Last week, the Biden administration took one step closer to deciding whether to change the Supreme Court. President Biden’s Court Commission, an advisory committee made up of 34 lawyers, judges and academics, released preliminary materials mapping out areas for discussion, including adding justices, giving justices term limits, and changing which cases the justices can hear.
In these materials, the Court Commission wrote that any reforms would aim to preserve the Supreme Court’s legitimacy. But the commission uses that term in a way that’s different from how political scientists have traditionally measured it. Here’s why that matters.
Legitimacy is not “a general level of support”
The commission’s draft materials offered no single definition of legitimacy. At various points, the materials define legitimacy as “the general level of support that the Court has among the people of the United States,” “how the people regard the Court: whether they see it as a judicial or legal institution,” or “an evaluative judgment about the Court’s actions — whether it is making good or right decisions — rather than an assessment of the support the Court has among Americans generally.”
But social science defines legitimacy differently.
Political scientists often differentiate legitimacy, sometimes called “diffuse support,” from approval of the court’s decisions, also called “performance satisfaction” or “specific support.” According to political scientist David Easton, legitimacy is a “reservoir of favorable attitudes or good will that helps [citizens] to accept or tolerate outputs to which they are opposed or the effects of which they see as damaging their wants.” Whether Americans see institutions as legitimate grows from childhood socialization about politics and democratic values. When institutions are considered legitimate, citizens more easily accept decisions they dislike. That’s especially important for courts, which cannot enforce their own decisions.
Americans’ attitudes about an institution’s performance, on the other hand, are more closely tied to whether they like particular decisions the institution makes. A shift in people’s judgments of performance satisfaction doesn’t necessarily measure anything about whether they still feel the institution is legitimate. For instance, when Gallup announced last month that approval of the Supreme Court had hit a new low, its poll measured performance satisfaction, not legitimacy.
These two arguments make Americans less opposed to adding justices to the Supreme Court
The Biden commission’s concepts of legitimacy — a “general level of support” or an “evaluative judgment about the Court’s actions” — sound suspiciously close to performance satisfaction, not legitimacy. Imagine a sullen teenager frustrated with a parental decision to ground him for missing curfew but who still hands over his keys and complies with his punishment; even though his satisfaction with his parents is low, he still accepts them as having legitimate authority.
The same is true for courts. The public may have low performance satisfaction with an institution but still see it as highly legitimate. Repeated performance dissatisfaction may chip away at judicial legitimacy, but the Supreme Court’s legitimacy has generally been high and relatively stable for decades — even though satisfaction with its performance has fluctuated wildly.
Nor is legitimacy “whether [citizens] see [the court] as a judicial or legal institution.” Research suggests that the court’s weakness is the occasional public suspicion that the justices are just “politicians in robes.” In other words, how citizens think the court came to its decision might affect their judgments of its legitimacy, but that attitude is not itself a measure of legitimacy.
Legitimacy is willingness to accept losing
Instead of conflating legitimacy and performance satisfaction, the commission should follow social science research and define legitimacy as citizens’ felt obligation to follow a court’s decision, not out of fear of reward or punishment but because they simply should obey the court. In this tradition, too, legitimacy and performance satisfaction are distinct.
This definitional issue could affect the commission’s conclusions. Citizens’ judgments of performance satisfaction are fleeting: Someone might be unhappy with what the court decided today but satisfied with the outcome of a case tomorrow. By contrast, attitudes about judicial legitimacy are much more stable over time. Moreover, performance satisfaction is grounded in partisanship; Democrats’ and Republicans’ judgments of the court’s performance often diverge widely. A person’s partisanship, on the other hand, generally doesn’t tell us much about whether they see an institution as legitimate.
By conflating legitimacy with performance satisfaction, the commission may favor reforms that will keep Americans happy in the short term rather than the sorts of reforms that may be needed to preserve the court’s institutional power and position in the U.S. constitutional system. If the commission isn’t careful, its decisions could rely on a metric grounded in the very partisanship from which they are trying to save the court.
Institutional legitimacy matters deeply for democratic institutions, and the commission is rightly paying close attention to whether any reforms would improve or reduce public support for the court. Happily, scholars have produced a rich body of research on judicial legitimacy in the United States and abroad. As it deliberates, the commission may wish to rely on that research and ensure that its concept of legitimacy goes deeper than mere public approval of particular decisions.
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Michael J. Nelson is the Jeffrey L. Hyde and Sharon D. Hyde and Political Science Board of Visitors Early Career Professor in Political Science, associate professor of political science, and affiliate faculty at Penn State Law. He is the author, most recently, of “Judging Inequality: State Supreme Courts and the Inequality Crisis” (Russell Sage Foundation, 2021), with co-author James L. Gibson.