Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping U.S. Supreme Court Legitimacy?

Abstract

To what degree is the legitimacy of the U.S. Supreme Court currently at risk? Perhaps the most widely accepted view of how the Supreme Court acquires and maintains its legitimacy is positivity theory, which claims that the legitimizing symbols of judicial authority protect the Court's legitimacy from dissatisfaction with its rulings. Although research has shown that belief in legal realism does not itself threaten the Court's legitimacy, positivity theory suggests that portrayals of the Court as embroiled in politics—that is, as “just another political institution”—can undermine institutional legitimacy. Still, some recent research recognizes that ideological disagreement poses a serious threat to the legitimacy of the Supreme Court. Missing from extant literature is a reconciliation of how these three determinants—ideological dissatisfaction, legal realism, and perceptions of judicial politicization—combine to structure judicial legitimacy. Understanding the difference between perceptions of an “ideological” Court versus a “politicized” Court for institutional legitimacy is our central purpose in this article. We discover that the greatest threats to the Court's legitimacy lie in beliefs that judges are just ordinary politicians (not in ideological dissatisfaction or legal realism). We conclude by drawing out these findings’ implications for the upcoming highly politicized battles over nominations to the high bench.