Vol. 31 No. 7 (August 2021) pp. 123-126CURBING THE COURT: WHY THE PUBLIC CONSTRAINS JUDICIAL INDEPENDENCE, by Brandon L. Bartels and Christopher D. Johnston. Cambridge: Cambridge University Press, 2020. 306pp. Paper $34.99. ISBN: 978-1-316-63850-7.
Reviewed by Amanda C. Bryan, Department of Political Science, Loyola University Chicago. Email: abryan2@luc.edu.
There is hardly a discussion in judicial politics (especially among Supreme Court scholars) that does not, at one time or another, invoke the importance of judicial legitimacy. For more than 30 years, scholars have studied whether, how, and why the public trusts the Court. Most recently, this debate has centered around whether citizens’ ideological disagreement with the Court’s decisions can affect not only support for the decisions themselves, but their support for the Court as an institution. While this debate is far from over, CURBING THE COURT: WHY THE PUBLIC CONSTRAINS JUDICIAL INDEPENDENCE answers that question resoundingly with a “yes.”
The book uses both observational and experimental data from seven surveys conducted over more than a decade to challenge the conventional wisdom that the public’s evaluation of the Court is immune from partisan passions. Instead, they powerfully argue that citizens “care most about getting policy, partisan, and ideological victories… even if this means subverting the independence of the Court” (p. 245). This book is thorough, well-executed, well-written, and compelling. Given the importance of the debate they are engaged in, CURBING THE COURT is a must-read for students of the Court and anyone concerned with the independence of the judiciary.
The authors’ central thesis is that individuals are more willing to express support for curbing the Court’s independence and power when the Court issues decisions out of line with their political preferences. The book begins in Chapters 1 and 2 by setting out theoretical expectations and defining a set of conceptual frameworks that will be used throughout.
One of the biggest strengths of Bartels’ and Johnston’s work is that it wades into a legitimacy debate that is both crowded and cluttered and adds much-needed conceptual clarity. Chapter 1 lays out both how and why the literature’s varying definitions of diffuse support/legitimacy/institutional loyalty have gotten murky and how that definitional murkiness has gotten in the way of examining whether legitimacy relies on policy agreement. They choose to isolate one vector of this complicated concept – support for Court-curbing – and explain why it can lend insight into this broader question.
In the first chapter, the authors are careful to carve out a conceptual difference between support for Court-curbing and legitimacy, or institutional loyalty and writ-large. They write that “while public support for Court-curbing has implications for the Court’s institutional legitimacy, it is not a direct indicator of legitimacy” (p. 21, emphasis in original). Through this argument, the authors distinguish between support for narrow Court-curbing and broad Court-curbing. [*124] Bartels and Johnston define broad Court-curbing as “support for lasting and fundamental changes to the Court” (p. 23). This includes the answering affirmatively to questions such as “if the Supreme Court continually makes decisions that people disagree with, it might be better to do away with the Court altogether” or supporting institutional reforms such as cameras in the courtroom or a mandatory retirement age. By contrast, narrow Court-curbing is defined as “support for proposals to subvert the Court’s authority within circumscribed issue areas” (p. 23). Much of the book is focused on explaining when the public will support narrow and broad Court-curbing.
Chapter 2 is the most valuable chapter in the book because it lays out—potentially for the first time—a rich theoretical foundation for the policy based approach. Rooting their theory in political psychology, Bartels and Johnston argue that (1) citizens are weakly principled and willing to abandon their commitment to judicial independence when a higher-order priority (such as partisanship) conflicts with it and (2) citizens use motivated reasoning to justify that decision—arguing to themselves that it was the Court that has been corrupted by partisanship, not their principles. The theory then adds (3) that polarization enhances these effects, raising the stakes of people’s partisan commitments.
Together, Chapters 1 and 2 should be required reading in the “public opinion week” of every judicial politics class at the undergraduate and graduate levels. The conceptual clarity and theoretical foundation Bartels and Johnston bring in the first two chapters alone make the book worth reading. Of course, however, the true contribution of the CURBING THE COURT is the empirical evidence it brings to bear on the argument, which begins in Chapter 3.
The main substantive purpose of Chapter 3 is to provide a descriptive account of public trust in the Court over the last several decades. Contrary to accepted wisdom, Bartels and Johnston find institutional loyalty is on the decline. This trend is true across measures of approval, trust, confidence, and broad Court-curbing. As a base level, there is a surprising amount of support for reducing the Court’s power and curbing its legitimacy. However, the most important contribution of the chapter is that Bartels and Johnston use it to lay out the data and surveys they will use in the rest of the book. Their data come from seven sources—four observational cross-sectional surveys, and three experimental studies—spanning from 2005 to 2017. All three of the experimental studies were designed and implemented by the authors. One of the most compelling features of the book is the diversity of data the authors use and the consistency of their findings across surveys and over an extended period of time.
Chapter 4 is the first empirical chapter and explores whether general policy disagreement with the Court increases support for broad Court-curbing. Using three different cross-sectional surveys (from 2005, 2011, and 2012), Bartels and Johnston demonstrate a clear relationship between general perceived policy disagreement with the Court and support for broad Court-curbing proposals. In short, when people perceive the Court as being generally ideologically distant from their own preferences, support for broad institutional reforms increases substantially. Perhaps most interesting in this chapter is that Bartels and Johnston find that some of these effects are as large as the “boost” the Court gets from legitimacy-enhancing effects such as a person’s democratic values or heightened [*125] political engagement. In other words, “policy disagreement matters despite widespread endorsement of core democratic values” (p. 121).
Chapter 4 does raise the question, however, of how widespread perceived policy disagreement with the Court is in the American electorate. The authors are careful to make the point that it is not actual policy disagreement (measured by something like percent of liberal decisions issued in a term) but rather how much a person believes the Court is on the other side of the ideological divide. And this belief can be malleable and often driven by elites. Given this, I am left wondering at the end of Chapter 4 whether the Court has an image control problem where elites are rallying voters on their side to believe they are not getting what they want from the Court. Chapter 4 seems to suggest that there is an incentive for elites to make people believe they are ideologically at odds with the Court as a tool to keep the Court in line. And if it is true that what matters is perception of ideological agreement, and not policy output, what does this mean for the Court’s legitimacy and whether the Court has any tools it can use to control that image?
Chapter 5 is one of the most interesting and most creative in the book. It leverages the timing of real decisions as natural experiments to tease out some complicated effects. Across several different studies, the authors find that “policy disagreement leads citizens to support Court-curbing, but the effect is stronger for narrow curbing than broad curbing” (p. 163-4).
This is an effect that is replicated in Chapter 6 where the authors use two of their survey experiments to explore how support for Court-curbing is complicated and enhanced by partisan polarization. They find across both surveys that providing respondents party cues enhances the effect of policy disagreement and that providing polarized party cues drastically enhances the effect. However, the big caveat in Chapter 6 (as it was in Chapter 5) is that these results are largely contained to support for narrow curbing. Citizens seem willing to take action against the Court when that action is targeted to specific decisions they dislike, but they stop short of being willing to punish the Court with broad changes to its institutional design. The consistent story throughout the book is that citizens are very willing to support narrow curbing measures but the hurdle to broad curbing is much higher. These findings may be one of the few bright spots for judicial independence in the book.
While this is well outside the scope of the authors’ work, the finding that citizens are so willing to support narrow curbing measures is itself interesting. Conventional wisdom (which is challenged in this book) suggests not only that the Court enjoys high levels of support, but also that support is substantially higher than the trust given to the elected institutions. However, narrow curbing measures often involve legislative action –- whether that be legislative overrides or jurisdiction stripping over specific policy areas. Chapters 5 and 6 might imply that citizens value policy agreement so highly that they are willing to turn to whichever institution gets them closest to that goal, regardless of their latent trust in that institution. When the Court can deliver friendly decisions, people turn to the Court. When the Court fails, these results suggest people are willing to turn back to Congress to punish the Court and deliver the results they want. [*126]
Chapter 7 is admittedly the least developed chapter in the book. It explores how citizens use procedural considerations as ways to legitimize decisions they like and delegitimize decisions they do not, allowing them to support Court-curbing measures while still thinking they are respecting democratic values. Bartels and Johnston use both observational and experimental methods in this chapter to find some general support for the notion that, unlike conventional wisdom “procedural perceptions do not drive the acceptance of decision outcomes…Rather, policy agreement drives procedural perceptions,” (p. 237).
Taken together, CURBING THE COURT is an important and impressive statement challenging decades of scholars’ assumptions about the relationship between the Court and the public. Its contributions extend beyond the empirical results –- which are methodologically diverse and overwhelmingly consistent. It also adds a depth and a richness to our theoretical understanding of how the public relates to the Court. And it is a story that comports well with what political scientists and political psychologists already understand about the American public: partisanship matters. And the Supreme Court is no exception.
© Copyright 2021 by author, Amanda C. Bryan.
