Political Science Seminar: Institutional Legitimacy and Judicial Modeling
The Concept and Properties of Institutional Legitimacy
Defining Legitimacy: Legitimacy is described as a complex concept that is difficult to separate from its constituent parts, such as justice and trust. One of the central questions is whether legitimacy is a property of the individual (a subjective belief) or a property of the institution itself.
Psychological versus Institutional Perspectives:
Some psychological literature reviews, including annual reviews summarizing decades of research in law and psychology, define legitimacy as a "psychological property of an institution."
However, alternative definitions characterize it as a "subjective belief" held by individuals that an authority has the right to exercise power.
In this academic context, legitimacy is treated as subjective. Because it is subjective across different individuals, it becomes a variable that social scientists can predict.
The Impact of Perception: If legitimacy were an inherent property of the institution that just "is," public opinion wouldn't matter. Because it is subjective, judicial decisions and interactions—such as police stops or perceptions of racial bias—directly affect perceptions of legitimacy.
Connection to Popular Sovereignty: The concept relates to John Locke and the principle of popular sovereignty, which posits that government power is derived solely from the people. If everyone views an institution as legitimate, the government remains stable; if no one does, the government faces a crisis.
Consequences of Judicial Decisions: Judicial actions, such as incarceration, represent a significant restriction on personal liberty. For example, becoming a felon has long-term economic and social consequences, making it difficult to secure employment or achieve upward mobility. Decisions also impact broader areas like health, education, and political participation.
Trends in American Institutional Trust (Gallup Data)
Data Overview: Longitudinal data from Gallup (through the year ) tracks the percentage of Americans who report a "great deal" or "fair amount" of trust in the three branches of government.
Executive Branch: Represented by a red line. Trust dropped significantly around the year , coinciding with the era of contested elections in the United States.
Legislative Branch: Represented by a gray line. Generally follows a downward trend similar to the other branches.
Judicial Branch: Represented by a blue line. Historically, the judicial branch has maintained a higher "base rate" of trust than the other two branches at almost every point on the graph.
The Concept of Heterogeneity: This term refers to differing effects or trends across different groups or institutions. While most institutions show a general downward trend in trust, the specific timing and severity of the drops vary.
The 2022 Trust Crisis: A sharp drop in trust in the judicial branch occurred recently, specifically around . This is primarily attributed to the Dobbs v. Jackson decision, which overturned the legal right to an abortion.
Qualitative Difference: Scholars argue the Dobbs decision was qualitatively different from previous unpopular decisions because it was the first time the public broadly realized the court was not following precedent.
The Precedent Gap: The public often relies on a "legal model" that assumes courts follow established precedent (e.g., Roe v. Wade). When that precedent is overturned, the perceived mapping of the legal model onto reality collapses, leading to a loss of institutional credibility.
Polarization of Trust: Trust levels vary significantly by political identity:
Democrats: Experienced a stark, dramatic decrease in trust following the Dobbs decision.
Independents: Experienced a similar, though perhaps slightly less extreme, decrease.
Republicans: Experienced less of a decrease, as the outcome aligned with their policy preferences. This contradicts theories of "procedural justice," which suggest people should accept outcomes they dislike if they perceive the process as fair.
The Philosophy and Utility of Modeling in Social Science
Defining a Model: A model is a representation of reality designed to show how something works. Like a map, a model is not strictly "true" or "false"; it is either "useful" or "not useful."
Bias in Modeling: Models can reflect the explicit or implicit biases of their creators. For instance, global maps historically used Eurocentric scales to make Europe and the Americas appear larger than they are. Models in social science are often refined over years of critique and response.
Typology of Models:
Foundational Models: These establish what is possible in principle and provide a basis for future work. An example is the Spatial Model of Electoral Competition (the Median Voter Theorem).
The Ice Cream Stand Metaphor: Imagine a beach represented as a linear line with people spread evenly across it. If person sets up a stand, person will set up as close as possible to the center to maximize their "customer share." Eventually, both competitors converge at the middle point (). In politics, this predicts that candidates in a two-party system will move toward the median voter to win.
Structural Models: These organize scattered "stylized facts" into a single framework to make sense of observed reality (e.g., building a model to explain a shift toward the far right based on polling data).
Generative Models: These produce new conjectures or insights that were not previously obvious. This is common in game theory and the Chicago School of Economics, which uses axioms—even if known to be false—to derive testable predictions about supply and demand.
Expletive Models: These work out a causal mechanism for an observed pattern.
Example: A study on whether police are racially biased proposed that if officers have a latent psychological bias against Black people, one might observe more Black people being shot, but a lower percentage of those victims dying conditional on being shot, because the "threshold" for shooting was lower.
Predictive Models: This follows the standard scientific method taught in primary education.
The Predictive Modeling Process
Step 1: The Hunch: Start with a hunch about the world based on informal observation (e.g., "I got a ticket and felt annoyed; I wonder if police contact motivates political participation").
Step 2: State the Prediction: Formulate a hypothesis (e.g., "When people feel unjustly stopped by police, it motivates them to file complaints or participate in politics").
Step 3: Test on New Data: Test the hypothesis using a dataset that was not used to form the original hunch to avoid bias.
Step 4: Evaluation: If the prediction fails, the theory is wrong. In science, we do not "confirm" or "prove" a theory; we merely "fail to reject" it.
Logical Structure: This follows the contrapositive logic: If , then .
The Legal Model of Judicial Behavior
Core Tenet: Judicial behavior is shaped by law, facts, precedent, the text of statutes, and occasionally the intent of the framers.
Normative vs. Empirical: The Legal Model is a strong normative model (how things ought to be) but often functions poorly as an empirical model (how things actually are).
Predictions of the Legal Model: It implies that if facts are the primary stimuli, judges should converge in their behavior. If two judges interpret the same law and facts, the Legal Model predicts they should reach the same conclusion.
Constitutional Interpretation Varieties: To explain why judges differ while still claiming to follow the legal model, scholars identify different interpretive strategies:
Textualism: Interpreting provisions according to the ordinary meaning of language at the time it was written.
Originalism: Interpreting provisions based on the specific intent of the framers. Critics note this philosophy largely emerged in the as a grassroots backlash to the integration resulting from Brown v. Board of Education. It is difficult to apply because the framers (e.g., Jefferson and Hamilton) frequently disagreed with one another.
Doctrinalism: Interpreting provisions based on consistently applied rules or "judicial doctrine" within specific historical regimes.
Developmentalism (Living Document): Interpreting provisions dynamically as culture and society change (the Jeffersonian view that each generation should adapt the law).
Structuralism: Interpreting provisions based on the design of the Constitution as a whole (e.g., the Second Amendment might be interpreted as a right to bear arms for militia purposes, not necessarily for owning a tank).
Purposive Interpretation: Interpreting provisions based on their underlying purpose.
The Attitudinal Model of Judicial Behavior
Core Tenet: Judicial behavior is primarily shaped by the ideology, attitudes, and personal values of the judges.
Predictions: The party of the president who appointed the judge should be a strong predictor of that judge's voting records.
Sincere Voting: The model posits that judges engage in "sincere voting" (voting exactly how they want) rather than being constrained by law.
Institutional Enablers of the Attitudinal Model:
Judges have life terms and are not beholden to an electorate.
There is no effective mechanism for punishment or impeachment for policy preferences.
They are the highest authority, meaning their decisions are extremely difficult to overturn.
Public inattention allows judges to act on preferences without significant backlash unless the issue becomes highly salient (like abortion).
The Strategic Account of Judicial Decision-Making
Core Tenet: Judges are strategic actors who care about ideology but are constrained by the powers of other government branches (Congress and the President).
The Game Theoretic Framework:
Players: The Court, Congress, and the President.
Policy Space: Often modeled as a one-dimensional number line ( to ).
Sequence of Play:
The Court makes a decision (moves the status quo).
Congress decides whether to pass a statute to override the Court.
The President decides whether to veto the Congress's override.
Rational Anticipation: The Court must look ahead. Even if a conservative Court wants a very conservative policy, they might choose a moderate position to prevent a liberal Congress and moderate President from overriding them into a position that is even worse for the Court's ideology.
Questions & Discussion
Student Question on Map Reality: Can a map not be a representation of reality?
Response: The goal of science is to create a useful representation. While players in science have biases (like Eurocentrism in mapping), a model is generally an outcome of a process of critique and revision. It is still a map regardless of its quality.
Student Question on the Founding Fathers: Didn't they intend for the Constitution to be interpreted as times change?
Response: This is the "Living Document" or developmentalist view. Characters like Thomas Jefferson explicitly worried about binding future generations to the morals of the past, though his personal behavior was often at odds with his written values.
Dialogue on Pretextual Stops: The discussion touched on the ban on pretextual stops in Los Angeles (stopping someone for a minor violation like a broken taillight to investigate another crime). The instructor noted the legal absurdity of banning an officer's "intent" because intent is unobservable, though it reflects political negotiations between reformers and police unions.
Student Observation on Voter Ignorance: A student suggested that the Electoral College was created because founders didn't trust the population to be informed.
Response: This is true empirically; historical data shows only about of the population holds internally consistent political ideologies. Most people delegate political thinking because they are busy with life and work.