Is the fierce battle to confirm Judge Brett Kavanaugh to the Supreme Court putting the institution’s legitimacy in peril? Some observers think so. The New Yorker, for example, tweeted that “The damage that the #KavanaughHearings did to the legitimacy of the Supreme Court and the Senate confirmation process is incalculable, whether Brett Kavanaugh is confirmed or not.” And here at The Washington Post, Jennifer Rubin argued that putting Kavanaugh on the court would hurt it over the long run.
Certainly, the hearings might affect the midterm elections or Americans’ short-term opinions of the court. But it’s unlikely that Kavanaugh’s confirmation battle — regardless of whether he’s confirmed — will harm the court’s reputation. And if it does, the Supreme Court may become a little more cautious — and Congress a little bolder — until equilibrium returns.
This is how political scientists study judicial legitimacy
When political scientists use the word legitimacy, they’re thinking of individuals’ loyalty to a political institution. People obey decisions from institutions or figures they view as legitimate because they feel that they should, not because they fear punishment if they don’t. For example, when teenagers consider their parents’ authority legitimate, they are likely to return home before curfew — even if their parents might be asleep when they get home.
Political scientists typically set a high bar when judging whether Americans view the Supreme Court as legitimate. Scholars ask survey respondents whether they would support changes to the federal judiciary that would fundamentally change the institution, such as removing justices who make disappointing decisions or abolishing the court altogether. Respondents who reject those proposals are considered as viewing the institution as legitimate. Under this standard, that includes most Americans, regardless of ideology or partisanship. Those who support such measures as, for instance, impeaching justices for unpopular rulings are considered as viewing the court as illegitimate.
Here are four takeaways from the Kavanaugh battle for public perceptions of the high court.
1. The Supreme Court’s legitimacy is probably safe
The conventional wisdom is that the Supreme Court’s legitimacy is extremely tough to shake. Fundamental commitments to democratic values, such as political tolerance and the rule of law, shape beliefs about judicial legitimacy. Because people adopt these values early in life, belief in the court’s legitimacy tends to remain stable over people’s life spans.
Second, nearly every major contemporary political controversy failed to hurt the Supreme Court’s legitimacy. Americans didn’t lose faith after the controversial Bush v. Gore decision — or after its Obama-era decisions on affirmative action, voting rights and same-sex marriage.
To be sure, Americans sometimes see the court as more legitimate when they agree with its decisions. But because Americans are so polarized, approval and disapproval of any particular decision tend to cancel each other out. So long as its policymaking stays relatively balanced between ideological poles, the high court’s legitimacy seems secure.
Third, most of the public pays only glancing attention to the court. Only half of Americans report following the Kavanaugh hearings closely. Other high-profile headlines — about the 2018 elections, the Mueller investigation and other pending issues — will push it out of the news after the confirmation battle ends. By the time the court issues high-profile rulings next June, much of the public will have forgotten the hearings — and will be unlikely to penalize the court.
2. Naked partisanship could spell trouble
But there’s one important caveat. Both senators and the nominee have been remarkably partisan during these hearings. Republicans argued that Dianne Feinstein withheld allegations of sexual assault from the committee for political gain. Democrats accused their Republican colleagues of stifling a full FBI investigation. This matters.
When political scientists studied Justice Samuel Alito’s confirmation process, we found that a vicious confirmation fight, on its own, did not dent the court’s legitimacy. But Americans who saw ads for or against Alito during the confirmation process came away seeing the court as less legitimate than people who did not. That’s probably because the ads made the court seem like a “typical” political institution. Indeed, many studies have shown that the court’s legitimacy suffers whenever the public views it as a “normal” partisan political institution, rather than a principled, nonpartisan body.
This means that the nakedly partisan battle over Kavanaugh’s nomination could damage Americans’ belief that the court is above the fray. Interest groups have spent more than $13 million in advertising to promote Kavanaugh’s nomination. Republican and Democratic senators peppered their statements with partisan attacks. Kavanaugh called the confirmation process a partisan battle, saying Dr. Christine Blasey Ford’s allegations of sexual assault were “a calculated and orchestrated political hit” intended to exact “revenge on behalf of the Clintons.” Such overt politicking could diminish the court’s legitimacy.
3. It’s not necessarily about Kavanaugh
Of course, any Trump nominee might eventually hurt the court’s legitimacy. For example, when court decisions dissatisfy a particular group, they gradually see the court as less legitimate. By many accounts, Kavanaugh — or any extremely conservative justice — could tip the court’s policymaking to the right, disappointing left-of-center Americans. Repeated disappointments would likely erode liberals’ belief in the court’s legitimacy.
4. More than legitimacy is at risk
Legitimacy is only one type of public support. Although court legitimacy tends to be stable, judgments about the court’s performance and public trust in the court fluctuate widely. Partisans tend to have more confidence in the court when they are happy with its decisions. Indeed, according to Gallup, Democrats’ confidence in the court has drastically declined this summer — while Republicans’ confidence has gone up since President Trump’s election. Given the overtly partisan nature of these hearings, some will lose confidence in the court.
Declining confidence affects how bold the justices feel they can be. Even though they can seem out of touch, they pick up on signals about their declining support. For example, when the court’s public support is low, Congress is more willing to introduce legislation that pares back their decisions. At those times, the justices become less prone to overrule Congress — while Congress feels more emboldened to overturn the court’s decisions.
In other words, no matter how last week’s hearings affected the high court’s legitimacy, the battle to confirm Kavanaugh may nevertheless significantly shape policy and the law.
Michael J. Nelson (@mjnelson7) is Jeffrey L. Hyde and Sharon D. Hyde and Political Science Board of Visitors Early Career Professor in Political Science and associate professor in political science at Pennsylvania State University, affiliate faculty at Penn State Law, and author of “Black and Blue: How African Americans Judge the U.S. Legal System.”