Supreme Court, Public Opinion, Media, Rule of Law, Legitimacy, Judicial Decisionmaking, Judicial Selection
American Politics | Journalism Studies | Judges | Law | Law and Politics | Law and Society | Legal Studies | Political Science | Public Law and Legal Theory | Social and Behavioral Sciences
What images of judging did the Kagan confirmation process project?
My response to this question begins with a brief overview of existing public perceptions of the Supreme Court. I argue that a large portion of the public sees the justices as impartial arbiters who can be trusted to rule fairly. At the same time, a large portion of the public also sees the justices as political actors who are wrapped up in partisan disputes. Given these prevailing public views, we should expect the Kagan confirmation process to transmit contradictory images of judicial decisionmaking, with a portrait of judging as a matter of reason and principle vying for attention with a picture of judging as a political enterprise.
Second, I identify the different appearances of judicial action actually at play in the Kagan confirmation process by assessing all confirmation-related news articles, editorials, opinion pieces, and blog posts published in the Washington Post, the New York Times, and the Los Angeles Times. I find that the confirmation coverage in the three newspapers conveys a contradictory mix of images that closely corresponds to the contradictory views of the Court already held by large numbers of Americans.
Finally, I consider the significance of the Janus-faced public beliefs about the Supreme Court. I acknowledge the ways in which political perceptions can chip away at judicial legitimacy, but I also argue that the public’s competing views may ultimately have a stable co-existence. If we believe that individuals generally place contradictory demands on the courts, calling for an objectively fair system and at the same time seeking a guarantee that their own side will prevail, then a judiciary that appears at once to be governed by impartial principle and by partisan preference may cohere.
Forthcoming in Wake Forest Journal of Law & Policy, Spring 2011