Legitimacy and Power: Framing in U.S. Supreme Court Justices’ Opinions and Off-Bench Discourse

Date of Award

2023

Document Type

Dissertation

Degree Name

Doctor of Philosophy (Ph.D.)

Institution Granting Degree

Georgetown University

Cedarville University School or Department

History and Government

First Advisor

Diana Kapiszewski

Second Advisor

Jonthan Ladd

Third Advisor

Douglas Reed

Keywords

Judicial decision making and behavior, legitimacy, power, U.S. Supreme Court

Abstract

This dissertation advances research on the relationship between U.S. Supreme Court justices’ concerns for the Court’s legitimacy and their assertions of power in their framing of majority opinions and in their off-bench writing and speaking. Building on scholarship on power, framing, judicial decision-making and behavior, and Supreme Court legitimacy, I employ a multi-method approach that looks beyond the more common focus on justices’ votes and case decisions to instead focus on how justices frame their majority opinions, interviews, speeches, and published books. In my quantitative analysis, I utilize an original dataset of 51 major First Amendment majority opinions, drawing on their corresponding 700 coded Westlaw headnotes (summaries of key facts of the opinions) to score each majority opinion on the assertiveness with which it was framed (i.e., whether it revised existing understandings of constitutional rights and censored or condemned government actions or statutes, all highly consequential determinations by the Court). I find that an increase in congressional Court curbing in the year prior to a decision being handed down relates to greater assertions of power in majority opinions. I additionally find initial indications that this relationship may be conditioned by the size of the majority coalition (with justices appearing more likely to hand down assertive opinions in response to increased Court curbing when backed by a large majority coalition). For the qualitative analysis, I reviewed 180 speeches, interviews, and books by justices, and find a complementary dynamic of justices asserting or promoting the power of the Supreme Court alongside discussions of legitimacy concerns. They did this by promoting the prestige and unique purpose of the Court, by seeking to correct misconceptions that could damage the Court’s power, and by emphasizing the value and necessity of components of the Court’s power. I argue that justices’ decisions to assert the Court’s power in the face of legitimacy concerns are rational choices for strategic justices who desire for the Court to appear strong and imperturbable at the very time when it is most valuable for the Court to be viewed in such a way—when its legitimacy status is threatened or weakened.

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