Keep Your (Horse) Hair On? Experimental Evidence on the Effect of Exposure to Legitimising Symbols on Diffuse Support for the High Court

AuthorIngrid Nielsen,Zoe Robinson,Russell Smyth
Date01 September 2020
Published date01 September 2020
Subject MatterArticles
Keep Your (Horse) Hair On?
Experimental Evidence on
the Effect of Exposure to
Legitimising Symbols on Diffuse
Support for the High Court
Ingrid Nielsen*, Zoe Robinson**
and Russell Smyth***
Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate
judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in
the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising
symbols evoke images of learning and pageantry and create the presumption that the process by
which the decision was made was fair. Typically, positivity theory has been tested by examining
whether people who have a greater awareness or knowledge of the courts express higher diffuse
support for their decisions. Yet, such an approach assumes that those who know more about the
courts will have greater exposure to their legitimising symbols. It does not directly test if exposure
to the courts’ legitimising symbols causes people to be more acquiescent with decisions with which
they disagree. In this article we use a survey-based experiment to examine if exposure to the
legitimising symbols of the High Court makes people more willing to accept decisions of the Court
with which they disagree. We assess whether the decision of the High Court Justices to simplify
their attire, including, since 1988, ceasing to wear wigs when sitting on the Bench, has adversely
affected the Court’s institutional legitimacy by removing some of the mystique associated with the
decision-making process. We find that exposure to the Court’s legitimising symbols is associated
* Professor and Head of the Department of Management, Monash Business School, Monash University. The author may be
contacted at
** Professor, School of Politics and International Relations, Australian National University; Professorial Research Fellow,
Deakin University. The author may be contacted at
*** Professor and Deputy Dean (Academic Resourcing), Monash Business School, Monash University. Earlier versions of
this article were presented at the Eighth Annual Conference of the Australian Society for Quantitative Political Science
at the University of Melbourne and the Fourteenth Annual Conference of the Australian Law and Economics
Association at Swinburne University. We thank participants in these conferences, as well as Catrina Denvir,
Matthew Groves, Shiri Krebs and the anonymous reviewers for several helpful suggestions on earlier versions of
this article, although the views expressed here and any errors are ours alone. This research was approved by
Monash University H uman Ethics Committ ee (Project 16996). T he author may be conta cted at russell.smy th@
Federal Law Review
2020, Vol. 48(3) 382–400
ªThe Author(s) 2020
Article reuse guidelines:
DOI: 10.1177/0067205X20927818
with higher acquiescence with decisions which people disagree with, but the Court’s decision to
simplify the Justices’ attire has not adversely affected diffuse support for its decisions. Our findings
are important because the Court is reliant on maintaining legitimacy to enforce the rule of law.
Our results speak directly to how the Court can best take steps to increase its institutional
legitimacy in the eyes of the public.
I Introduction
The administration of justice depends on the courts having institutional legitimacy. Institutional
legitimacy, in turn, is dependent on a series of ‘factors... justifying public trust’.
legitimacy is typically equated with the courts having diffuse support, which is dependent on there
being a reservoirof deep-seated goodwill among the general public that runs far deeperthan whether
James Gibson has famously described legitimacy as
being for losers.
In framing the issue in these terms, he emphasises that if the courts always made
decisions with which everyone agreed, they would not need to rely on having legitimacy to enforce
those decisions. However, because the courts make decisions that are unpopular, or with which not
everyone agrees, to attain public acceptance of such decisions the courts rely on there being a
reservoir of goodwill.
This is important b ecause, unlik e the Parliament, the courts do not have a n
electoral mandateto enforce their decisions. Alexander Bickel has termed the idea thatan unelected,
and hence nondemocratic, institution can strike down legislation enacted by elected representatives
of the people as the ‘counter-majoritarian difficulty’ of the Court.
Writing about the United States Supreme Court, Benjamin Woodson states:
The relationship between the public’s agreement with the policy output of the United States Supreme
Court and its perceived legitimacy is intensely studied for good reason. The Court is expected to act as
a counter-majoritarian institution, sometimes going against public opinion. It can fulfil this role only if
its legitimacy withstands the negative pressure of displeasing decisions. If it cannot, then when the
Court consistently fulfils its counter-majoritarian role, its legitimacy will dissipate, depriving the Court
of its most effective enforcement mechanism.
The same is true for the High Court of Australia (hereafter High Court). In an empirical study of
the extent to which the High Court strikes down Commonwealth legislation, Russell Smyth and
1. Marc A Loth, ‘Courts in a Quest for Legitimacy: A Comparative Approach’ in Nick Huls, Maurice Adams and Jacco
Bomhoff (eds), The Legitimacy of Highest Courts’ Rulings: Judicial Deliberations and Beyond (TMC Asser Press,
2009) 267, 268 cited in Sarah Murray, ‘Preventative Justice, the Courts and the Pursuit of Judicial Legitimacy’ in
Tamara Tulich (ed), Regulating Preventative Justice: Principle, Policy and Paradox (Routledge, 2017) 195, 202.
2. John M Scheb and William Lyons, ‘Diffuse Support, Specific Support and Attentiveness: Components of the Public’s
Assessment of the Supreme Court’ (1999) 27(4) Politics and Policy 765.
3. James Gibson, ‘Legitimacy Is for Losers: The Interconnections of Institutional Legitimacy, Performance Evaluations
and the Symbols of Judicial Authority’ in Brian Bornstein and Alan Tomkins (eds ), Motivating Cooperation and
Compliance with Authority: The Role of Institutional Trust (Springer, 2015) 81.
4. Gregory Caldeira and James Gibson, ‘The Etiology of Public Support for the Supreme Court’ (1992) 36 American
Journal of Political Science 635, 658.
5. Alexander Bickel, The Least Dangerous Branch (Bobbs Merrill, 1962).
6. Benjamin Woodson, ‘The Dynamics of Legitimacy Change for the US Supreme Court’ (2018) 39(1) Justice System
Journal 75, 75.
Nielsen et al 383

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