Scholars of mass attitudes toward the US Supreme Court have long argued that the institution’s legitimacy—or its authoritative ability to make binding decisions—is (partially) rooted in democratic norms and support for political values. The Court relies on public support for its decisions in order to expect elected officials to enforce them. Luckily for the Court, this public support, though it may ebb and flow over time, is not directly connected to immediate political fortunes. Instead, it is more obdurate—a function of abstract orientations toward the institution itself, the promises of a democratic society, and the Court’s role in upholding those values.
Or so the argument goes.
In reality, commitments to democratic norms and political values are fairly tenuous. A vast majority of Americans support abstract democratic values like free speech and equal legal protection. A much smaller proportion of Americans, however, support such values when asked about them specifically. For instance, many perceive invocation of the Fifth Amendment right against self-incrimination as an indication of guilt, which clearly undermines the democratic value upheld by the right. The same is true of abstract versus specific tolerance; a majority believes in allowing the advocacy of unpopular ideas but are decidedly less tolerant when their least preferred group is said to be doing the advocating. Robust work on democratic values and tolerance suggests that the classic understanding of Supreme Court legitimacy is at odds with the predominant theories of mass political attitudes and political psychology.
In light of that work, an institution tasked with making countermajoritarian decisions must certainly face scrutiny for doing so. In his recent book, The Rights Paradox, Michael A. Zilis asks whether the Court does experience public backlash when it rules in favor of disliked political groups. He puts forth the “group antipathy model,” in which “many citizens evaluate [the Supreme Court] based on the extent to which they perceive it as an ally of groups they dislike” (p. 7). More simply, evaluations of the Court are rooted in social identity and one’s attitudes toward political groups on whose political fortunes the Court occasionally rules.
Zilis’s theory is not necessarily novel—a growing body of work has indicated the social underpinnings of Supreme Court support—but the group antipathy model goes a long way toward simplifying theories of mass attitudes toward the judiciary. One important takeaway concerns the power of negativity: antipathy more strongly underlies support for the Court than positivity. Thus, previous attempts to discern the effects of policy loss/victory ought to have considered (the lack of) clear group cues. Additionally, The Rights Paradox considers a great number of social and political groups in a variety of contexts (e.g., immigrants, Christian fundamentalists, LGBTQ+, racial groups, etc.) that have heretofore not received attention in the same place, if at all. Zilis persuasively argues that group-based reactions toward the Court are not limited to a few of the most enduring social and political identities (e.g., partisan groups) but ubiquitously apply to many groups.
In chapters 1 and 2, Zilis builds the theory of group antipathy. Capitalizing on a long tradition of research highlighting the role of social groups in opinion formation, as well as more recent work on the increasingly homogeneous nature of political and social identity, Zilis argues that attitudes toward disliked groups shape views of the judiciary. In one sense, this is not revolutionary: scholars of political behavior have argued for decades that individuals form political opinions using the lens of group identity. Yet, it is the application to views of the Supreme Court that makes The Rights Paradox a story worth telling in full. In chapters 3–5, Zilis demonstrates the direct influence of group antipathy on Supreme Court legitimacy using both observational and experimental techniques across a host of groups and several contexts.
In chapter 6, Zilis uses a cleverly designed conjoint experiment to determine whether members of the mass public infer the ideological position of the Court from its rulings. He determines that a ruling perceived to benefit conservative (or liberal) groups leads individuals to believe the Court skews conservative (or liberal), even when the rulings described in the survey experiment do not indicate ideological bias (and, of course, even when the reality is that the Court occasionally rules in favor of groups across the ideological spectrum). That is, there is a compounding influence of social group cues on legitimacy: a direct effect and an indirect effect via ideological perception.
The findings in this portion of the book are useful for bridging the gap between extant accounts of the public’s ideological understanding of the Supreme Court. The conventional wisdom suggests that ideology plays little role in evaluations of the judiciary, but revisionist approaches find that large perceptual gaps between the Court’s ideology and one’s own yield less legitimacy. Zilis contributes to this ongoing debate by demonstrating that the indirect role of group antipathy may exacerbate the influence of ideological distance. Stated differently, previous work may have undersold the influence of displeasing decisions on Supreme Court legitimacy. When accounting for the compounding influence of group cues, the harm to legitimacy from a decision in favor of a disliked group may be much greater than initially believed.
Chapter 6, however, leaves some pressing questions unanswered. Consider rulings in favor of groups toward which many individuals are neither antipathetic nor favorable. Those rulings may still send a meaningful cue that helps individuals place the Court in ideological space and, subsequently, evaluate its institutional legitimacy. Thus, it is difficult to determine how we should consider the compounding influence of social group cues and attitudes outside the context of group antipathy or favoritism. Does the theory only apply to (dis)favored groups? Can groups become disfavored as a function of perceived Court favoritism?
In chapter 7, Zilis applies his theory of group antipathy to the behavior of Supreme Court justices. This represents perhaps the most novel and intriguing portion of the book. Rarely does a single piece of research use public attitudes regarding the Court as both a dependent and independent variable. Here, too, Zilis offers a great contribution to an ongoing debate: Does the Court respond to the ideological proclivities of the mass public? Answers to this query have been mixed. Through reconceptualizing the question not as left–right but as group responsiveness, we see that justices are more responsive in salient group cases (under certain conditions). Thus, group attitudes shape not only how the public views the Court, but also how the Court behaves when ruling on cases that implicate groups.
Despite the theoretical and empirical advancements made in The Rights Paradox, one major question remains unanswered: How long-lasting are the negative effects of a ruling that one disfavors on antipathy grounds? The foundational literature on legitimacy argues that abstract political values condition legitimacy in the long run. What is unclear is whether Zilis uncovers long-term effects of group antipathy in support for the institution or whether minority group policy victory ultimately fades in one’s memory and support reverts. To be fair, Zilis asks this very question (p. 134), and it is one that plagues all scholars of attitudes about the judiciary. Nevertheless, some of the political psychology studies cited during the building of the group antipathy theory may have been worth reconsidering nearer the end of the book.
Indeed, The Rights Paradox succeeds in bringing Supreme Court legitimacy into alignment with contemporary understandings of public opinion and political psychology, yet that link is less clearly elucidated after the data analyses are presented. Does the author predict that increasing social and political group homogeneity will exacerbate the effects of group antipathy on evaluations of the Court? Will such effects wane after a controversial ruling, as seems to have been the case in the past? Although Zilis does not answer these questions—at least not directly— he puts scholars in a prime position to carry forward the theoretical and empirical insights from The Rights Paradox and to consider these very queries in future research. This is a book worthy of inclusion on the bookshelf of any scholar researching mass attitudes toward judiciaries.
