The Supreme Court and the US Presidential Election of 2000: Wounds, Self-Inflicted or Otherwise?

British Journal of Political Science

Volumn 33, Issue 4, 2003, Pages 535-556

  Gibson, James L ^a   Caldeira, Gregory A ^b   Spence, Lester Kenyatta ^a  

^a WASHINGTON UNIVERSITY   (United States)

^b NONE

Author keywords

[No Author keywords available]

Indexed keywords

EID: 0142054927     PISSN: 00071234     EISSN: None     Source Type: Journal    
DOI: 10.1017/S0007123403000243     Document Type: Review

References (57)

1. Bush v. Gore, 531 U.S. 98 (2000).
2. Erwin Chemerinsky, 'Bush v. Gore Was Not Justiciable', Notre Dame Law Review, 76 (2001), 1093-112.
3. See, for instance, Peter Berkowitz and Benjamin Wittes, 'The Professors and Bush v. Gore', Wilson Quarterly, 25 (2001), 76-89; Vincent Bugliosi, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President (New York: Thunder's Mouth Press/Nation Books, 2001).
4. See, for instance, Peter Berkowitz and Benjamin Wittes, 'The Professors and Bush v. Gore', Wilson Quarterly, 25 (2001), 76-89; Vincent Bugliosi, The Betrayal of America: How the Supreme Court Undermined the Constitution and Chose Our President (New York: Thunder's Mouth Press/Nation Books, 2001).
5. A copy of the advertisement, as well as much additional material and criticism, can be found at: http://www.the-rule-of-law.com/ (accessed 7 December 2001).
6. For instance, it was common for polling agencies to ask whether Bush won the presidency 'legitimately', whether the outcome was 'legitimate', or whether Bush's presidency is 'legitimate', Pollsters rarely defined 'legitimacy' for their respondents, although Zogby International did ask the following question: 'If you define legitimacy as the will of the people, do you consider a George W. Bush presidency legitimate?' In response, 59 per cent said 'yes' and 37 per cent said 'no'. See Karlyn H. Bowman, The 2000 Election: What the Polls Said, at www.aei.org/ps/psbowman6.pdf (accessed 23 November 2001).
7. Frank Goodman, 'Preface', Annals of the American Academy of Political and Social Science, 574 (2001), 9-23, notes: the decision 'generated a blizzard of criticism, much of it characterizing the per curiam decision as a grievous self-inflicted wound that threatens to diminish public respect for the Court'. See the dissent of Justice Breyer, Bush v. Gore, 531 U.S. 98 (2000), 157-8 who also used the term in his opinion.
8. See, for example, Valerie J. Hoekstra, 'The Supreme Court and Local Public Opinion', American Political Science Review, 94 (2000), 89-100.
9. David Easton, A Systems Analysis of Political Life (New York: Wiley, 1965); David Easton, 'A Re-Assessment of the Concept of Political Support', British Journal of Political Science, 5 (1975), 435-57.
10. David Easton, A Systems Analysis of Political Life (New York: Wiley, 1965); David Easton, 'A Re-Assessment of the Concept of Political Support', British Journal of Political Science, 5 (1975), 435-57.
11. Easton, A Systems Analysis of Political Life, p. 273.
12. Comparativists, such as George Tsebelis, 'Veto Players and Institutional Analysis', Governance, 13 (2000), 441-74, focus on courts as 'veto players' and have acknowledged that legitimacy is a necessary resource if courts are to play this role. See also James L. Gibson and Gregory A. Caldeira, 'Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court', Journal of Politics, 65 (2003), 1-30.
13. Comparativists, such as George Tsebelis, 'Veto Players and Institutional Analysis', Governance, 13 (2000), 441-74, focus on courts as 'veto players' and have acknowledged that legitimacy is a necessary resource if courts are to play this role. See also James L. Gibson and Gregory A. Caldeira, 'Defenders of Democracy? Legitimacy, Popular Acceptance, and the South African Constitutional Court', Journal of Politics, 65 (2003), 1-30.
14. Anke Grosskopf and Jeffrey J. Mondak, 'Do Attitudes Toward Specific Supreme Court Decisions Matter? The Impact of Webster and Texas v. Johnson on Public Confidence in the Supreme Court', Political Research Quarterly, 51 (1998), 633-4.
15. Grosskopf and Mondak, 'Do Attitudes Toward Specific Supreme Court Decisions Matter?', p. 634.
16. Some experimental studies, based mainly on undergraduate students, also support the view that people update their opinions of institutions on the basis of their reactions to individual decisions. See, for instance, Jeffery J. Mondak, 'Institutional Legitimacy and Procedural Justice: Reexamining the Question of Causality', Law and Society Review, 27 (1998), 599-608. See also Jeffery J. Mondak, 'Substantive and Procedural Aspects of Supreme Court Decisions as Determinants of Institutional Approval', American Politics Quarterly, 19 (1991), 174-88; Jeffery J. Mondak, 'Institutional Legitimacy, Policy Legitimacy, and the Supreme Court', American Politics Quarterly, 20 (1992), 457-77; and Valerie J. Hoekstra, 'The Supreme Court and Opinion Change: An Experimental Study of the Court's Ability to Change Opinion', American Politics Quarterly, 23 (1995), 109-29.
17. Some experimental studies, based mainly on undergraduate students, also support the view that people update their opinions of institutions on the basis of their reactions to individual decisions. See, for instance, Jeffery J. Mondak, 'Institutional Legitimacy and Procedural Justice: Reexamining the Question of Causality', Law and Society Review, 27 (1998), 599-608. See also Jeffery J. Mondak, 'Substantive and Procedural Aspects of Supreme Court Decisions as Determinants of Institutional Approval', American Politics Quarterly, 19 (1991), 174-88; Jeffery J. Mondak, 'Institutional Legitimacy, Policy Legitimacy, and the Supreme Court', American Politics Quarterly, 20 (1992), 457-77; and Valerie J. Hoekstra, 'The Supreme Court and Opinion Change: An Experimental Study of the Court's Ability to Change Opinion', American Politics Quarterly, 23 (1995), 109-29.
18. Some experimental studies, based mainly on undergraduate students, also support the view that people update their opinions of institutions on the basis of their reactions to individual decisions. See, for instance, Jeffery J. Mondak, 'Institutional Legitimacy and Procedural Justice: Reexamining the Question of Causality', Law and Society Review, 27 (1998), 599-608. See also Jeffery J. Mondak, 'Substantive and Procedural Aspects of Supreme Court Decisions as Determinants of Institutional Approval', American Politics Quarterly, 19 (1991), 174-88; Jeffery J. Mondak, 'Institutional Legitimacy, Policy Legitimacy, and the Supreme Court', American Politics Quarterly, 20 (1992), 457-77; and Valerie J. Hoekstra, 'The Supreme Court and Opinion Change: An Experimental Study of the Court's Ability to Change Opinion', American Politics Quarterly, 23 (1995), 109-29.
19. Some experimental studies, based mainly on undergraduate students, also support the view that people update their opinions of institutions on the basis of their reactions to individual decisions. See, for instance, Jeffery J. Mondak, 'Institutional Legitimacy and Procedural Justice: Reexamining the Question of Causality', Law and Society Review, 27 (1998), 599-608. See also Jeffery J. Mondak, 'Substantive and Procedural Aspects of Supreme Court Decisions as Determinants of Institutional Approval', American Politics Quarterly, 19 (1991), 174-88; Jeffery J. Mondak, 'Institutional Legitimacy, Policy Legitimacy, and the Supreme Court', American Politics Quarterly, 20 (1992), 457-77; and Valerie J. Hoekstra, 'The Supreme Court and Opinion Change: An Experimental Study of the Court's Ability to Change Opinion', American Politics Quarterly, 23 (1995), 109-29.
20. Hoekstra, 'The Supreme Court and Local Public Opinion', p. 97.
21. Hoekstra, 'The Supreme Court and Local Public Opinion', p. 99.
22. Grosskopf and Mondak, 'Do Attitudes Toward Specific Supreme Court Decisions Matter?', pp. 641-2.
23. One justification for a study such as Hoekstra's is that, under most circumstances, ordinary people have insufficient information to form judgements of Supreme Court decisions. Such is clearly not the case with Bush v. Gore.
24. Bowman, The 2000 Election.
25. Herbert M. Kritzer, 'The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court', Judicature, 85 (2001), 32-8, p. 36 (emphasis in the original).
26. Instead, the question on which his analysis relies measures approval of the job performance of the Court, Bush v. Gore, 531 U.S. 98 (2000), p. 34, not institutional loyalty.
27. For technical details on the survey, see Appendix A to the website version of this article.
28. Gregory A. Caldeira and James L. Gibson, 'The Etiology of Public Support for the Supreme Court', American Journal of Political Science, 36 (1992), 635-64; James L. Gibson, Gregory A. Caldeira and Vanessa Baird, 'On the Legitimacy of National High Courts', American Political Science Review, 92 (1998), 343-58; Gregory A. Caldeira and James L. Gibson, 'The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support', American Political Science Review, 89 (1995), 356-76; James L. Gibson and Gregory A. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and European Court of Justice', American Journal of Political Science, 39 (1995), 459-89; James L. Gibson and Gregory A. Caldeira, 'Changes in the Legitimacy of the European Court of Justice: A Post-Maastricht Analysis', British Journal of Political Science, 28 (1998), 63-91; Gibson and Caldeira, 'Defenders of Democracy?'
29. Gregory A. Caldeira and James L. Gibson, 'The Etiology of Public Support for the Supreme Court', American Journal of Political Science, 36 (1992), 635-64; James L. Gibson, Gregory A. Caldeira and Vanessa Baird, 'On the Legitimacy of National High Courts', American Political Science Review, 92 (1998), 343-58; Gregory A. Caldeira and James L. Gibson, 'The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support', American Political Science Review, 89 (1995), 356-76; James L. Gibson and Gregory A. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and European Court of Justice', American Journal of Political Science, 39 (1995), 459-89; James L. Gibson and Gregory A. Caldeira, 'Changes in the Legitimacy of the European Court of Justice: A Post-Maastricht Analysis', British Journal of Political Science, 28 (1998), 63-91; Gibson and Caldeira, 'Defenders of Democracy?'
30. Gregory A. Caldeira and James L. Gibson, 'The Etiology of Public Support for the Supreme Court', American Journal of Political Science, 36 (1992), 635-64; James L. Gibson, Gregory A. Caldeira and Vanessa Baird, 'On the Legitimacy of National High Courts', American Political Science Review, 92 (1998), 343-58; Gregory A. Caldeira and James L. Gibson, 'The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support', American Political Science Review, 89 (1995), 356-76; James L. Gibson and Gregory A. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and European Court of Justice', American Journal of Political Science, 39 (1995), 459-89; James L. Gibson and Gregory A. Caldeira, 'Changes in the Legitimacy of the European Court of Justice: A Post-Maastricht Analysis', British Journal of Political Science, 28 (1998), 63-91; Gibson and Caldeira, 'Defenders of Democracy?'
31. Gregory A. Caldeira and James L. Gibson, 'The Etiology of Public Support for the Supreme Court', American Journal of Political Science, 36 (1992), 635-64; James L. Gibson, Gregory A. Caldeira and Vanessa Baird, 'On the Legitimacy of National High Courts', American Political Science Review, 92 (1998), 343-58; Gregory A. Caldeira and James L. Gibson, 'The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support', American Political Science Review, 89 (1995), 356-76; James L. Gibson and Gregory A. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and European Court of Justice', American Journal of Political Science, 39 (1995), 459-89; James L. Gibson and Gregory A. Caldeira, 'Changes in the Legitimacy of the European Court of Justice: A Post-Maastricht Analysis', British Journal of Political Science, 28 (1998), 63-91; Gibson and Caldeira, 'Defenders of Democracy?'
32. Gregory A. Caldeira and James L. Gibson, 'The Etiology of Public Support for the Supreme Court', American Journal of Political Science, 36 (1992), 635-64; James L. Gibson, Gregory A. Caldeira and Vanessa Baird, 'On the Legitimacy of National High Courts', American Political Science Review, 92 (1998), 343-58; Gregory A. Caldeira and James L. Gibson, 'The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support', American Political Science Review, 89 (1995), 356-76; James L. Gibson and Gregory A. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and European Court of Justice', American Journal of Political Science, 39 (1995), 459-89; James L. Gibson and Gregory A. Caldeira, 'Changes in the Legitimacy of the European Court of Justice: A Post-Maastricht Analysis', British Journal of Political Science, 28 (1998), 63-91; Gibson and Caldeira, 'Defenders of Democracy?'
33. Gregory A. Caldeira and James L. Gibson, 'The Etiology of Public Support for the Supreme Court', American Journal of Political Science, 36 (1992), 635-64; James L. Gibson, Gregory A. Caldeira and Vanessa Baird, 'On the Legitimacy of National High Courts', American Political Science Review, 92 (1998), 343-58; Gregory A. Caldeira and James L. Gibson, 'The Legitimacy of the Court of Justice in the European Union: Models of Institutional Support', American Political Science Review, 89 (1995), 356-76; James L. Gibson and Gregory A. Caldeira, The Legitimacy of Transnational Legal Institutions: Compliance, Support, and European Court of Justice', American Journal of Political Science, 39 (1995), 459-89; James L. Gibson and Gregory A. Caldeira, 'Changes in the Legitimacy of the European Court of Justice: A Post-Maastricht Analysis', British Journal of Political Science, 28 (1998), 63-91; Gibson and Caldeira, 'Defenders of Democracy?'
34. G. R. Boynton and Gerhard Loewenberg, 'The Development of Public Support for Parliament in Germany, 1951-1959', British Journal of Political Science, 3 (1973), 169-89.
35. Gregory A. Caldeira, 'Public Opinion and the Supreme Court: FDR's Court-Packing Plan', American Political Science Review, 81 (1987), 1139-54.
36. Herman Schwartz, The Struggle for Constitutional Justice in Post-Communist Europe (Chicago: The University of Chicago Press, 2000).
37. See Caldeira and Gibson, The Etiology of Public Support for the Supreme Court', p. 638, quoting from Gerhard Loewenberg, 'The Influence of Parliamentary Behavior on Regime Stability', Comparative Politics, 3 (1971), 177-200.
38. See Caldeira and Gibson, The Etiology of Public Support for the Supreme Court', p. 638, quoting from Gerhard Loewenberg, 'The Influence of Parliamentary Behavior on Regime Stability', Comparative Politics, 3 (1971), 177-200.
39. For a cross-national comparison of responses to this item see Gibson, Caldeira and Baird, 'On the Legitimacy of National High Courts'.
40. This approach to assessing change is based on data availability and suffers from several important potential liabilities. For instance, it could very well be that by October 2000, support for the Supreme Court was at much higher levels than it was in 1987 or 1995, and that the election brought support down to more pedestrian levels. We know of no reason why this potentiality might be so, but we also have no evidence with which to discount it. Further, the potential causes of change in attitudes between the current and earlier surveys are numerous; to attribute all temporal differences to the effects of the election might well over-estimate the influence of that event. Ultimately, our goal is build a case for a conclusion based on a variety of bits of evidence, no single piece of which is dispositive.
41. Caldeira and Gibson, 'The Etiology of Public Support for the Supreme Court'.
42. As the notes to Table 2 make clear, the question wording in the two surveys is not identical. Thus, in assessing change, we focus on overall patterns rather than on any single question.
43. This study included no over-sample of African Americans. See Gibson, Caldeira and Baird, 'On the Legitimacy of National High Courts'.
44. See John M. Scheb II and William Lyons, 'The Myth of Legality and Public Evaluation of the Supreme Court', Social Science Quarterly, 81 (2000), 928-40, on the use of legal criteria in Supreme Court decision making.
45. Caldeira and Gibson, 'The Etiology of Public Support for the Supreme Court'.
46. See Appendix B of the website version of this article for the text of all the items used in this analysis, and Appendix C on the author's website at http://artsci.wustl.edu/̃legit/index.html for the field report associated with it.
47. Gibson, Caldeira and Baird, 'On the Legitimacy of National High Courts'; Scheb and Lyons, 'The Myth of Legality and Public Evaluation of the Supreme Court'.
48. Gibson, Caldeira and Baird, 'On the Legitimacy of National High Courts'; Scheb and Lyons, 'The Myth of Legality and Public Evaluation of the Supreme Court'.
49. Walter F. Murphy, Joseph Tanenhaus and Daniel Kastner, Public Evaluations of Constitutional Courts: Alternative Explanations (Beverly Hills, Calif.: Sage Publications, 1973).
50. 2 increases insignificantly, (b) the regression coefficient for ideology in both instances is trivial and statistically insignificant, and (c) that the regression coefficients for affect towards Bush change only in the hundredth's digit. We obtain just about the same results when we use feeling thermometers for 'liberals' and 'conservatives', although there is a slight tendency for those feeling wanner towards liberals to extend more legitimacy to the Supreme Court (and of course this is an effect independent of affect towards Bush). The impact of feelings towards Bush thus seems to run through a process entirely independent of ideology. We have also examined Table 5 from the point-of-view of omitting the Bush affect variable. Doing so increases the influence of two variables (with the same pattern for both dependent variables): party identification and perceptions of who won Florida. Thus, we understand the Bush affect variable as 'electoral partisanship' - which side one is on. It is connected to party attachments, but is not identical. It reflects perceptions of who won the election, but those perceptions also have an independent existence. If we had such a measure, electoral partisanship might also be connected to perceptions of how Bush handled himself during the election dispute.
51. In two-stage least squares, the first-stage equations include all of the exogenous variables. Our point is that this technique is best able to disentangle reciprocal causation when (a) the first-stage equations strongly predict the endogenous variables, and (b) each endogenous variable is uniquely predicted by at least some of the endogenous variables. In this instance, these desiderata are satisfied.
52. Both loyalty and fairness range from 1 to 5. The respective means (and standard deviations) of the two variable are: 3.58 (0.79) and 3.25 (1.82).
53. Scheb and Lyons, 'The Myth of Legality and Public Evaluation of the Supreme Court', p. 929.
54. This analysis cannot be conducted with the 1995 data since party attachments were not measured in that survey.
55. Kritzer, The Impact of Bush v. Gore on Public Perceptions and Knowledge of the Supreme Court'.
56. Based on a survey conducted in 1987, James L. Gibson and Gregory A. Caldeira, 'Blacks and the United States Supreme Court: Models of Diffuse Support', Journal of Politics, 52 (1992), 1120-45, suggest that African Americans adjusted their views of the Supreme Court due to the declining success of black litigants before the Burger and Rehnquist Courts. They did discover, however, a generation of blacks defined by the Warren Court that still has an unusually strong attachment to the Supreme Court, despite dissatisfaction with current Court policies.
57. See James L. Gibson, Gregory A. Caldeira and Lester Kenyatta Spence, 'Measuring Attitudes Toward the United States Supreme Court', American Journal of Political Science, 47 (2003), 354-67.