The Limits of Judicial Persuasion and the Fragility of Judicial Legitimacy

Abstract

Experimental research has yielded findings that are largely optimistic about the Court’s powers to move public attitudes. But left largely unexplored is whether the Court’s pronouncements simultaneously cause the Court to lose support among those who disagree with it. Here we explore these questions using a two-wave survey experiment with a nationally representative sample of Americans. We find that learning of the Court’s rulings moves opinion toward the Court in an unmistakable fashion in only one out of six cases studied (the decriminalization of same-sex relations in Lawrence v. Texas). More significant, we find strong evidence that unpopular Court rulings result in a loss of legitimacy for the Court—but only among conservatives. Our findings suggest that in contemporary American politics, the persuasive powers of the Court are more limited and the institutional legitimacy of the Court more fragile than implied by previous work.

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