The orthodox answer to the question posed in the title of this article is that the legitimacy of institutions has something to do with acquiescence to unwelcome public policy decisions. We investigate that conventional wisdom using an experiment embedded within a representative national sample in the United States. We test hypotheses concerning not only the effect of institutional legitimacy on acquiescence, but also the influence of partisanship, the rule of law, and simple instrumentalism on willingness to accept an objectionable policy decision. Our analyses reveal that legitimacy does matter for acquiescence, and that the Supreme Court is more effective at converting its legitimacy into acceptance than is Congress. Yet, many important puzzles emerge from the data (e.g., partisanship is not influential), so we conclude that Legitimacy Theory still requires much additional empirical inquiry.
Over the past decade or so, scholars of the judicial process have devoted considerable attention to studying the so-called legitimacy-conferring capacity of courts. The most common research design involves presenting people with a policy with which they disagree and then trying to ascertain whether a court ruling increases the probability of acceptance, acquiescence, and compliance. The evidence seems to be that courts have the power to "legitimize" some types of decisions, under some circumstances (Gibson 1989; Gibson and Caldeira 2003).
This process seems to be well represented by the presidential election of 2000 and the decision of the Supreme Court in Bush v. Gore (121 S Ct 525 (2000)). A simple view of the connection between this case and extant theory is easy to construct. A bitter political controversy arises. The dispute bounces around various institutions, with no definitive resolution. Finally, the Supreme Court intervenes and makes a decision. Some grumble about the Courts opinion, but political elites call for the ruling to be "respected," much if not most of the mass public accepts the outcome, and the controversy subsides. Scholars then talk of the Court expending its "political capital" and worry about the efficacy of the institution in future clashes, but the Court seems to have enough legitimacy to "get away with" its ruling and make it stick. This conflict will no doubt enter our textbooks as a prototypical example of the efficacy of judicial legitimacy.
There is of course more to Bush v. Gore than this simple caricature (for a more detailed analysis see Gibson, Caldeira, and Spence 2003). Nonetheless, the dispute provides a natural context within which to reexamine the question of judicial legitimacy. That is our purpose in this article. In particular, we report the results of a national survey conducted in January 2001 on the legitimacy of the Supreme Court and its ability to generate acceptance of an unpopular Court ruling. Our survey included an experimental vignette, based on a hypothetical scenario. Although hypothetical, the scenario was not fanciful; instead, at the time of the interview, it was highly plausible since it posited that the Supreme Court or Congress makes a decision in a dispute over counting the ballots in Florida after the presidential election had ended.1 We take advantage of the plausibility of this scenario to test a series of theoretically informed hypotheses about institutional legitimacy and acquiescence. Specifically, we consider whether the Court has more power than Congress to generate acceptance, whether the processes and methods of institutional decisionmaking contribute to citizens' willingness to acquiesce to a decision, and whether legitimacy has any efficacy when juxtaposed against strong instrumental considerations. This article is not an analysis of Bush v. Gore. It does, however, use the election dispute to reconsider the essential nature of judicial legitimacy and its consequences for politics and the political system.
Our findings are at once simple and complicated. …