CITIZENS, COURTS, AND CONFIRMATIONS

Vol. 19 No. 10 (October, 2009) pp.759-762

CITIZENS, COURTS, AND CONFIRMATIONS: POSITIVITY THEORY AND THE JUDGMENTS OF THE AMERICAN PEOPLE, by James L. Gibson and Gregory A. Caldeira. Princeton, New Jersey: Princeton University Press, 2009. 200pp. Hardcover. $65.00/£44.95. ISBN: 9780691139876. Paperback. $24.95/£16.95. ISBN: 9780691139883.

Reviewed by Richard L. Vining, Jr., Department of Political Science, University of Georgia. Email: rvining[at]uga.edu.

In CITIZENS, COURTS, AND CONFIRMATIONS, James L. Gibson and Gregory A. Caldeira provide a rich and compelling examination of the relationship between public knowledge, salient events, and popular opinion of the United States Supreme Court. They frame their study as an examination of changes in attitudes about the Supreme Court in response to the nomination of Judge (now Justice) Samuel A. Alito, Jr. It is, however, far more extensive than that suggests. The book is in many ways a primer on more than two decades of exemplary work by its authors bolstered with new and unpublished survey data. CITIZENS, COURTS, AND CONFIRMATIONS is a significant contribution to the literature on judicial politics. Its findings are interesting and unique, and it provides a number of insights likely to prompt further studies of courts and the citizenry.

The authors focus on changes in attitudes about the Supreme Court as a function of exposure to the confirmation fight over Samuel Alito. They elaborate a theory of “positivity bias,” with citizens forming and maintaining positive views of the Supreme Court once exposed to symbols of the judiciary (e.g., courtrooms, robes) and that bias coloring their opinions of courts and judges. Gibson and Caldeira argue that this bias is fostered when judicial institutions and judges (or potential judges) are framed in a judicious, or legal, manner rather than as ordinary political actors. That is, citizens are inclined to support courts and judges when they are perceived to be “different” than politicians. The authors explain that confirmation hearings are salient events that cultivate such an effect, reinforcing the “differentness” of courts as opposed to legislators and executive branch officials. They address these topics throughout the book, especially in its latter half.

To test positivity theory, Gibson and Caldeira present a wealth of descriptive data and model results. Their data are primarily derived from three wave panel survey results from 2001, 2005, and early 2006. The outcomes of the latter two surveys are previously unpublished and, as the authors explain, likely provide the first opportunity to measure shifts in public opinion immediately surrounding a salient event involving the Supreme Court. These surveys also allowed the authors to revisit issues of public knowledge and institutional legitimacy with which they have long been associated.

Chapters 2 and 3 include extensive discussions of public knowledge of [*760] courts and perceptions of their legitimacy, respectively. Chapter 2 in particular provides novel findings, presenting survey results that contradict the long-held belief that citizens are mostly ignorant about the Supreme Court. Gibson and Caldeira demonstrate that this conventional wisdom is rooted in flawed survey techniques and questions removed from the knowledge needed to evaluate judicial institutions. The authors are highly critical of surveys that rely on a “recall approach” (p.21) to assess whether citizens are informed, arguing that recognition when provided with options (i.e., a “multiple choice” strategy) is a more suitable test of citizen knowledge (p.23). These important findings are sure to raise eyebrows, and should encourage scholars to reevaluate how they measure and discuss approval and awareness of courts.

Chapter 3 revisits earlier work by Gibson and Caldeira, together and separately, that examines the legitimacy of courts in the United States and elsewhere. Both broad support for the Supreme Court as an institution (“diffuse support”) and support of its output/activities (“specific support”) are evaluated. The findings support the notion that “to know courts is to love them, or at least to respect them” (p.122). Caldeira and Gibson have tread this ground before, but in CITIZENS, COURTS, AND CONFIRMATIONS they further explore the determinants of citizens’ perceptions of courts’ legitimacy. They find that neither partisan polarization nor ideology have a significant influence on citizens’ acceptance of the Supreme Court. In an era when the Court is alternately labeled either a hotbed of liberal activism or a defender of Goldwater/Reagan conservatism, it is interesting that neither partisan affiliation nor ideological predispositions tend to determine diffuse support. Caldeira and Gibson’s findings suggest that both ends of the ideological spectrum value the Court and that neither side’s “batting average” is so low that it dismisses the institution altogether. These findings speak to the theory of positivity bias, with the court loved or at least respected across partisan and ideological divides. If the Court is broadly accepted, exposure to its trappings and symbols should increase that esteem. Whether that is so is given more direct attention in Chapters 4 and 5.

With the groundwork laid in the first three chapters, Chapter 4 explicitly discusses the Alito nomination. How did citizens form opinions about Alito? Was the process consistent with the theory of positivity bias? Using survey data, Gibson and Caldeira conclude that popular opinion about Alito was, in general, a result of broader ideological conflicts rather than specific policy areas. Large swaths of the public were uncertain how Alito would vote on key issues and did not see his confirmation as a major threat. In addition, Gibson and Caldeira find that loyalty to the Court was directly correlated with support for Alito. These results are consistent with positivity bias, with Alito given the benefit of the doubt and profiting from the reputation of the institution he would join. The authors interpret this in part as support for the idea that framing matters, with citizens’ existing attitudes “shaping evaluations of contemporary events” (p.94). Those inclined to support the Supreme Court as an institution were less likely to support or oppose Alito on policy grounds. This [*761] has important implications for the confirmation process and the nominees involved in it. If the focus is kept on the “judiciousness” of a nominee, presidents and other supporters may be able to suppress partisan gamesmanship. Of course, that is easier said than done. It may, however, speak to why nominees generally enjoy a “presumption of confirmation” (Shapiro 1990) in the absence of damning evidence.

In Chapter 5 the authors further test positivity theory by using survey data to assess the relationship between messages about Alito and public opinion of the Supreme Court. They examine the effect of exposure to television advertising about Alito and its impact on opinion of the Supreme Court. Gibson and Caldeira conclude that, contrary to the expectations of positivity theory, exposure to such advertisements decreased support for the Supreme Court. They attribute this to the tendency of such advertisements to make the Court appear a political rather than legal institution. As framing theory dictates, if courts are seen as analogous to presidents and legislators they may face similar fluctuations in popularity.

While this is an innovative approach, it does not control for other sources of information to which respondents were exposed. For example, based on their survey results the authors assume that their respondents are primarily cable news viewers. However, they are unable to control for the news programming or other stimuli observed by their respondents. It is not hard to imagine that cable news channels reinforce positive or negative messages about a nominee. Controlling for such factors is obviously difficult, especially if not included in the relevant wave of survey questions, but not doing so invites the question whether too much influence is attributed to television commercials per se. It is possible that the commercials reflected the broader debate about Alito and fairly represent messages received by the survey respondents. Unfortunately, that is unknown. The authors also assert that advertisements portrayed the Court as political despite civil confirmation hearings (p.119); however, one of the memorable events from the hearings (and the one most often replayed on television) was Alito’s wife in tears as she fled the committee room during discussion of his supposed racial biases. That politically notable moment or others may have influenced public opinion as much as any commercial(s). Although their model controls for attention to the Alito nomination and an assessment of its fairness (p.111), those measures might or might not sufficiently account for stimuli beyond television advertising. Regardless, the model results in Chapter 5 are interesting and provocative.

Based on the findings in Chapter 5, the authors make significant concessions about the accuracy of positivity bias in the formation of opinions about the Supreme Court. I am not sure whether such a retreat is entirely justified. Any decline in public support for the Court may have been temporary, and it may be that a subset of the Court’s detractors reversed their opinions once Alito joined the High Court and the sky did not fall. Any such determination, however, will have to wait until the next book (or article). Positivity theory merits further examination by these authors and others. [*762]

If there is a fault with the book, it may be that it relies quite heavily on the claim that the Alito nomination was responsible for the observed shifts in attitudes. Gibson and Caldeira say the attitude changes they measure were the “spillover” from “a single nominee” (p.125) but the Court continued to work throughout Alito’s confirmation process , and he was the third Supreme Court nominee within four months. Any combination of these events could affect public opinion and awareness of the Supreme Court. It is possible that the public was weary of another partisan confirmation battle after the relatively contentious Roberts nomination and the utter failure of Harriet Miers as a nominee. We cannot know how Alito would have been treated as a lone nominee during the Court’s summer recess, with the confirmation process playing out in relative isolation from other Supreme Court activities. More effort to account for the context of his nomination, and thereby discount other contemporaneous events, would have been appropriate.

Any scholar or citizen interested in the interrelations of courts and public opinion should read CITIZENS, COURTS, AND CONFIRMATIONS, and it will surely find its way on to the syllabi of numerous graduate courses on judicial politics. The findings in Chapter 2 about public knowledge of courts stand as a vital counterpoint to decades of conventional wisdom about a citizenry generally ignorant of the functions, members, and role of the Supreme Court. The critique of survey methodology is also worthy of attention from scholars in a variety of fields. The framing theory discussed by the authors (p.11, pp.65-70), with political frames of legal actors set against frames defined by “judiciousness,” is not the central focus of the book, but is ripe for further exploration. Positivity theory and the related findings will no doubt be the starting points for many future works on the public, courts, and salient judicial activities.

REFERENCES:

Shapiro, Martin. 1990. “Interest Groups and Supreme Court Appointments.” NORTHWESTERN LAW REVIEW 84: 935.

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