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

Abstract

Perhaps the most widely accepted view of how the Supreme Court acquires and maintains its legitimacy is Positivity Theory, which claims that the Court’s legitimacy is protected from dissatisfaction with its rulings by the legitimizing symbols of judicial authority. While research has shown that belief in legal realism does not threaten the Court’s legitimacy, Positivity Theory recognizes that portrayals of the Court as “just another political institution” can undermine institutional legitimacy. Missing from extant literature is a reconciliation of how ideological dissatisfaction, legal realism, and perceptions of judicial politicization structure judicial legitimacy. Understanding the difference between perceptions of a “political” court versus a “politicized” court is our central purpose. We discover that the greatest threats to legitimacy lie in beliefs that judges are just ordinary politicians (not from ideological dissatisfaction). We conclude by drawing out the implications of these findings for highly politicized battles over nominations to the high bench.