Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?

Abstract

Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation’s highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences – a tenet of Legal Realism and the Attitudinal Model – the belief that the justices merely “apply” the law – Mechanical Jurisprudence – is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court – the most unaccountable of all American political institutions – is nurtured by the view that judicial decision making is discretionless, mechanical, and technical, the sources of institutional legitimacy under Legal Realism are less obvious. Here we posit – and demonstrate, using a nationally representative sample – that the American people understand judicial decision making in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in Mechanical Jurisprudence is not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.