The project studies the conditions under which judicial institutions that protect minority rights can emerge in majoritarian political systems. It responds to the puzzle: Why don't legislative majorities curb courts that prevent the implementation of enacted legislation when those majorities have the constitutional ability to do so? The research team proposes that judicial protection of minorities can emerge as an unintended by-product of majoritarian politics. Popular majorities support judicial review because courts benefit majorities by protecting them against "corrupt" or "captured" legislatures. Researchers test this theory using a controlled experiment that assesses whether respondents? evaluations of the US Supreme Court relative to the Congress are changed by reports of congressional corruption, news of judicial decisions that conform to subjects? preferences, or an interaction of these two treatments.
The proposed research is valuable for scholars of political development and institutional design, especially in democracies with multiracial and multiethnic societies. The project also contributes to graduate education.
"Prejudice against discrete and insular minorities" is a "special condition" that allows heightened judicial scrutiny of legislation aimed at "particular religious … national … or racial minorities" (US v. Carolene Products Co., n.4, 1938). This aspiration, however, leads to a puzzle regarding the ability of judges to protect minorities in separation-of-power systems: Why don't legislative majorities choose to curb courts that prevent the implementation of legislation when those majorities have tools to do so? We argue that judicial protection of minorities emerges as an unintended by-product of majoritarian politics. Popular majorities support judicial review because courts provide protection from corrupt legislatures. This position is supported by evidence from a controlled experiment showing that respondents’ evaluations of the Supreme Court relative to Congress are increased by reports of congressional corruption, news of judicial decisions that conform to subjects’ preferences, and an interactive effect between these two treatments. We develop a model of interaction between voters, a court, and a legislature. We deduce results and testable hypotheses from the model, and test the hypotheses using an experimental design. The funded experiment was administered online during February 2011 to a sample of 607 (completed interviews) subjects recruited by Knowledge Networks, an internet survey research firm. Subjects were randomly assigned to a treatment or control group on each of the two factors. Participants assigned to the treatment group were asked to read contrived news stories that purport to represent political conditions in the United States government and then asked a series of questions gauging their confidence in Congress and the Supreme Court. Control group members will answer the same battery of question without exposure to the stimulus articles. For Factor 1 (Legislative Corruption), participants in the treatment group were exposed to an account of a congressional scandal involving the regulation of the banking industry involving a congressman who may have received loans at below-market interest rates from financial institutions under the jurisdiction of his committee. For Factor 2 (Court Controversy), treatment subjects were asked to read a news item that presents a salient judicial decision. Following exposure to the experimental treatments, subjects were asked to indicate their level of confidence in Congress and the Supreme Court, respectively, using a feeling thermometer item in the form used by the American National Election Study, which measure ``highly general attitudes toward the institution'' (Gibson, Caldeira, and Spence 2003a, p. 363). In turn, these are used to construct a measure of the differential level of confidence in each branch of government expressed by the participants and to assess the extent to which exposure to the stimuli influenced subjects’ evaluations of the branches of American national government. Five hundred sixty-two (562) participants respondent to all relevant sruvey items. Patterns of respondents' expressed levels of comparative support for Congress and the Supreme Court are generally consistent with our theoretical expectations. Our project makes important intellectual contributions to the fields of political science and law and has important implications for constitutional designers and political leaders who are interested in protecting the rights of political minorities. First, our theoretical and empirical results indicate that judicial countermajoritarianism is an incidental outcome of majoritarian politics. Popular majorities support judicial review and judicial independence for their own purposes. This only coincidentally happens to carve out space for a countermajoritarian court to protect minorities without being disciplined by the legislature. (Legislators are deterred by the threat of electoral retribution by voters.) In this account, judicial protection of minorities is more contingent than we traditionally recognize. Neither majorities in the electorate nor legislative majorities really want judicial review in and of itself. Instead, the majority of voters tolerate it in order to gain policy benefits that they really value and to minimize informational costs. Legislatures accept judicial independence because voters will (sometimes) punish them if they discipline judges. This conclusion speaks to fundamental issues of protecting minority rights in political systems governed by majority preferences including the problem of protecting the rights of racial, religious, ethnic, and sexual minorities in pluralistic societies. In particular, these findings suggest that majority support for potentially countermajoritarian institutions can only arise when those institutions nonetheless serve majoritarian interests. Thus, our project identifies the need to wed institutional safeguards for minorities with the interests of political majorities.
