Supreme Court Nominations, Legitimacy Theory, and the American Public: A Dynamic Test of the Theory of Positivity Bias

Abstract

Social scientists have taught us a great deal about the legitimacy of the U.S. Supreme Court. Unfortunately, however, most research fails to consider how the public's views of political institutions like the Court change over time. But opinions can indeed change, with at least two types of exogenous sources - controversial Supreme Court decisions and politicized confirmation hearings - providing engines for attitude change. Events such as these may awaken attitudes from their hibernation, allowing for the possibility of updating. Two types of change seem possible: Attention to things judicial may be associated with exposure to highly legitimizing symbols of judicial power (e.g., robes), symbols that teach the lesson that the Court is different from ordinary political institutions and therefore is worthy of esteem. Gibson and Caldeira refer to this as positivity bias. Alternatively, events may teach that the Court is not different, that its role is largely political, and that the myth of legality really is a myth. Since so few studies have adopted a dynamic perspective on attitudes toward institutions, we know little about how these processes of attitude change take place. Based on a three-wave national survey of ordinary Americans, we attempt to understand the influence of the Alito nomination/confirmation process on loyalty toward the Supreme Court. Our most important finding is that exposure to advertisements by interest groups for and against Alito's confirmation contributes to the erosion of support for the Court. These advertisements seem to encourage the belief that the Supreme Court is just another political institution, which, in the political climate in the country, is not an accolade. Politicized confirmation processes therefore seem to have considerable capacity to undermine the legitimacy of the Supreme Court itself.