The study of public opinion about the courts is closely tied to concerns that date back to the Constitutional Convention. Then, and subsequently, it has been noted that while the executive branch has the power of the sword and the legislative branch the power of the purse, for compliance with its orders, the judiciary uniquely must rely on the public’s belief in its legitimacy.
Public opinion today about the U.S. Supreme Court is different from public opinion about the other, “lower” courts; the U.S. Supreme Court enjoys consistently higher levels of confidence, support, and loyalty. This is often explained by reference to political and legal socialization, which inculcates loyalty to the Supreme Court. Other courts do not appear to benefit from such socialization. For the trial courts, with which the public can have direct contact, the public has modest levels of confidence, loyalty, and support. The lower courts need to continually demonstrate that they deserve the public’s compliance by making decisions through procedures that the public perceives as fair. African Americans are less likely than members of other groups to be persuaded that fair procedures are being used.
The Public’s Image of the Courts
The level of public support for and confidence in the courts is best assessed in comparison with other public institutions. Both the U.S. Supreme Court and the lower courts tend to be ranked higher than the executive or legislative branches of government. The relative advantage is considerable for the U.S. Supreme Court and modest for other courts. Other courts tend to be rated lower than the police and similar to local schools and executive bodies but higher than legislative bodies and the mass media. The public is most critical of how courts handle juvenile and family cases and generally of the processing of cases in high-volume court venues such as traffic and small claims. The jury system is the most highly rated component of the courts. Former jurors, in turn, are the group most likely to hold positive views about the courts.
The public, in general, knows very little about how the courts work and is not attentive to issues regarding the courts. Many public opinion surveys about the courts, virtually all concerning trial courts, have been carried out at the national and state levels over the past 30 years. What emerges from the accumulation of confidence survey findings is a national stereotype that does not vary greatly from state to state or from one decade to the next. A stereotype is the shorthand description of “courts” that comes up in people’s head—images that are commonly held, some positive and others negative.
On the positive side, people tend to believe that judges are well qualified and honest, defend people’s rights, and treat people with dignity and respect. In recent years, it has become clear that people like alternative dispute-resolution methods, such as arbitration and mediation, and are highly positive about the features of problem-solving (drug and domestic violence) courts.
On the negative side, the list is longer. People report that courts are slow, difficult, and costly to access; do not allow people to participate meaningfully in court proceedings; and are out of touch with community sentiment. The presumed leniency of judges in sentencing offenders is another negative characteristic but one that may now be declining in significance. The majority of the public believes that the courts produce less favorable outcomes if you are a member of a minority group, on a low income, or a non-English speaker. Finally, studies indicate that African Americans have less confidence in the courts, on average, than do other Americans. This does not extend to all minority groups; Asian Americans generally have a positive view of the courts, while the position of Latinos depends on the specific context and topic under consideration.
In an important sense, the lower courts have two publics. One consists of the slightly more than half of all adults with one or more direct experiences of the courts. The most common form of such experience is serving as a member of a jury, applicable to about one adult in four. That proportion has been rising in recent decades in response to jury source list reform and the reduction in occupational exemptions.
The public with direct court experience tends to remember those encounters for decades, no matter how trivial objectively, and draw heavily on them when evaluating the courts. Among those with court experience, the extent of exposure to media representations of the courts, perceptions of judicial leniency in sentencing, and political ideology are poor predictors of confidence in or support of the courts. The opposite is true for people without direct experience, who appear to draw on a national rather than a locally formed image of the courts.
The evidence points to a slightly negative general impact of court experience per se, but one that varies according to the role a person played in a case. Individuals serving on a jury (as opposed to the essentially neutral impact of being summoned but not seated as a juror) are the most positive, while civil litigants tend to be the most negative.
Explaining Opinions about the Court
Those interested in explaining the sources of support for the U.S. Supreme Court rely primarily on legitimacy theory, which emphasizes institutional loyalty. Research on the U.S. Supreme Court sought to explain the sources of two types of support and their interrelationship. Diffuse support is a willingness to accept the decisions of the Court as legitimate, a belief that the Court has the right to decide questions of constitutional interpretation. Specific support, the other aspect, refers to responses to individual decisions issued by the Court.
Specific support rises and falls as individuals react to well-publicized decisions. Diffuse support tends to vary little. Even the polarizing decision in Bush v. Gore (2000) did not diminish the reservoir of goodwill for the Court. In the immediate aftermath of the decision, support for the Court among the Democrats sharply declined and that of Republicans increased just as sharply. Over time, people return to the loyalty or diffuse support that they had for the U.S. Supreme Court prior to a controversial decision. Research suggests that the U.S. Supreme Court is more effective than other parts of government in leveraging its perceived legitimacy into compliance with unpopular decisions and presumably more so than the lower courts.
Early studies of public opinion about the lower courts focused on the influence of socioeconomic and demographic backgrounds on satisfaction with the outcomes of specific cases and with the courts generally. Opinions were predicted to vary according to a person’s educational level, gender, race and ethnicity, political ideology, and knowledge of the courts.
Starting in the mid-1970s, social psychologists took a different direction by focusing on perceptions of the fairness of court procedures. A substantial body of research applying a variety of methodologies in a wide range of adjudicatory contexts, and in many countries, established that the perception of procedural fairness is the most important influence on a court user’s satisfaction with the courts. People who lose in the courtroom can nonetheless leave satisfied with their day in court, confident in the courts, and likely to comply with the court’s decisions.
The work of Tom Tyler and his colleagues provides the theoretical basis for anticipating such a finding. They argued that the public’s concerns had more to do with “relational” issues than with “instrumental” factors such as the absolute or relative outcome. Group value theory explains this expectation: People value their membership in social groups and seek evidence that they are indeed valued by those groups. The behavior of the judge, or other decision maker, provides the confirmation.
Procedural fairness consists of various “symbolic criteria” that people can look for as they assess how they are being treated:
- Respect: Being treated with dignity and having one’s rights respected
- Neutrality: Decision makers who are honest and impartial and who base decisions on facts
- Voice: Having the opportunity to express one’s viewpoint to the decision maker
- Trustworthiness: Benevolent and caring decision makers, who are motivated to treat you fairly, are sincerely concerned about your needs, and consider your side of the story
Voice is the element of procedural fairness on which the courts tend to score the lowest relative to the executive and legislative branches; neutrality is where they tend to score the highest. People with direct experience tend to focus on what they can use to decide on the judge’s trustworthiness. In the absence of such experience, the focus is on clues about neutrality.
The significance of procedural fairness is that when measured and placed in a predictive model of satisfaction with the courts, sociodemographic characteristics, including race, and political ideology tend to be statistically insignificant. In other words, if African Americans are less satisfied with the courts, it is because they perceive less procedural fairness in the courts than do other groups. Factors related to the practical side of court performance, as in cost and case delay, also tend to be far less consequential than perceptions of fairness. This is particularly true among people who had experience of a court case. People with no court experience give greater attention to the practical side of court operations, but their perception of procedural fairness still is the primary factor influencing their support for the courts. Researchers are more successful in predicting the opinions of people with court experience than of those without such experience.
There is an important exception to this general pattern. Judges and lawyers generally tend to attach greater importance to the fairness of outcomes than to procedural fairness. There may be a practical dimension to this reverse of the pattern found in the public at large. Judges are able to evaluate the fairness of legal decisions and are less concerned about confirming their value to the group. The public, however, is poorly equipped to assess legal decisions and therefore focuses on whatever clues it can find on how it and others are being treated by the decision maker.
Thus, perceptions of procedural fairness assume an overwhelming importance in shaping public responses to specific court decisions or broader opinions on the courts in general. Procedural fairness can be used to explain reactions to U.S. Supreme Court decisions. The majesty and mystery with which the Court surrounds its decision-making process appears to conform to the symbols people associate with a fair process. Consequently, some observers have questioned whether the public is being too generous in its esteem for the Supreme Court.
- Bush v. Gore, 531 U.S. 98 (2000).
- Gibson, J., Calderia, G., & Spence, L. K. (2003). Measuring attitudes toward the United States Supreme Court. American Journal of Political Science, 47(2), 354-367.
- Heuer, L. (2005). What’s just about the criminal justice system? A psychological perspective. Journal of Law and Policy, 13(1), 209-228.
- Hibbing, J. R., & Theiss-Morse, E. (2001). Process preferences and American politics: What the people want government to be. American Political Science Review, 95(1), 145-153.
- MacCoun, R. (2005). Voice, control and belonging: The double-edged sword of procedural fairness. Annual Review of Law and Psychology, 1, 171-201.
- Tyler, T. (1990). Why people obey the law. New Haven, CT: Yale University Press.
- Tyler, T. (2001). Public trust and confidence in legal authorities: What do majority and minority group members want for the law and legal institutions? Behavioral Science & Law, 19(2), 215-235.