The right-wing Judicial Crisis Network has launched a $10 million advertising campaign to put public pressure on Democratic politicians who oppose President Trump’s nomination of Judge Neil Gorsuch to the U.S. Supreme Court.
While ideological fights over who controls the courts are nothing new, my research suggests that this use of political advertising to sway public opinion of a nominee may do real damage to the the institutional legitimacy of the U.S. Supreme Court in the eyes of the American people.
In Citizens, Courts, and Confirmations, Gregory Caldeira and I focused on the 2006 nomination of Samuel Alito to the U.S. Supreme Court. During that confirmation battle, proponents and opponents of Alito’s confirmation ran intensely politicized television ads trying to shape public opinion on the nomination.
Using surveys of public opinion, we demonstrated that the ads spilled over to infect support for the Court as an institution, subtracting from its legitimacy. In order to understand how and why this happened, it’s important to consider what political scientists (including Caldeira and I) have discovered is the main source of the Court’s legitimacy.
Despite the arguments of some judges to the contrary, the American people do not believe that judges somehow mystically “find” the law. They realize, instead, that judges’ ideologies matter, that liberal and conservative judges make different decisions, and that they do so on the basis of honest intellectual differences. This philosophy is called “legal realism,” and it is widely embraced by the American people.
But there is a difference between honest ideological differences and the politicization of the courts. When people believe that a judge “is just another politician,” or that courts are filled with such judges, legitimacy suffers. The American people do not think highly of politicians. Politicians are seen as self-interested and insincere. That means one can rarely believe what politicians say because they so rarely say what they believe. It is not ideology that Americans oppose, but rather the insincere and strategic way that contemporary politics is fought.
Our analysis discovered that it is not damaging to the Court when Americans recognize that judges hold different ideologies and that those ideologies strongly influence their decisions. But when judges cross the line, when they engage in overly politicized behavior—either on the bench or off—then the Court’s legitimacy is threatened. Scalia’s intemperate language in his opinions is one such example of judges venturing into partisanship; so, too, is Ginsburg’s attempt to influence last year’s presidential election. Still, events like these do not widely penetrate the consciousness of the American people, and so in the end, they likely have small effects on institutional legitimacy.
The same cannot be said of televised advertisements. Millions of Americans are exposed to these churlish and politicized ads, and so they take their toll. The lesson of these ads is too often the same: The “Supreme Court is just another political institution,” worthy of no more esteem than the other institutions of government. As this belief becomes widespread, the institution of the Court is harmed.
Our analysis demonstrates that while Alito got his seat on the Supreme Court, the court he joined had a diminished supply of goodwill among the Court’s constituents, the American people. It also makes clear that the upcoming nomination fights have implications beyond who does and doesn’t get a seat on the bench. At stake is the very legitimacy of the U.S. Supreme Court.
James L. Gibson is the Sidney W. Souers Professor of Government at Washington University. He is the coauthor of Citizens, Courts, and Confirmations: Positivity Theory and the Judgments of the American People.