is reasonable to hypothesize that

loyalty toward the institution depends on policy and/or ideological agree-

ment and partisanship. Using data stretching from 1987 through 2005, the

analysis reveals that Court support among the American people has not

declined, nor is it connected to partisan and ideological identifications.

Instead, support is embedded within a larger set of relatively stable demo-

cratic values. Institutional legitimacy may not be obdurate, but it does not

seem to be caught up in the divisiveness that characterizes so much of

American politics—at least not at present.

*Sidney W. Souers Professor of Government, Professor of African and African American Studies

Department of Political Science, Director, Program on Citizenship and Democratic Values,

Weidenbaum Center on the Economy, Government, and Public Policy, Washington University

in St. Louis, Campus Box 1063, 219 Eliot Hall, St. Louis, MO 63130-4899; e-mail:jgibson@

wustl.edu; Fellow, Centre for Comparative and International Politics, Professor Extraordinary in

Political Science Stellenbosch University (South Africa).

Support for the research on which this article is based has been provided by Atlantic Philan-

thropies in a grant to the Center for Democracy and the Third Sector (CDATS) at Georgetown

University, and by the Weidenbaum Center on the Economy, Government, and Public Policy at

Washington University in St. Louis. Marc Morjé Howard, with the assistance of James L. Gibson,

was primarily responsible for executing that survey. I greatly appreciate Howard’s untiring

efforts on the 2005 project, as well as the support for this research provided by Steven S. Smith.

Gregory A. Caldeira, Damon Cann, Jeffrey Yates, Gerhard Loewenberg, and Robert Y. Shapiro

provided most useful comments on an earlier version of this article. I also appreciate the

research assistance of Marc Hendershot, Jessica Flanigan, and Christina Boyd.

Journal of Empirical Legal Studies

Volume 4, Issue 3, 507–538, November 2007

©2007, Copyright the Author

Journal compilation ©2007, Cornell Law School and Blackwell Publishing, Inc.

507

I. Introduction

The period of the early 21st century in the United States is judged by many

to be an era of rather intense partisan and ideological polarization. From

abortion rights to the war in Iraq, Democrats disagree with Republicans, just

as liberals joust with conservatives. The primary colors of the contemporary

United States seem to be red and blue. On a variety of important political

issues, partisan and ideological differences are substantial and profound.1

Implicated in many of the issues dividing Americans is the U.S.

Supreme Court. For a variety of reasons, the Court often finds itself at the

center of intense political disputes: be it the right to abortion, the right to

burn an American flag in protest, the degree to which church and state must

be separated, and conflicts between rights of privacy and national security.

These issues clearly divide Americans of different ideological and partisan

persuasions, and much of the contemporary debate focuses on what the

Supreme Court has, or has not, ruled.

What is less obvious, however, is whether this same sort of polarization

exists with regard to the basic institutional legitimacy of the Supreme Court.

Have divisions over public policy been exacerbated to the point that they

have undermined the very legitimacy of the institutional author of such

policy—the U.S. Supreme Court? If so, then the divisiveness of the current

era may have more profound and lasting consequences than even the most

pessimistic analysts currently imagine.

There are indeed signs that threats to the institutional integrity of

the Supreme Court abound. Certainly, the Justices of the Court have com-

plained about this matter, often couching their arguments in terms of the

preservation of one of the most distinctive, essential, and cherished

attributes of courts: judicial independence. In 2006, former Justice Sandra

Day O’Connor delivered a series of speeches decrying those who would limit

the independence of the American judiciary.2There can be no doubt that

1The literature on how divided Americans are is itself somewhat divided. Fiorina (2006) does

not believe such differences to be profound, but many (if not most) draw different conclusions

from the available data (e.g., Abramowitz & Saunders 2005; McCarty et al. 2006; Sinclair 2006).

Others suggest that even areas such as foreign policy—once thought to be the last bastion of

nonpartisanship—have become highly disputatious (e.g., Shapiro & Bloch-Elkon 2006).

2For an unofficial transcript of one of these speeches, see 〈http://www.law.ufl.edu/dedication/

speechtext.shtml〉(accessed June 8, 2006). In his 2005 report on the federal judiciary, Chief

Justice Roberts asserted what has become another familiar refrain: “A more direct threat to

508 Gibson

certain members of Congress have attacked the U.S. Supreme Court, and no

shortage exists of legislation designed to “curb” the Court’s decision-making

authority: ranging from the “Safeguarding Our Religious Liberties Act,” H.R.

4379, introduced by Ron Paul (TX-14) with the purpose of eliminating

federal court jurisdiction over state and local policies regarding the free

exercise or establishment of religion, any privacy claim related to issues of

sexual practices, orientation, or reproduction, and any equal protection

claim based on the right to marry without regard to sex or sexual orientation,

to the “Congressional Accountability for Judicial Activism Act of 2004,”

introduced in the House of Representatives by Representative Ron Lewis

(KY-2) and 26 co-sponsors, and that would empower Congress to reverse by

a two-thirds vote any judgment of the U.S. Supreme Court that concerns the

constitutionality of an act of Congress (H.R. 3920).3Specific high-stakes

Court decisions have drawn vicious and legitimacy challenging criticism—as

in the direct attack by various law professors on the Court’s legitimacy after

its ruling in Bush v. Gore4—and there is no shortage of threats to the judiciary

from the religious right, right-wing terrorists and murderers, and kooks.5

Serious proposals to change the structure of the judiciary have been floated

(e.g., various plans to convert the life tenure of Supreme Court judges to a

fixed term).6Although not all dissatisfaction with judges in the United States

is focused on the Supreme Court, there can be little doubt that the Justices

of the Court are correct to worry about the implications of the current

political climate in the country for the legitimacy of law and courts in general

judicial independence is the failure to raise judges’ pay.” See 〈http://www.uscourts.gov/ttb/

jan06ttg/yearend/index.html〉(accessed May 26, 2006).

3For a discussion of earlier court-curbing efforts in the American case, see Friedman (2005:314–

15). For European examples, see Schwartz (2000).

4On January 13, 2001, 585 law professors placed an advertisement in the New York Times

condemning the Court’s decision in Bushv.Goreas illegitimate. The advertisement, as well as

much additional material and criticism, can be found at 〈http://www.the-rule-of-law.com〉

(accessed December 7, 2001).

5See, for example, 〈http://www.judgesgonewild.com/〉(accessed May 26, 2006).

6Farnsworth (2004:2, footnotes omitted) asserts: “In recent years at least ten distinguished

scholars (as well as two distinguished judges and a distinguished journalist) have proposed

abolishing life tenure for Supreme Court Justices and replacing it with fixed terms of years in

office.” That paper provides full citations to support this claim. See also Eskridge and Levinson

(1998) and Levinson (2006).

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