LEGITIMACY AND THE COURTS

The legitimacy of judicial institutions is critical given the limited resources that courts have when it comes to enforcing their rulings. Courts are typically regarded as the weakest branch of government, wielding control of neither the sword nor the purse; they are dependent on other branches and public support to give force to many of their decisions. This support is not a given and does vary over time and circumstances (see Whittington Reference Whittington2007). Legitimacy, in this context, has been described as a “reservoir of good will” that can insulate the institution from criticism when making unpopular decisions (Easton Reference Easton1965). As we use it here, legitimacy is distinct from immediate support for a particular outcome in a case, and it is more accurately characterized as “diffuse support” over the long term (Easton Reference Easton1975). That is, “people who believe specific decisions are wrong, even wrongheaded, and individual judges unworthy of their office” will still accept court decisions when the court as an institution is perceived as “generally impartial, just, and competent” (Murphy and Tanenhaus Reference Murphy and Tanenhaus1968, 359), “appropriate, proper, and just” (Tyler Reference Tyler2006, 376), or possessing “the right (moral and legal) to make decisions” (Gibson and Caldeira Reference Gibson and Caldeira2009, 38).

The critical role of legitimacy in the ability of courts to function effectively has spawned a substantial literature exploring its sources, particularly focused on the U.S. Supreme Court. Some theories, such as positivity theory, focus on ways in which the public's assessment of legitimacy increases with familiarity with the institution of the courts (Caldeira and Gibson Reference Caldeira and Gibson1992; Gibson and Caldeira Reference Gibson and Caldeira2009; Gibson, Caldeira, and Baird Reference Gibson, Caldeira and Baird1998; Gibson and Nelson Reference Gibson and Nelson2017). That is, the more people learn about the role that courts are supposed to play in the political system, the more favorably they view them, even if the outcomes from those courts are not individually favorable.Footnote ¹

Scholars testing positivity theory measure legitimacy using a battery of metrics primarily focused on resistance to changes in the structure of the institution (see, e.g., Gibson and Nelson Reference Gibson and Nelson2017). Other theories address the ways in which citizens use perceptions of procedural fairness to alter evaluations of legitimacy (Tyler Reference Tyler1990, Reference Tyler2003, Reference Tyler2006).Footnote ² In this understanding, when people believe that the process is fair, even if the outcome is not substantively what they want, they are more likely to regard those institutions as legitimate. Factors such as following ethical principles of conduct, motivations to be fair, and the quality of decisions made have an impact on perceptions of procedural fairness (Tyler Reference Tyler1990). This is typically measured by evaluating respondents’ perceived obligation to obey or affective orientation toward legal institutions (Tyler and Huo Reference Tyler and Huo2002, 101–5).

A third cluster of research has centered on how descriptive representation (Mansbridge Reference Mansbridge1999; Pitkin Reference Pitkin1967) can influence public perceptions of legitimacy, though the bulk of this research has focused on legislatures and executives. Scherer and Curry (Reference Scherer and Curry2010) find that descriptive representation does matter in courts, at least with regard to race. Using an experiment focused on U.S. federal courts, they found that African Americans’ evaluations of the legitimacy of courts increased when there was greater descriptive representation. Looking beyond American courts, Huebert and Liu (Reference Huebert and Liu2017) found that ethnic representation in courts changed the evaluations of legitimacy by indigenous peoples in Latin America. Recognition of minority languages in courts can impact public confidence as well (Liu and Baird Reference Liu and Baird2012). In short, existing research on descriptive representation has tested judicial legitimacy using several different approaches, including the full battery of metrics associated with positivity theory, trust in the courts, and confidence in the justice system as captured in the World Values Survey.

All three of these approaches to understanding legitimacy in the courts share an understanding of the centrality of democratic norms (Easton Reference Easton1965; Gibson, Caldeira, and Baird Reference Gibson, Caldeira and Baird1998; Hoekstra Reference Hoekstra2000). The legitimacy of the judiciary is inextricably linked to these norms, whether that manifests as a democracy-supporting role, an institution embodying shared norms of fairness and justice, or an institution that reflects the composition of the underlying electorate. How might the composition of high courts impact these perceptions of legitimacy?

WOMEN'S PRESENCE AND LEGITIMACY

There is an emerging consensus that women's political presence enhances the legitimacy of the institution that they are associated with, but the common path of the literature is to focus on the executive and legislative branches of government. Schwindt-Bayer (Reference Schwindt-Bayer2010) and Schwindt-Bayer and Alles (Reference Schwindt-Bayer, Alles and Schwindt-Bayer2018), for example, find evidence that the presence of women in the legislature in Latin America correlates with citizen feelings of trust in the legislature and greater satisfaction with the democracy as a whole. And, if we expand the definition of legitimacy to include perceptions of fairness and a lack of corruption, several studies demonstrate that the presence of women leads voters to assume lower levels of corruption in legislatures (Barnes and Beaulieu Reference Barnes and Beaulieu2014; Esarey and Schwindt-Bayer Reference Esarey and Schwindt-Bayer2018; Valdini Reference Valdini2019), police agencies (Barnes, Beaulieu, and Saxton Reference Barnes, Beaulieu and Saxton2018), and postconflict societies (Shair-Rosenfield and Wood Reference Shair-Rosenfield and Wood2017).

The research that does engage the relationship between women's presence on the court and legitimacy directly is limited but growing.Footnote ³ Grossman (Reference Grossman2012) lays out a normative argument against underrepresentation of women on international courts, linking it explicitly with the descriptive representation literature. She argues that overrepresentation of either men or women on courts is damaging to legitimacy because people believe that men and women “think differently,” leading to different results (Grossman Reference Grossman2012, 661). Using case studies drawn from the United States and Europe, Kenney (Reference Kenney2013) likewise argues that gender plays a critical role in the courts for both legitimacy and decision-making reasons, particularly because of the benefits of diverse perspectives on the courts, but does not offer a test of this association. Kirkpatrick, Kittilson, and Hoekstra (Reference Kirkpatrick, Kittilson and Hoekstra2020) put together a symposium of articles on diversity in the judiciary, including arguments that descriptive representation influences multiple conceptions of justice (Dovi and Luna Reference Dovi and Luna2020) and that intersectionality can offer a richer understanding of diversity on the bench (Kang et al. Reference Kang, Kittilson, Hoekstra and Escobar-Lemmon2020). Arrington et al. (Reference Arrington, Bass, Glynn, Staton, Delgado and Lindberg2021), Kang et al. (Reference Kang, Escobar-Lemmon, Hoekstra and Kittilson2021), Araya, Hughes, and Pérez-Liñán (Reference Araya, Hughes and Pérez-Liñán2021), and Valdini and Shortell (Reference Valdini and Shortell2016) all argue for the value of gender diversity on courts, but they focus primarily on the methods by which women end up on the bench.

Nelson (Reference Nelson2015, 238) directly addresses citizen perceptions of women on the bench in the United States and finds evidence that women judges are subject to “double-bind” expectations, similar to those found in other areas of public life, such that “heightened assessments of empathy are balanced with lower assessments of judicial competence.” Particularly relevant to our study, Nelson finds that whether gender matters in these evaluations depends on the context: when making decisions that emphasize their identities as women, the double bind is in effect, while it is not as evident in decisions that do not emphasize gender identity. Thus, while there is some evidence to suggest that the legitimacy of the court is impacted by women's presence, direct tests of this potential effect have yet to be performed.

There is reason to believe that women's presence on the high court may have no impact on peoples’ perceptions of its legitimacy. The judicial branch, after all, is not meant to rest on a foundation of representation; it is the branch that stands outside the electoral pressures that elected officials face. By design, the institutional purpose it serves is different from the elected branches, though there are contested answers about what that purpose is. Some argue that courts are meant to provide horizontal accountability, keeping the other branches of government in check in order to maintain and support the principles of limited government (O'Donnell Reference O'Donnell1998). Building on this, courts can be seen as primarily protecting the values of the constitution and upholding the “rules of the game.” Other scholars describe courts as centrally focused on resolving disputes as a third party, with a key emphasis on remaining neutral in order to be effective (Shapiro Reference Shapiro2013). Finally, courts could simply be seen as the final step in the bureaucratic process of adjudication designed by the political system. Because these roles and responsibilities are so different from the elected branches, women's presence may not evoke the same citizen responses as legislatures and executives. Thus, citizens may not notice the gender balance of the court, and if they do notice, they might not care.

BIAS AND LEGITIMACY

In addition to the uncertainty surrounding whether the effect of women's presence in the legislative and executive branches will hold in the high court, existing literature on the cultivation of legitimacy has yet to examine how citizen bias against women might change this effect. There is substantial literature that demonstrates that voters make assumptions based on candidate gender, and that many of these assumptions will negatively impact women's electoral success (Alexander and Andersen Reference Alexander and Andersen1993; Eagly and Karau Reference Eagly and Karau2002; Fulton Reference Fulton2012; Fulton and Dhima Reference Fulton and Dhima2020; Huddy and Terkildsen Reference Huddy and Terkildsen1993; O'Brien and Rickne Reference O'Brien and Rickne2016; Schneider and Bos Reference Schneider and Bos2014; Valdini Reference Valdini2013). The bias held by voters against women does not necessarily manifest as openly hostile; rather, both hostile and benevolent sexism have the potential to undermine citizens’ views about the effectiveness and suitability of women in power (Glick and Fiske Reference Glick and Fiske1996). Thus, there is reason to believe that biased individuals may not respond to women justices with increased feelings of trust in the court and government (i.e., legitimacy).

Much of the literature on bias focuses on gender stereotypes and argues that bias against women is a consequence of people holding traditional views about women's ideal roles, behaviors, and abilities. Specifically, they offer evidence that some people both assume women to have more “communal” qualities than men and feel more comfortable with women who exhibit these expected traits (Alexander and Andersen Reference Alexander and Andersen1993; Eagly and Karau Reference Eagly and Karau2002; Huddy and Terkildsen Reference Huddy and Terkildsen1993; Sanbonmatsu Reference Sanbonmatsu2002; Spence and Buckner Reference Spence and Buckner2000). Communal traits are those associated with traditional notions of femininity, such as being compassionate, careful, cooperative, gentle, honest, and loyal. Building from that, there is a growing body of literature that finds that women are associated with democracy, so much so that their presence in government is successfully used as a substitute for democratic procedures (Baldez Reference Baldez2004; Bush Reference Bush2011; Valdini Reference Valdini2019). Perhaps because of the stereotypes that women are naturally more honest, cooperative, and thoughtful—that is, maternal—some citizens believe that women are more “naturally” democratic than men.

In addition, there is substantial literature on the differential impacts of hostile versus benevolent bias on voter behavior. While both forms of bias (also known as sexism) serve to justify women's subordinate status (Glick and Fiske Reference Glick and Fiske1996), they do so in very different ways: hostile bias manifests as a belief that women are seeking to control (and overpower) men through their sexuality or feminism, while benevolent bias manifests as a more protective and even affectionate mechanism of subjugation in which women are viewed as inherently pure and good as well as weak and defenseless (Glick et al. Reference Glick2000). Much of the recent work on the impact of these forms of bias on voter behavior offers substantial evidence that sexism has a direct effect on voters’ support for women candidates (Barnes, Beaulieu, and Saxton Reference Barnes, Beaulieu and Saxton2020; Cassese and Barnes Reference Cassese and Barnes2019; Cassese and Holman Reference Cassese and Holman2019; Ditonto Reference Ditonto2019; Fulton and Dhima Reference Fulton and Dhima2020). There is, in short, little doubt that the level and type of sexism held by voters is a key element to understanding their evaluations of women candidates and their decisions in the voting booth.

However, while scholars have a clear picture of the general impact of gender stereotypes on the evaluations of women politicians, as well as a good understanding of how voter bias impacts the success of women candidates, there is little existing work that examines the impact of different levels and different types of bias on citizens’ perception of institutions with women leaders. In other words, we know that citizens make different assumptions about men and women in power, but we know very little about how their gender bias affects their beliefs about the value and functionality (i.e., legitimacy) of a governing institution with a high presence of women leaders.

While all bias is potentially damaging to women's equality, we argue that only hostile bias negatively impacts the cultivation of legitimacy through women's presence on the court. That is, when a person feels negativity toward women, this hostile bias disrupts the potential legitimacy that the court or the state could gain from women's presence on the bench. For example, if a person believes that women are evil or manipulative—that is, they demonstrate hostile bias against women—then women on the high court will not be seen as valuable additions to the institution, and thus the legitimacy of the institution may suffer. That being said, the literature on bias and stereotypes demonstrates that these factors often manifest in context-dependent and fluid ways, and thus we suspect that the effect of hostile bias on legitimacy may not be consistent.

We would not expect benevolent sexism, though, to have this same negative effect. Since this type of sexism triggers the believer to view women as inherently good and pure, there is no reason to predict a decrease in perceptions of high court legitimacy among those holding these views. And there is no reason to predict an increase in legitimacy either; we argue that because of the democratic context, the positive stereotypes that benevolent sexists hold are not seen as particularly important and thus will not impact their perception of court legitimacy. In short, the impact of stereotypes on voter behavior is fluid and context-dependent (Falk and Kenski Reference Falk and Kenski2006; Holman, Merolla, and Zechmeister Reference Holman, Merolla and Zechmeister2016; Lawless Reference Lawless2004; Valdini Reference Valdini2019), so when a high court is in a stable democracy, women's communal traits and “natural” proclivity toward democracy will not be seen as necessary and thus will not change the appraisal of the institution.

TESTING: METHODS

To examine the effect of bias and justice gender balance on the legitimacy of the court, we administered a survey of U.S. residents in April 2018. We selected the United States as a case study for testing this theory for several reasons. First, the United States is regarded as one of the most stable democracies in the world, offering a consistent form of government over a long period of time. Citizens can be expected to have some familiarity with the norms and operations of this style of government. Second, the United States has a longer tradition than any other country of allowing the apex court to engage in judicial review of statutes and executive branch actions. This has made the U.S. Supreme Court in particular more visible than the judiciary in many countries. Finally, the United States has been the subject of the most extensive research regarding gender and judging, so it provides a strong theoretical foundation from which to develop testing. While our interests extend beyond the context of the United States alone, it offers an important starting point for evaluating whether public perceptions of legitimacy are influenced by the gender composition of the courts.

Our survey was conducted via Amazon.com's Mechanical Turk (MTurk) service in April 2018. All respondents were U.S. residents over age 18, and we required a “HIT approval rate” from previous requesters’ jobs of over 95% for participation. We provided a payment of $1 to all respondents who successfully completed the survey and did not fail the robot test (see Appendix I in the supplementary material online for the full survey). In all, 940 respondents successfully completed the survey. While the respondents did skew young, left-wing, and well-educated, we were able to get sufficient demographic variation (see Appendix II for a table showing the demographic breakdown of the sample).Footnote ⁴

After accepting participation in the survey, respondents were randomly assigned to one of three groups. Each group was then given a one-paragraph description of the current high court in the anonymous country.Footnote ⁵ In each group, we offered the same description of a high court in an anonymous stable democracy. We chose to specify the court as being in another country to avoid tapping too directly into attitudes of specific support about U.S. courts that might reflect responses to recent court decisions rather than underlying attitudes. However, we did not want to vary the political system too far beyond what respondents might be familiar with, so we made sure to specify that this anonymous country was also a stable democracy like the United States. The descriptions were the same across the three groups, with one key difference: we varied the gender balance of judges on the anonymous high court. We offered three different justice gender scenarios: in the first, there were six men and one woman on the court. In the second, there were four men and three women on the court. And in the third, there were six women and one man on the court. Thus, our independent variable is categorical and has three possible values.Footnote ⁶ We did not strongly emphasize the gender of the judges, but rather mixed that material in with supplementary information about the judicial selection mechanism and term length.Footnote ⁷

After reading the assigned paragraph, respondents were given six questions designed to elicit their opinion on the likelihood of that court achieving goals usually associated with the idealized high court. These were, in short, our operationalization of legitimacy, and thus designed to pick up very different facets of the idealized high court. While the existing literature on the legitimacy of judicial institutions frequently uses the well-respected measurement of Gibson, Caleira, and Spence (Reference Gibson, Caldeira and Spence2003), our questions were designed to elicit responses to more specific functions and attributes of the high court. By focusing on specific aspects of the court (e.g., will the court treat parties who try a case fairly, will the court issue a fair ruling if a government official is accused of corruption, etc.), we were able to test and isolate whether women's presence on the court affected a specific aspect of the court's legitimacy. This is particularly important because our theory rests on the use of stereotypes and bias, which have been demonstrated to manifest in fluid, uneven ways. This is also why we avoided combining the measures of legitimacy into a single cumulative scale; our goal was to parse exactly which aspect of the respondents evaluation changed when faced with women on the court, and our concern was that a broad or cumulative measure focused on general satisfaction or trust may not pick up the nuances of peoples’ reactions to women on the court. That being said, as a nod to the work of Gibson, Caldeira, and Spence (Reference Gibson, Caldeira and Spence2003), we did include a general question on whether the court could be trusted.Footnote ⁸

Following the completion of the six questions central to our analysis, we transitioned to collecting control variables. These included the standard demographic variables—age, gender, ideology, education, party identification—as well as two sets of questions designed to capture the respondents’ other personal beliefs about high courts. We assumed that respondents who look favorably on the U.S. Supreme Court would have more positive feelings about courts in general, and thus we included a control for that as well.

In addition, the final section of the MTurk survey utilized five questions from the benevolent/hostile sexism battery created by Glick and Fiske (Reference Glick and Fiske1996). For example, we included a question that asked how much the respondent agreed or disagreed with the statement that “women tend to exaggerate problems at work”—which is classified as hostile sexism—as well as questions designed to pick up benevolent sexism (e.g., agree or disagree with the statement that “women should be cherished and protected by men”).Footnote ⁹ Respondents answered each question on a 6-point scale ranging from “strongly disagree” to “strongly agree.”

Table 1 offers the results of six models, each with a different operationalization of legitimacy. All of our dependent variables—that is, the respondents’ opinions on various measures of the legitimacy of the described court—are ordered, categorical variables with low values that denote negative feelings about legitimacy and high values that denote more positive feelings. Our primary independent variable, women justices, is a categorical variable with three values (fully explained in our discussion of treatments earlier); a higher value denotes the presence of more women on the high court. In addition to the standard control variables, we include one variable that captures the respondent's general feelings about the U.S. Supreme Court, referred to as U.S. court fairness in the models. Finally, to examine whether individual bias changes the relationship between women's presence on the high court and perceptions of legitimacy of the institution, our models include responses to the question of whether women exaggerate problems at work as a measure of an individual's gender bias, as well as an interaction of gender bias with the number of women on the high court.Footnote ¹⁰ Due to our categorical dependent variable, we use ordered probits to estimate the models. While the coefficients cannot be directly interpreted, the significance and direction of the coefficients offer insight into the relationships among these variables.

Table 1. Ordered probit results: Perception of high court legitimacy with hostile bias

Ordered probit with standard errors in parentheses.

*** p < .01; ** p < .05; * p < .10.

Table 1 offers the results of our ordered probits. We find a significant positive relationship between the presence of women on the court and nearly all perceptions of legitimacy.Footnote ¹¹ These results clearly suggest that women's presence positively impacts the perception of legitimacy of the high court.

The effect of bias, on the other hand, is more complicated: our variables capturing benevolent sexism (and their interactions with the presence of women on the court) did not attain statistical significance in any of our models and are not included in Table 1, while the questions capturing hostile bias, when interacted with women's presence, did reach conventional levels of significance in two models. This result offers support for our theory that different types of bias will trigger citizens to respond to women justices in different ways. Further, it suggests that even within a single type of bias, there may be differences in exactly how that bias affects the response to the presence of women on the court. That is, there is a significant effect of hostile bias only in response to two of the six measurements of court legitimacy: bias changes the respondents’ beliefs about the impact of women's presence on the court only when we ask about the court's ability to conduct “fair and unbiased” judicial review and the likelihood that the court will “treat parties who try a case before the court fairly,” but not when focused on the overall health of the democracy, the general trust in the court, the fairness of rulings on corrupt officials, and the ability of the court to ensure that justice is served. This variation suggests that there may not be a simple blanket response of citizens with hostile bias to women justices on the court, but rather that the hostility causes them to doubt some, but not all, aspects of court legitimacy.

To better understand the impact of the presence of women on the court and its relationship with hostile bias, we offer the predicted probabilities generated from one of these models in Figure 1.

Figure 1. Respondent evaluation of likelihood of effective judicial review on high court with majority women, by level of hostile bias.

Figure 1 offers a visual representation of predicted probabilities generated from Model 4 on judicial review (please note that the full table of all predicted probabilities from Model 4 is available in Appendix III). The y-axis represents the probability that a respondent will give a certain answer to the following question: “One of the most important jobs of the high court is to determine whether or not a law is unconstitutional. Do you believe that this court will review laws in a fair and unbiased way?” The x-axis represents the level of hostile bias expressed by the respondent, where the low end of the scale indicates low bias and the high end indicates high bias against women. Each line represents a different answer to the y-axis question, but only under conditions of a majority-women high court. For example, the line marked with squares presents the probabilities that a respondent, when faced with a court of six women and one man, will say that it is “likely” that the court will review laws in a fair and unbiased way.

As expected by our theory, respondents change their views on the court depending on their level of hostile bias: the probability that someone will answer “likely” and “very likely,” for example, decreases as bias increases. On the other hand, the probability that someone answers “unlikely” or “very unlikely” that the court will review laws in a fair and unbiased way increases with hostile bias against women. These results suggest that the effect of women's presence on the legitimacy of the high court is not the same for all citizens, and that sexism must be taken into consideration when predicting the effect of women's presence on institutional legitimacy.