Has Legal Realism Damaged the Legitimacy of the U.S. Supreme Court?


  • Support for collecting the 2005 data was provided by Atlantic Philanthropies in a grant to the Center for Democracy and the Third Sector (CDATS) at Georgetown University, and by the Weidenbaum Center at Washington University in St. Louis. Marc Morjé Howard, with the assistance of James L. Gibson, was primarily responsible for executing that survey. We greatly appreciate Howard's untiring efforts on the 2005 project, as well as the support for this research Steven S. Smith provided. We also appreciate the research assistance of Marc Hendershot, Jessica Flanigan, and Christina Boyd on that project. For the subsequent two interviews of the 2005–2006 panel survey, support was provided by the Law and Social Sciences Program of the National Science Foundation (SES-0553156). Any opinions, findings, and conclusions or recommendations expressed in this article are those of the authors and do not necessarily reflect the views of the National Science Foundation. Additional funding for the 2006 survey was provided by the Mershon Center for International Security Studies of the Ohio State University (“The Legitimacy of the Supreme Court and Critical Nominations”), to whom we are much indebted. We much appreciate the comments of Jesse Atencio on an earlier version of this article. Please address correspondence to James L. Gibson, Weidenbaum Center on the Economy, Government, and Public Policy, Washington University in St. Louis, Campus Box 1063, 170 Seigle Hall, St. Louis, MO 63130-4899; e-mail: jgibson@wustl.edu.


Does understanding how U.S. Supreme Court justices actually decide cases undermine the institutional legitimacy of the nation's highest court? To the extent that ordinary people recognize that the justices are deciding legal disputes on the basis of their own ideological biases and preferences (legal realism and the attitudinal model), the belief that the justices merely “apply” the law (mechanical jurisprudence and the myth of legality) is difficult to sustain. Although it is easy to see how the legitimacy of the Supreme Court, the most unaccountable of all American political institutions, is nurtured by the view that judicial decisionmaking is discretionless and mechanical, the sources of institutional legitimacy under legal realism are less obvious. Here, we demonstrate, using a nationally representative sample, that the American people understand judicial decisionmaking in realistic terms, that they extend legitimacy to the Supreme Court, and they do so under the belief that judges exercise their discretion in a principled and sincere fashion. Belief in mechanical jurisprudence is therefore not a necessary underpinning of judicial legitimacy; belief in legal realism is not incompatible with legitimacy.