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Those who want respect, give respect

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This is an interesting study, from which at least two of its authors draw precisely the wrong conclusion:

Sens. Dick Durbin (D., Ill.) and Chuck Grassley (R., Iowa) have reintroduced a bipartisan bill to require the Supreme Court to televise oral arguments. Mr. Grassley says it “would be a victory for transparency and would help the American people grow in confidence and understanding of the judiciary.” A forthcoming study suggests otherwise.

With political scientists Timothy Johnson and Justin Wedeking we conducted an experiment that exposed respondents to real TV clips from two state supreme courts. Some listened to an oral argument; others watched it. Some saw a justice aggressively question an attorney; others observed a polite exchange. Some saw a dynamic camera angle that showed the judge and lawyer in a Zoom-like format—up close, with frequent camera changes, and with the ability to see each speaker’s face while he spoke. Others viewed a static wide-angle shot of the full bench from a distance.

After presenting these clips, we measured respondents’ views of judicial legitimacy. We asked whether courts ought to be made less independent, whether judges who consistently decide cases at odds with public opinion should be removed, and similar questions. The results show that cameras can as easily harm the courts’ legitimacy as help it.

Respondents who observed the Zoom-like approach were most likely to change their views about judicial legitimacy. Those who watched a contentious exchange between the judge and attorney found the court to be less legitimate than those who listened to the exchange. Watching a justice combatively interrogate a lawyer—as some U.S. Supreme Court justices do—caused immediate and significant harm to the court’s legitimacy. Those who watched a neutral exchange between judge and attorney found the court to be more legitimate than did those who merely listened to that exchange.

The fact that the public thinks less of judges when they act like jerks during televised arguments is an argument in favor of televising oral arguments. The public should be given the information necessary to evaluate powerful public officials.

The familiar underlying fallacy is the idea that courts are entitled to a fixed level of institutional legitimacy no matter how judges perform their duties. and the problem is that this idea is transparently wrong. The way the public is responding to a faction that has won the popular vote once since 1988 using judges chosen solely for the votes they will cast in politically salient cases to impose an extremely unpopular agenda on the country — thinking much less of the Court — is entirely appropriate.

And it’s the disjuncture between the votes in national elections and the Court that is going to make the public’s low opinion of the Court an ongoing thing, and is also going to lead to more sweaty, incoherent defenses of its Inherent Institutional Legitimacy. As horrible as the Supreme Court was in the late 19th and early 20th century, it’s not as if you can say that the electorate was voting for progressive Senates and presidents and getting reactionary courts. The Supreme Court’s domination by a minority faction is historically rare, and previous instances have generally led to constitutional crises.

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