The Rule of Law in Red and Blue: Affective Polarization and Support for Legal Institutions in the United States

• Published date: 01 July 2024
• DOI: http://doi.org/10.1177/1532673X241253262
• Author: Ali S. Masood,Ryan Strickler,Michael A. Zilis
• Date: 01 July 2024

Article

American Politics Research

2024, Vol. 52(4) 403–413

© The Author(s) 2024

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DOI: 10.1177/1532673X241253262

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The Rule of Law in Red and Blue: Affective

Polarization and Support for Legal Institutions

in the United States

Ali S. Masood

1

, Ryan Strickler

2

, and Michael A. Zilis

3



Abstract

Adef‌ining feature of democracies is an independent legal system, where elites and the public alike accept the broader legitimacy

of its actions, even if they run counter to political preferences. Existing scholarship suggests that public support for rule of law

institutions is rooted in perceptions of procedural fairness. However, amid increasing levels of affective polarization, we posit a

partisan presidential heuristic wherein citizens’views of legal institutions are inf‌luenced by their partisanship and signals from

the president. Through multiple experiments, we demonstrate that support for two key institutions—the Federal Bureau of

Investigation and the Department of Justice—is substantially derived from the intersection of one’s partisan identity and their

partisan proximity to the president. These effects are strongest among respondents exhibiting high levels of affective

partisanship. Our results suggest that in forming perceptions of the rule of law, partisan politics is increasingly competing with

perceptions of procedural fairness, thereby subverting support for legal institutions in the United States.

Keywords

affective polarization, presidency, partisanship, rule of law, public opinion

During his 2021 conf‌irmation hearing, Attorney General

Merrick Garland stated that “decisions will be made by the

department itself and led by the attorney general, without

respect to partisanship, without respect to the power of the

perpetrator or the lack of power, [or without] respect to the

inf‌luence of the perpetrator or the lack of inf‌luence.”

1

Here,

Garland gives voice to a bedrock value that lends legitimacy

to all liberal democracies—the rule of law. Within a vibrant

democracy, the legal process is fair, impartial, consistently

followed, and elites accept legal outcomes even if they

disagree. This provides a basis of perceived legitimacy with

the public (Baird, 2001;Caldeira & Gibson, 1992;Tyler,

1990). Increasingly, though, the public may be tolerating, or

even welcoming, political interference. Contrary to prior

research, we argue that with the rise of affective polarization

(Iyengar et al., 2019), partisan identity is increasingly

competing with perceptions of fairness in public assessments

of legal institutions (Armaly & Enders, 2022;Devins &

Baum, 2019). This cuetaking occurs through signals sup-

plied by the president. We test our expectations through

multiple survey experiments focusing on two key rule of law

institutions—the Federal Bureau of Investigation (FBI) and

the Department of Justice (DOJ).

2

We f‌ind that support for

both the institutions, as well as leaders within the institutions,

are signif‌icantly inf‌luenced by what we refer to as the partisan

presidential heuristic. What is more, this partisan presidential

heuristic has the strongest effect amongst those with the

deepest affective ties to their party.

Our work has implications for advancing our under-

standing on public support for rule of law and democratic

institutions more broadly. In an era of heightened affective

polarization (Abramowitz & Webster, 2016;Rogowski &

Sutherland, 2016), legal institutions have limited ability to

effectuate broad public support by bolstering a perception of

independence, impartiality, and fairness. Instead, our work

implies that the public is willing to support not just political

candidates and electoral institutions, but rule of law

1

Department of Politics, Oberlin College, Oberlin, OH, USA

2

Department of History, Political Science, Philosophy, and Geography,

Colorado State University, Pueblo, CO, USA

3

Department of Political Science, University of Kentucky, Lexington, KY,

USA

Corresponding Author:

Ryan Strickler, Department of History, Political Science, Philosophy, and

Geography, Colorado State University-Pueblo, 2200 Bonforte Blvd.,

Pueblo, CO 810014901, USA.

Email: ryan.strickler@csupueblo.edu