Thursday, October 11, 2018

Thinking About Legitimacy

Deborah Pearlstein

There has been no shortage of commentary in recent weeks suggesting that the nomination and confirmation of Brett Kavanaugh has come to pose a significant threat to the maintenance of the Supreme Court’s legitimacy.  Views vary widely as to why this is, but it seems possible to identify at least three distinct ideas.  On the Hill, a good measure of the focus has been on process – the norm-breaking surrounding the refusal to give Merrick Garland a hearing, the refusal to disclose all of Kavanaugh’s professional records; the vociferous and at times disruptive behavior of public protestors; the handling of Ford’s accusation and the FBI investigation that followed.  (See, e.g., here and here.)  The notion here is that Court has lost or will lose legitimacy because the Senate process that brought about its current composition was abnormal and/or unfair.  For others, like Justice Kagan, who spoke at a public panel at Princeton University last Friday, the issue is not so much about the Senate process as about the polarization of the bench as a whole.  With a swing justice like Kennedy or O’Connor, Kagan noted, the Court could be seen “as though it was not owned by one side or another, and was indeed impartial and neutral and fair.”  Now, she suggested, with it less apparent whether or when partisan lines might be crossed in high-profile Court decision-making, it may be harder now to maintain that legitimacy in the eyes of the public.  This concern is about the Court’s own appearance of institutional neutrality, about maintaining a public belief that judicial decision-making is something more than another expression of political values in an already polarized age.  And then there is the view that the crisis the Court now faces is bound up with the profoundly troubling alleged and actual behavior of Kavanaugh himself; for even some of those not disposed to credit the account of Christine Blasey Ford (or who believed that the conduct she described, even if true, was not disqualifying of itself) viewed the nominee’s accusatory, partisan response to the allegations before the Senate as revealing a severely compromised personal ability to serve as a good faith, neutral arbiter in resolving some of the nation’s most important disputes. The Court as an institution could still make a claim to neutrality even in a polarized age, but Kavanaugh himself no longer could.  

While it is certainly too early to tell whether one or more of these issues alone or in combination will have a lasting effect on public perceptions of the Court, I wanted to understood how likely it might be that any one of them would produce a real effect on the Court’s (what Richard Fallon called) sociological legitimacy. So I took a quick look at what we know already about past public perceptions of the Court. And while my look so far has been preliminary, to be sure, I admit it has left me more worried, not less, about the effect of recent events on public perceptions.  Though not for the reason Justice Kagan suggests.

From public opinion polling about the Court conducted over decades by Gallup, Pew and others, several broad findings are apparent.  First, the general public doesn’t follow the inner workings of the Supreme Court much.  Apart from the various polls that have found more than half of likely U.S. voters unable to pass the highly specific test of naming a current Supreme Court justice, plenty of studies indicate a broad lack of public knowledge about the basic structure and functions of the Court itself.  Second, there are no data suggesting Roe v. Wade, Bush v. Gore, or any other particularly high-profile decision in recent decades has singularly caused the general public to move much off a baseline degree of confidence in the Court as an institution.  While Gallup’s polling of overall confidence in the Court shows public confidence somewhat lower on average this past decade than it was in the decade before that, it is far from clear that there is any particular cause one might identify for this trend (which seems to mirror declines in public confidence across all government institutions, and in any case has reversed a bit since 2016).  As it stands, the public still views the Court significantly more favorably than it views Congress, and Americans continue to hold a strikingly favorable view of the Court on its own. (A Pew study conducted earlier this year – pre-Kavanaugh – found 66% of Americans view the Court favorably, almost identical to where that rating stood in 1985). 

At the same time, the reasons why the public holds such generally favorable views of the Court is somewhat less clear.  For example, more than one political scientist has found that most Americans are already realists about judicial decision-making. That is, nearly 60%  of Americans have for some time believed that judicial decision-making at the Court involves something more than just calling balls and strikes – that personal beliefs or some other form of value judgment is central in decision-making by the justices. (To the extent there is any identifiable segment of the population that remains more likely to believe that considerations other than ideological preference matter in judicial decision-making – to believe that judges ever rely on identifiable jurisprudential tools (including principles like stare decisis) in reaching a decision – there seems to be a clear answer: a minority population comprising ideological moderates who hold advanced degrees and pay close attention to the Court.)  Assuming such studies are accurate, this means that some not insubstantial fraction of Americans currently believe both that Supreme Court decision-making is informed by the justices’ personal views, and view the Court quite favorably as a government institution.    

How is it possible to reconcile general public perceptions of the Court as making decisions on value-based (or even ideological) grounds, with general public favorability toward the Court as an institution? At least one study suggests an intriguing answer: the public’s view of the Court’s legitimacy flows not from the perception that the justices act based on (something like) neutral principles, but that the judges decisions are sincerely principled nonetheless. That is, people generally approve of the justices more than, say, members of Congress, because they tend to believe the justices are acting not out of strategic or self-aggrandizing interests (like an elected politician might do), but because they are acting out of genuinely held, good faith beliefs.

So where does this all leave us in assessing the likelihood that one or more theories of post-Kavanaugh judicial illegitimacy will prove accurate?  My preliminary suspicion is that it makes it less likely that either norm-breaking in the Senate or partisan polarization on the bench as such will have a particularly profound effect.  On the norm-breaking front, understanding the existence (and significance) of Senate procedural norms requires a great deal of specific knowledge and attention.  And while there is no doubt that cable television ratings skyrocketed during the Kavanaugh hearings, it is not at all certain (and arguably seems unlikely) that what was driving the public’s attention to Kavanaugh was primarily pent up anger (little expressed by the public at the time) over the failure to accord Merrick Garland a hearing in 2016, or even failure to fully disclose Kavanaugh’s papers in 2018.  Likewise, the concern Justice Kagan (and others) understandably voice – that the public will now see more visible, ideologically-driven divides among the justices – as it turns out seems unlikely to come as news to a majority of the American people (and therefore seems unlikely to change their existing view).  Most Americans already believe the justices act in some measure on the basis of their personal (ideological or other) beliefs.  Indeed, this baseline level of judicial realism might help explain why – while law professors have been troubled for years, before and since Bush v. Gore, by increasingly ideologically driven decision-making – the cases we might find shocking in that respect have had apparently marginal effect on the general public’s view of the Court as an institution.

That brings us to the third significant legitimacy concern arising out of the Kavanaugh confirmation battle – the extent to which some significant fraction of the public developed and maintains the view that Kavanaugh’s particular behavior – either historically, or during the confirmation process, or some combination of the two – raises doubts about his personal sincerity or good faith.  For while a majority of Americans may not be troubled to find justices deciding cases based in part on their genuinely held political beliefs, Americans may be significantly more troubled if they suspect that considerations are in play – like a disbelief in the justice’s stated reasons, or a belief that the justice is motivated instead by a sense of personal grievance or partisan revenge.  Among legitimacy concerns going forward, this seems to me what makes Kavanaugh so potentially significant.  For there is some indication that the public did not especially believe him.  Compare the Clarence Thomas/Anita Hill hearings.  According to a CBS News/N.Y. Times poll conducted days before Hill testified, 47% of Americans thought the accusations against Thomas were not true, while 21% thought they were. After her testimony was broadcast, the same poll found that an even greater share doubted Hill’s accusations (54% untrue to 27% true).  By the day before the final Senate vote, 58% of Americans favored Thomas’ confirmation according to Gallup’s poll. This time around, after the hearings in which both Ford and Kavanaugh testified, polling indicated that while 45% of Americans said they now believed Ford (up from 32% before her testimony), only 33% said they believed Kavanaugh. Before the allegations of sexual misconduct, 39% of Americans opposed Kavanaugh’s confirmation. In a poll conducted in the days before the final Senate vote, 51% of Americans opposed him. 

Assessing judicial legitimacy is a tricky thing, even in ordinary times.  And it is frightening indeed to contemplate what is likely to come for the Court in an era when advocates of “constitutional hardball” seem to be multiplying.  So perhaps this exercise is nothing more than an attempt to avoid focusing on the worst possible outcomes here.  On the other hand, if something worse is coming, I want to understand why.  And for those who are contemplating constitutional hardball – or anti-hardball, even better, as a next step – we should take some care to aim at the right targets.

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