Resumen: While important for every political institution, diffuse support -also called institutional legitimacy- is especially vital for courts. Conventional wisdom suggests that the U.S. Supreme Court enjoys a uniquely high level of public support; widespread pessimism colors existing assessments of high courts’ legitimacy throughout the Americas. We show that not only is the U.S. Supreme Court not an anomaly, but the widespread assumption that Latin American courts are lacking in public legitimacy is fundamentally wrong. We conclude with a discussion of the implications of this research for future endeavors and make our case for more careful measurement and interpretation of these critical concepts in future research.
Palabras clave: legitimidadlegitimidad,política judicialpolítica judicial,relaciones entre Poderesrelaciones entre Poderes,América LatinaAmérica Latina,conformidadconformidad.
Abstract: Si bien es importante para todas las instituciones políticas, el apoyo difuso -también llamado legitimidad institucional- es especialmente vital para los tribunales. Elsaber convencional sugiere que la CorteSuprema en EstadosUnidosgozadeunnivelexcepcionalmentealtodeapoyopúblico;mientras que existe un pesimismo generalizado al evaluar la legitimidad de los tribunales superiores en América Latina. El artículo demuestra que no solo la Corte Suprema de los Estados Unidos no es una anomalía, sino que la suposición generalizada de que los tribunales latinoamericanos carecen de legitimidad pública es errónea. Se concluye con una discusión de las implicaciones de esta investigación, en pos de una interpretación más cuidadosa de estos conceptos de cara a una futura agenda de investigación.
Keywords: legitimacy, judicial politics, inter-branch relations, Latin America, compliance.
Artículo
There is no legitimacy crisis: Support for judicial institutions inmodernLatinAmerica
Sin crisis de legitimidad: el apoyo a las instituciones judiciales en la AméricaLatinacontemporánea
Sociedad Argentina de Análisis Político
Recepción: 07 Diciembre 2018
Aprobación: 07 Diciembre 2018
All political institutions require the support of the public in order to be effective (Easton, 1965). Scholars widely agree that the public’s diffuse support -otherwise known as legitimacy- is of unique importance for courts because these institutions cannot directly enforce their decisions. Reviewing a mature corpora of work on the institutional legitimacy of the U.S. Supreme Court, Gibson (2007) argues that “in comparison to other nationalhighcourts,theU.S.SupremeCourtenjoysanextraordinarilywide anddeep‘reservoirofgoodwill’ onlyahandfulofinstitutionshassupport percentagesapproachingthoseoftheAmericancourt”(522,seealsoGibson, Caldeira, and Baird, 1998).
Outside of the United States, widespread pessimism colors existing assessmentsofpublicsupportfornationalhighcourtsinseparationofpowers systems. Seligson (2007), for example, reports that “nearly all surveys of Latin America have found that citizens hold their national legislatures and judiciaries in low regard” (89). Citing these low levels of public esteem for national high courts, scholars, politicians, and pundits make the leap from general public support to institutional legitimacy, suggesting that judicial institutionsthroughouttheAmericasareinaperpetualstateofcrisis,lacking in both political autonomy and institutional efficacy (Hammergren, 1998; Prillaman, 2000; Domingo, 2004; Helmke, 2005). This contention is not new. Verner (1984) notes the “often cited” assertion that Latin American “supreme courts do not have an effective, popular power base in the population” (473).
Wechallengethisconventionalwisdombycatalogingvariationinpublic supportforcourtsthroughoutseparationofpowerssystemsintheAmericas. We demonstrate that, contrary to common opinion, the assumption that LatinAmericancourtsarewhollylackinginlegitimacyisgenerallymisplaced. In fact, the public displays remarkable consensus in its institutional loyalty to its high courts, though public trust in high courts throughout the region isadmittedlyquitelow.Weattributethistoamisinterpretationofdatathatis widely available, but does not validly measure institutional legitimacy.
This descriptive result carries with it broad empirical and theoretical implications. The public’sunwillingnesstotolerate inter-branch aggression and non-complianceisacentralmechanisminmanyprominenttheoretical modelsofcomparativejudicialindependenceandpower:thethreatofpublic backlash for non-compliance or inter-branch assaults implies that incumbents should have no recourse but to respectthe court and tocomply with itsdecisions(Vanberg,2001; Clark, 2009;Staton, 2010).The centrality of this mechanism, coupled with the widespread assumption that Latin American courts are fundamentally lacking in public support, has fueled a consensus that Latin American courts are weak and ineffective, and that this lack of public legitimacy is ultimately to blame. Helmke (2010a), for example,arguesthat“lowlevelsoflegitimacyappeartohavemoreexplanatory power than several other intuitively plausible causes of judicial instability” (397). The empirical result reported here suggests there is much more to this puzzle than immediately meets the eye and multiple empirical and theoretical assumptions deserve reconsideration in light of these findings.
In his pioneering work on public support, Easton (1965) differentiates between two types of public support that institutions require. Easton identified diffuse support as“form[ing] a reservoir of favorable attitudes or Amanda Driscoll y Michael J. Nelson goodwillthathelpsmemberstoacceptortolerateoutputstowhichtheyare opposed or the effect of which they see as damaging to their wants” (273). Othertermsfordiffusesupportareinstitutionallegitimacy,loyalty,orfealty. Legitimacy represents a willingness to accept the decisions and authority of an institution irrespective of one’s disagreement with its decisions. Institutional legitimacy is often measured with a battery of survey questions that assess the extent to which individuals would tolerate fundamental changestotheinstitutionalstructureofacourt.Anunwillingnesstosupport institutional changes revealsa profound commitment to the institution asit is. In contrast to diffuse support, specific support refers to performance satisfaction and approval of institutional output. Easton (1965) described specificsupportasessentially“aquidproquoforthefulfillmentofdemands”: specific support for an institution increases when an individual agrees with an institution’s outputs, and it declines in the face of disagreement with an institution’s decisions (268).
Inspiteofthecentralityofthese conceptsforbothpuretheoreticaland empirical work, Easton’s distinction between the multiple conceptual dimensions of institutional support -much less their empirical differentiation- is rarely considered directly outside the U.S. contexts (but see, Gibson,Caldeira,and Baird 1998, and Walker,2016).Constrained bya lack of available measures that adequately capture concepts of theoretical interest, analyses of institutional confidence measures are often interpreted as measures of institutional legitimacy (Kapiszewski, 2012; Salzman and Ramsey,2013;Domingo,2004;Helmke,2005,2010b,a).Thisinterpretation isallthemoretroublinginlightoftheworkofGibson,CaldeiraandSpence (2003), who document that the commonly used measures of institutional trust or confidence are more closely related to short-term performance satisfaction (specific support) than diffuse support1. They caution that “low levels of confidence should certainly not be interpreted as indicating low institutionallegitimacy”(361),withotherscholarsraisingsimilarprecautions (Gibson, Caldeira and Baird, 1998; Staton, 2010; Kapiszewski, 2012).
Consequently,theinferencesthathavebeendrawnabouttheinstitutional legitimacy of courts of the Americas are incomplete at best and incorrect at worst.
Our data come from the 2008 Americas Barometer surveys. While these surveys ask similar questions in other years, 2008 is the year with the best coverage across countries on our items of interest2. In Appendix A we show thattheresultsaresimilartootheryearsinwhichsimilarquestionswereincluded in the core questionnaire3. Institutional Trust is measured using the question “To what extent do you trust the Supreme Court?”4 We code respondents as trusting the court if they reported a 5, 6 or 7 on the 7-point Likert response scale.Ourmeasureofdiffusesupportisbasedonrespondents’answerstothe question “Do you believe that there might be a time in which the president would have sufficient reason to dissolve the Supreme Court, or do you think that sufficient reason could never exist?” This question taps abolition of the court, a concept similar to one identified by Gibson, Caldeira and Spence (2003) as a valid measure of Easton’s (1965) original concept of “diffuse support”. We discuss the validity of this measure in the next section.
Figure 1 lends additional credence to the assertion that the region’s high courts suffer a deficit of the public’s trust. The lighter-colored bars in the left-hand panel represent the percentage of respondents who said they trusted their national supreme court in 2008. Two conclusions are readily apparent. First, public trust in national high courts is generally lacking: the regionalaverageisonly38%,withsomecasesthatdipwellbelow20%.Second, theUnitedStatesSupremeCourt-thehighestbarintheplot-faroutpaces itsinstitutionalcounterpartsintermsofpublictrust,withmorethan75%of U.S. respondents reporting trust in the U.S. Supreme Court.
Yet, turning to the right-hand panel of Figure 1, the difference between institutional trust and institutional legitimacy becomes readily apparent. Contrarytocontemporaryconcernsaboutanoverwhelminglackofinstitutional legitimacy, supreme courts throughout Latin America enjoy relatively high levels of institutional loyalty: a large percentage of all national populations profess an unwillingness to tolerate fundamental changes to their national high courts’ institutional integrity. Though the United States has long been assumedtobeuniqueinits“reservoirofgoodwill,”Figure1suggeststhatitis in either unique nor an outlier. Relative to the other supreme courts of the Western Hemisphere, the U.S. stands only slightly above the hemispheric averageof79%.Farfromimplyingwidespreadcrisesoflegitimacy,thesefigures paint a picture of national high courts that, despite the public mistrust they inspire, are nevertheless broadly viewed by the public as a central componentoftheconstitutionalsystem.Takentogether,thesepatternssuggest that we have more to learn about the origins of institutional trust and more profound institutional fealty for the high courts of Latin America.
Figure 1
Darker-coloredbarsrepresentthepercentageofrespondentsansweringinthenegative to the question “Do you believe that there might be a time in which the president would have sufficient reason to dissolve the Supreme Court, or do you think that sufficientreasoncouldneverexist?”Lighter-coloredbarsrepresentthepercentageof respondentsclaiminga5,6or7onthat7-pointLikertscale,takenfromthequestion “TowhatextentdoyoutrusttheSupremeCourt?”ThefiguresreportedfortheUnited Statesaretakenfromthe2006AmericasBarometer.
Some may question whether the question we consider adequately capturesthe concept of diffuse support. Caldeiraand Gibson (1992) argue that measuresofthatconceptshouldproberespondents’“unwillingnesstomake or accept fundamental changes in the functions of the institution” (638). Moreover, Gibson, Caldeira, and Baird (1998) identify an item relating to the abolition of a court as “the clearest and most direct operationalization [of diffuse support]. If one agrees that it may be better to do away with the court...thenobviouslyoneisnotsupportiveoftheinstitution”(348).Similarly, Gibson, Caldeira and Spence (2003) contend that the “item about doing away with the Court has the highest face validity, given Easton’s original conceptualization” (363). Conceptually, then, the item accurately captures the concept of interest. Abolition is the ultimate “fundamental chang[e]”.
Still,weacknowledgethreewaysthatthequestionweevaluateislessthan ideal. First, this question’s wording differs from the one explicitly advocated by Gibson, Caldeira and Spence (2003), leaving the respondentto imagine a hypothetical situation in which she would support an institutional change. Second, the question contains an explicit reference to “the President”. This phrasing might invite contamination. Priming respondents to consider the actions of a presidential incumbent may invoke responses that have more to dowithrespondents’supportfortheincumbentratherthantheircommitment tothehighcourt.Finally,thestandardbatteryofquestionscommonlyanalyzed by Americanists includes a series of items querying respondents about their support for various institutional changes: removing high jurists from office, reducingthejurisdiction ofahighcourt,makingthe courtlessindependent, and doing away with the court altogether. Unfortunately, the full battery of questions was not asked in the Americas Barometer, and one might be concernedthatonlyextremistsarewillingtoabolishasupremecourt.Iftrue, the use of this item would artificially inflate our estimates of diffuse support. In the sections that follow, we probe the validity of this survey item.
ThefirsttwolimitationsrelatetothewordingoftheAmericasBarometer item.ThewordingdiffersfromthatsuggestedbyGibson,CaldeiraandSpence (2003), and it mentions “the president,” raising concerns of contamination. To evaluate the extent to which this question is a valid measure of the underlyingconceptofdiffusesupport,weincludedthetwowordingsusedby the Americas Barometer question on a public opinion survey of 1000 respondentsconductedonAmazonMTurkinDecemberof2017.Weprovide more information on the demographics of our sample in Appendix B.
The survey asked respondents the two Americas Barometer questions alongwithfourquestionssuggestedbyGibson,CaldeiraandSpence(2003):
•If the U.S. Supreme Court started making a lot of decisions that most people disagree with, it might be better to do away with the Court altogether.
•The right of the U.S. Supreme Court to decide certain types of controversial issues should be reduced.
•JusticesontheU.S.SupremeCourtwhoconsistentlymakedecisions atoddswithwhatthemajoritywantsshouldberemoved fromtheir position.
•The U.S. Supreme Court ought to be made less independent so that it listens a lot more to what the people want.
•Do you believe that there might be a time in which the president would have sufficient reason to dissolve the Supreme Court, or do you think that sufficient reason could never exist? (Americas Barometer2006-2008).
•Doyoubelievethatwhenthecountryisfacingverydifficulttimesit isjustifiableforthePresidentofthecountrytodissolvetheSupreme CourtandgovernwithouttheSupremeCourt?(AmericasBarometer 2010-2012).
This six-item scale has high reliability with a Cronbach’s alpha is 0.80. Moreover, the item set is strongly unidimensional, with an eigenvalue of the firstfactorof2.68butamere0.39forthesecondfactor.Thefactorloadingfor the Americas Barometer question item is 0.51 for the Americas Barometer 2008itemand0.58forthe2010wording.Whiletheseitemloadingsarelower theitemloadingsfortheothermeasuresofdiffusesupportinourscale(which range from 0.70-0.74), they are not out of the norm for other measures used inresearchontheU.S.SupremeCourt,andarewellinlinewithwidelysuggested cutoffs5.Thus,ourAmericasBarometerquestionappearstosatisfytraditional metrics for factor loadings onto the same dimension as the gold-standard Gibson,CaldeiraandSpence(2003)items6.Whilethereferencetothepresident or the hypothetical wording does seem to weaken the item’s connection to other, more widely-used measures of the concept, it does not appear to have whollyinvalidated thisquestion asaviable measure oflegitimacy.
Eliminatinganinstitutionofthenationalgovernmentisamonumental change to the structure of a political system. We fully concede that this item may represent an outer bound of support. To this end, we are concerned with the likelihood that this measure artificially inflates our estimates of institutionalsupport,yieldingameaningfuldifferencebetweeninstitutional trust and diffuse support only because our diffuse support item is unrealistically extreme. Empirically, would respondents who support the court on the question of abolition turn their back on the institution when given the opportunity to support other, less extreme measures of court curbing? Were this the case, it would suggest that the estimates in Figure 1 are falsely increased by the use of the abolition item.
Figure 2 provides some data on this point from our MTurk survey. The data for the figure is restricted to those “court-protective” respondents on the abolition question (in other words, they would not abolish the court), andthecolorsofthebarscorrespondtothethreedifferentquestionwordings for that concept. The height of the bars indicates the percentage of those respondents who gave court-protective responses on the remaining three court curbing questions (regarding limiting independence, jurisdiction, or removing controversial judges). If it were the case that the “do away with” item was artificially inflating diffuse support, we should observe relatively high bars on the left-hand side of the figure: respondents are willing to support the Court against abolition but not against other types of attacks.
That is not the case. Irrespective of the wording of the question used to assess the proposal of Court abolition, the respondents who adopt a court-protective stance on the question of abolition are also court-protective on other,similar,items.Onlyasmallnumberofrespondents-lessthan12%- appear to be extremists, supporting the Court on the question of abolition butnotonanyoftheotherinstitutionalcommitmentitems.Whilethereisa gooddealofvariationacrossthenumberofsupportivereplies-afeatureof such a scale, not a drawback- Figure 2 assuages our concerns that a large percentage of respondents support not only keeping the Court, but would protect it on all other fronts.
Figure 2
Diffusesupportforthesupremecourtamongrespondentswhowouldnotabolishthe Court.
Thebarsindicatethepercentageofrespondentswhogavecourt-protectiverepliesin responsetoothercourtcurbingproposals.
In this paper, we have evaluated institutional support for high courts across Latin America. Contrary to conventional wisdom, we suggest that these courts are not lacking in diffuse support; they are widely perceived as legitimateinstitutions.OurdatasuggestthatLatinAmericansupremecourts are just as legitimate as the U.S. Supreme Court, which has been widely regarded as the most legitimate constitutional court in the world.
Thedistinctionwedraw-betweentrustandinstitutionalcommitment- is one with a difference. This research serves as a call for more and ideally continuous systematic research on the micro-foundations of public support forhighcourtsandpoliticalinstitutionswritlarge.Aswithmanycomparative researchers, we stand on the shoulders of the immensely important data gathering capabilities of those who run cross-national surveys. While some questions onthese large-scalesurveyoperations are ideal forsome purposes, otherconceptsofinterestaremeasured imprecisely(orsometimesnotatall). Our analysis suggests that scholars must take care to only interpret measures as applying to specific concepts when the link between concept and measure is clear. Simply put, survey items about institutional trust or confidence do not measure legitimacy. And, of course, when scholars have the opportunity to design and implement their own surveys, they need to take care to design instruments that provide valid indicators of the concepts of interest.
This descriptive result calls into question existing conventional wisdom about the legitimacy of Latin American high courts, as well as related implications for assessments of their institutional integrity and potential efficacy. Institutional legitimacy is theorized to deter would-be institutional assailants and to promote compliance. The threat of backlash has been theorizedasacriticalmechanismforprotectinghighcourtsfromincumbents, who would seek to influence or undermine high courts via court curbing attacks(Vanberg,2001;Clark,2009;Helmke,2010a).IntheLatinAmerican separation of powers systems, this threat of incumbent infringement and institutional assault is ever-present; a lack of institutional legitimacy is commonlypositedtobeatfault(Kapiszewski,2012;Helmke,2010a,b).Our results suggest that there is more to the story here than meets the eye. If Latin American courts are more widely legitimate than previously believed, then it calls into question the benefits of court curbing attempts (c.f. Clark, 2009), and the extent to which a lack of diffuse support is to blame for instability throughout the region (Helmke, 2010a).
Second,butnolessimportant,institutionallegitimacyandthethreatof publicsanctionisalsoakeymechanismforcompliancewithjudicialdecisions. Thisassumptionhasmotivatedabroadandcompellingliteratureonstrategic judicial behavior in high courts around the world (Kapiszewski and Taylor, 2013), impacting everything from the decisions they craft (Vanberg, 2001), interbranch relations (Clark, 2009), and courts’ procedural and publication decisions (Staton, 2010; Krehbiel, 2016). Consequently, it has been largely as-sumedthatLatinAmericancourtsaregenerallyimpotentpoliticalactors andlackinginjudicialpower(Domingo,2004).Broadlyspeaking,ourresults suggest that Latin American high courts may have a reservoir of support that is deep enough to stand up to over- reach by the other branches of governmentandtosecureimplementationoftheirdecisions.Minimally,we have much more to understand.
Country-Year Averages
Table A1 takes a longer view of our measures of institutional support, reportingthenationallevelsofDiffuseSupportandInstitutionalTrustbetween 2006 and 2012. As noted in the paper, the Americas Barometer changed their wording of the diffuse support question throughout this time period. In earlier (2006, 2008) surveys, respondents were posed the following question:“Do you believe that there might be a time in which the president wouldhavesufficientreasontodissolvetheSupremeCourt,ordoyouthink that sufficient reason could never exist?” In later surveys (2010, 2012), the question,whichcontainsmorecontext,wasasked:“Doyoubelievethatwhen thecountryisfacingdifficulttimesitisjustifiableforthepresidenttodissolve the Supreme Court and govern without it?” Diffuse Support was coded as “1” if respondents answered either “No, there’s no sufficient reason [to dissolve the SC]” (2006, 2008), or when they responded “No, it is not justified” to the later surveys (2010, 2012). Where no country averages are reported, the question was not asked in that country-year.
The figures shown in Table A1 suggest that the 2008 values discussed in the text of the paper are not anomalous. Indeed, diffuse support for national courts is consistently high throughout the region. Though there appearstobeamodestupwardtrendinmostcases,thechangeinthewording of the question between 2008 and 2010 may also be to blame for this shift. As was the case in 2008, the national averages for diffuse support remain consistentlyhighacrosscases,whilethepercentagesofrespondentsreporting high levels of trust are consistently low.
Table A1
Diffuse Support and Institutional Trust in the Supreme Court, Country-year Averages
Table B1
Comparison of Sample Demographics
ANES-P is the American National Election Panel Study conducted by Knowledge Networks, and the ANES is the American National Election Study. Data from the ANES are weighted. Data for Christenson and Glick comes from Table A1 of their article (which also forms the basis for this table); data for the remaining columns comes from Table 3 in Berinsky, Huber, and Lenz (2012).
The MTurk Survey
Because Mechanical Turk samples are convenience samples, a natural question to ask about it concerns the extent to which it represents the American people. While MTurk samples are not representative of the U.S. population, recent research suggests that they are far more representative than typical convenience samples (Clifford, Jewell and Waggoner, 2015; Berinsky, Huber and Lenz, 2012; Huff and Tingley, 2015). Perhaps more importantly, researchers have replicated key findings in law and psychology using MTurk samples (Firth, Hoffman and Wilkinson-Ryan, 2018; Christenson and Glick, 2015). Still, we report in this appendix some information about the demographics of our sample compared to other prominent samples.
To this end, Table B1 compares the characteristics of our sample to those used by Christenson and Glick (2015), perhaps the most well-known investigation of public support toward U.S. courts to rely on MTurk data, the Berinsky, Huber, and Lenz MTurk sample, the 2008-2009 American National Election Panel Study (a web-based panel survey), and the 2008 American National Election Study, a well-known face-to-face survey.
Overall, our sample is fairly representative. Its average age is markedly older than the other Mechanical Turk samples, it has a higher amount of Latino representation than any of the internet samples, and it has the same amount of African American representation as the ANES. One common critique of Mechanical Turk convenience samples is their relatively liberalness.Whileoursampleisslightlyleft-leaning,itisnomoreleft-leaning than is typical. With these demographics, we echo Berinsky, Huber, and Lenz’s conclusion: “the MTurk sample does not perfectly match the demographicandattitudinalcharacteristicsoftheU.S.populationbutdoes notpresentawildlydistortedviewoftheU.S.populationeither.Statistically significant differences exist between the MTurk sample and the benchmark surveys, but these differences are substantively small. MTurk samples will often be more diverse than convenience samples and will always be more diverse than student samples.” Given these important caveats, we are comfortable employing an MTurk sample for our purposes.
Figure 1
Figure 2
Table A1
Diffuse Support and Institutional Trust in the Supreme Court, Country-year Averages
Table B1
Comparison of Sample Demographics
