Judicial Elections: Directions in the Study of Institutional Legitimacy
Benesh, Sara C., Judicature
Research concerning judicial legitimacy remains imperfect In this essay, I explore the proper measurement of the concept of legitimacy the specification of the genesis of legitimacy and the consideration of legitimacy of other institutions.
James Gibson, in his book Electing Judges, has once again set the standard for inquiry into the legitimacy of courts and the forces that coalesce to influence that legitimacy. Legitimacy is the source of the courts' substantial influence within our system of government and, as such, there is no question that the study of legitimacy is as important now as ever. But, in many ways, especially for state courts, we know barely anything about this all-important source of judicial power. Systematic, careful, and creative analyses of the questions raised when we consider legitimacy, then, are sorely needed and Gibson's work contributes significantly to what we know by urging us to do three things:  consider citizen expectations when attempting to ascertain the impact of various behaviors on the legitimacy of courts, (2) compare citizen reactions to campaigns for judicial positions with campaigns for state legislatures to determine the extent to which judicial elections are unique, and (3) consider the possibility that elections themselves confer legitimacy on state courts, even when campaigns serve, in some ways, to detract from it.
But the research concerning judicial legitimacy (at any level) remains imperfect. There are three major areas that deserve increased attention, more research, and better understanding: (1) the proper measurement of the concept of legitimacy, (2) the specification of the genesis of institutional legitimacy, and (3) the consideration of the legitimacy of institutions other than courts. In this essay, I consider what we know and what we don't know about institutional legitimacy, and highlight questions for future research.
First, how does one validly and reliably measure the concept we have come to know as "legitimacy?" Legitimacy, or diffuse support, is often conceptualized as an enduring indicator of institutional loyalty.1 "Diffuse support refers to a 'reservoir of favorable attitudes or good will that helps members to accept or tolerate outputs to which they are opposed or the effects of which they see as damaging to their wants.'"2 Gibson, Caldeira, and Spence argue that diffuse support is "institutional loyalty; it is support that is not contingent upon satisfaction with the immediate outputs of the institution."3 Furthermore, they argue that this institutional loyalty obtains even if the institution fails to make agreeable decisions in the short-term. Specific support, on the other hand, is "satisfaction with the immediate outputs of the institution."4 Because these conceptualizations have characterized measurement of institutional legitimacy for decades in scholarly research, we should expect that the indicators used to measure diffuse support capture long-term sentiment as opposed to short-term satisfaction with decisions or with policy outputs. Most of the research in this area, especially on the Supreme Court, has used a number of survey question responses combined into an index that aims to measure respondents' disposition towards the Court, and, in part of his book, Gibson adopts a similar scale. The trouble is, no uniform number or set of questions comprises the diffuse support, or legitimacy, index and it appears that some components (trust, for example) tap short-term rather than long-term institutional support. Although the questions on limiting the Court's power, generally, doing away with the court altogether, or limiting the Court's jurisdiction over certain specific areas of policy likely tap that persistent diffuse support discussed by Easton, other questions focus on how much an individual perceives the courts to be involved in politics, favor certain groups or people over others, or can be trusted to do the right thing or consider the best interests of the public in making decisions - all of those questions likely tap policy outputs in the shortterm. …