Compensation and Compliance: Sources of Public Acceptance of the U.K. Supreme Court's Brexit Decision

By Gonzalez-Ocantos, Ezequiel; Dinas, Elias | Law & Society Review, January 1, 2019 | Go to article overview

Compensation and Compliance: Sources of Public Acceptance of the U.K. Supreme Court's Brexit Decision


Gonzalez-Ocantos, Ezequiel, Dinas, Elias, Law & Society Review


O n January 24, 2017, the highest court in the United Kingdom handed down a decision in what the Guardian called "the most important constitutional case ever to be heard by the Supreme Court."1 In June of the previous year, a private claimant had thrown a lower court into the muddy waters of the Brexit saga, demanding that Theresa May's Conservative government be forced to seek parliamentary approval before triggering the process that will eventually culminate with Britain's exit from the European Union-approval the Prime Minister had hitherto insisted was not necessary. After these judges ruled against the government, tabloids accused them of being "enemies of the people."2 The Supreme Court subsequently upheld the judgment, and was attacked and praised in equal measure by the two sides of the debate. Under what conditions are citizens more likely to accept controversial rulings such as this one as final and binding? Do the characteristics of court outcomes as well as the reaction of important institutional players condition acceptance?

Judicial politics scholars define acceptance as the decision to acquiesce to a judgment, "cease opposition and get on with politics" (Gibson et al. 2005: 188). Acceptance speaks to the ability of judges to function as arbiters, "settle political conflicts, or at least make it more difficult for opposition to continue to mobilize" (Gibson and Caldeira 1995: 466). As "the least dangerous branch," courts rely on the belief that they can legitimately hand down authoritative, binding, and final decisions as "a critical indirect path towards compliance" (Caldeira 1986; Nicholson and Hansford 2014: 621; Tyler 1984). Importantly, should judges upset powerful legislative or executive actors, mass acceptance of rulings provides an important source of leverage because it complicates efforts by political entrepreneurs wishing to engineer backlash against judicial institutions (Helmke and Staton 2011; Vanberg 2001, 2005).3 But even if backlash in the form of outright disobedience or proposals to weaken judicial prerogatives does not materialize in the wake of controversial rulings, mass acceptance is still important for the long-term development of courts' legitimacy. Acceptance of specific rulings is part of the running tally that leads citizens to build a "reservoir of goodwill" toward the judiciary, which is a form of institutional loyalty that "embodies the notion that failure to make policy pleasing in the short-term does not necessarily undermine the basic commitment to support the institution" (Gibson et al. 2005: 189). At a more basic level, studying mass acceptance allows us to see how the public views one of the key decision makers in the political system and its prerogatives. For example, is the public willing to entertain, contrary to what is stipulated in law, that Supreme Court decisions are not final and binding?

Acceptance of specific judgments is shaped by the way in which judicial behavior is framed during the public debate (Gibson and Caldeira 2009; Gibson et al. 2005; Hoekstra 1995; Nicholson and Howard 2003). Framing strategies encourage "readers or listeners to emphasize certain considerations above others when evaluating" the issues at stake (Chong and Drukman 2007: 367). This paper contributes to this body of work by exploring the effect of competing frames on the likelihood that citizens accept controversial rulings as final. We take a broader view of the strategies and actors that influence the discursive environment surrounding rulings, and call attention to determinants of acceptance hitherto ignored by scholars of courts and public opinion.

First, we argue that signaling that judgments are not zero-sum decisions, but effectively compensate losers, boosts levels of acceptance. It is well established that judges facing difficult choices tend to rule strategically, and often avoid inflicting losses on powerful actors or compensate them to prevent outright rejection of judgments (Helmke 2005; Knight and Epstein 1996; Staton and Vanberg 2008). …

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