Scandal, Controversy, and Judicial Legitimacy

• In Event: Studying Judicial Legitimacy: Scandals, Communication, and Personal Impact

Abstract

Several controversies currently surround the United States Supreme Court. First, while electorate remains closely divided ideologically, the Court has a relatively new, Republican-appointed supermajority, which has handed down very conservative rulings on hot-button issues like abortion and affirmative action. Second, this conservative shift among the justices is due in large part to norm-breaking behavior of Senate Republicans (i.e., their refusal to confirm an Obama nominee in early 2016 on the grounds that it was an election year, while rushing a Trump nominee while the 2020 election was already underway). Third, many court-watchers have noticed an increase in the use of the “shadow docket,” as opposed to more normal and transparent procedural channels, to decide ideologically salient issues. Finally, some justices – most notably Justice Thomas – are embroiled in an ethics scandal related to them taking – and not declaring – expensive gifts from wealthy political activists.

These factors have led many Court-watchers to speculate that the Supreme Court’s good standing with the public is in jeopardy. Although approval levels of the Court are at historic lows, the institution’s legitimacy – or diffuse support – has frequently been shown to be more durable (e.g., Gibson, Caldeira, & Spence 2003). That said, the Court’s conservative abortion decision in Dobbs may have disrupted that trend (Gibson, n.d.). Many have examined the effect (or lack thereof) of ideological dissatisfaction on Supreme Court legitimacy (e.g., Bartels & Johnston 2013, Christensen & Glick 2015, Gibson & Nelson 2015). More recently, other work has examined the effects/non-effects of partisan hostility in the nomination process (Glick 2023, Salamone & Kromphardt n.d.), the shadow docket (Davis & Benesh 2023), and ethics scandals (Boston et al. 2023) on the institution’s diffuse support. However, the combined effect of all these points of criticism has yet to be explored.

In this paper, I conduct a survey experiment to assess the cumulative effect of these Supreme Court controversies on both specific and diffuse support. I construct four brief vignettes, each designed to inform respondents of a different Supreme Court controversy (ideological imbalance, norm-breaking in nominations, shadow docket use, and ethics scandals). Respondents will be exposed to some number of these vignettes at random. In other words, some respondents will see more sources of criticism against the Court than others. I hypothesize that, an increase in the number of controversies given to a respondent will correspond with a decrease in support (both specific and diffuse) for the Court – particularly among the Court’s ideological opponents (i.e., Democrats). I also hypothesize that these controversies will differ in their individual ability to move attitudes toward the Court. As such, this work should provide insight into the dynamics public perception of the judiciary and situate that within the complicated context of our current political moment.

Author

• Michael Salamone, Washington State University