EUROPEAN COMMISSIONDIRECTORATE-GENERAL XInformation, Communication, Culture, AudiovisualCentral information officePublic opinion analysis

EUROPEAN COURT OF JUSTICE

Results ofEurobarometer Surveys N° 38.0 and 40.0

June 1994

Rue de la Loi 200, B-1049 Bruxelles/Wetstraat 200, B-1049 Brussel - Belgium - Office: 9.11.11.Telephone: direct line (+32-2)296.16.62, switchboard 299.11.11. Fax: 299.45.77.Telex: COMEU B 21877. Telegraphic address: COMEUR Brussels.

Changes in the Legitimacy of the European Court of Justice:A Post-Maastricht Analysis

British Journal of Political ScienceForthcoming

James L. GibsonCullen Distinguished Professor

Department of Political ScienceUniversity of HoustonHouston, TX 77204

United States

Gregory A. CaldeiraProfessor

Department of Political ScienceOhio State University

Columbus, OH 43210United States

Version 3.3

*This is a revised version of a paper delivered at the "Frontiers of EC-Judicial Research" Con-

ference, Copenhagen, Denmark, 2-4 June, 1994. We deeply appreciate the gracious hospitality

of Hjalte Rasmussen and the University of Copenhagen, as well as his and other conference

participants' comments and suggestions. This paper is a joint product of the two authors. We

are indebted to the (U. S.) National Science Foundation (SBR-9213905, SBR-9311397, SBR-

9213201, and SBR-9312689) and the (German) von Humboldt Stiftung for major support for

this project. We also acknowledge the support of the Limited-Grant-in-Aid Program

(University of Houston). We are indebted to Dominique Vancraeynest (Director of INRA),

Anna Melich and Eric Marlier (both of the Eurobarometer) for their technical assistance on

this project. Without the extraordinary support and collaboration of Karlheinz Reif (Director of

the Eurobarometer) we could not have brought this project to fruition. Mark Franklin has

made several useful suggestions about portions of this analysis. None of these people nor any

agencies bears any responsibility for the results or interpretations.

In 1992 the European Community1 ran hard aground on a shoal of democracy. Thesquall over democratic accountability that had been building finally hit the Community withfull force. Although the ship of state was not capsized, for a time it appeared uncertainwhether the vessel could right itself and set upon its proper course. This storm will long beknown simply as 'Maastricht'.

The fury of Maastricht was poorly forecast by social scientists. Though some wereaware that the barometer of public support for the European Union was falling, there was littlesystematic analysis of the legitimacy of European Union institutions which could be used toanticipate Maastricht. Indeed, apart from some evidence on support for the EC in general,2scholars and policy makers knew little before 1993 about the basic legitimacy of the centralinstitutions of the EC. This inattention to mass beliefs and preferences was in part groundedin the assumption that ordinary Europeans know little about the transnational institutionsthat govern them, and that it therefore makes little sense to engage in empirical investigationsof their beliefs. Maastricht caught many by surprise because they assumed that the Europeanmass public would meekly acquiesce to elite-driven schemes for greater European integration,just as it had in the past. Maastricht requires us to reconsider this basic presumption.

Our purpose in this article is therefore to investigate the mass legitimacy of EuropeanUnion institutions, with particular focus on its highest judicial body, the European Court ofJustice. We base our analysis on three surveys of the mass publics conducted in 1992 and1993 in each of the member states. To this point, we have reported some initial findings onsupport for the European Court of Justice.3 We discovered that, during the Autumn of 1992- at the height of the fury over Maastricht" the ECJ had a moderate degree of visibility; it wasnot as well known as the European Parliament but was far from unnoticed. On several itemsdesigned to tap commitment to the institution, we found that the ECJ had more enemies thanfriends, and thus did not stand on a bedrock of institutional legitimacy. For instance, of thosewho were dissatisfied with the Court's performance, only a small proportion expressed awillingness to retain the Court if it continued to make objectionable decisions — the sine quanon of diffuse support for an institution.4 On the other hand, diffuse support is important -those who expressed support for the Court were far more predisposed to acquiesce to andaccept a disagreeable Court decision.5 Thus, our papers suggest that diffuse support is indeeda valuable commodity, but, in the context of 1992, that the Court could not rely upon supportfrom many of those who did not approve of its performance.

Our purpose in this current analysis is entirely different. First, since our first survey wasconducted during the dash over Maastricht, we need to determine whether our earlier findingson the ECJ are stable and applicable to the period following the ratification of the treaty ofMaastricht. It is possible that support for EC institutions was at a nadir in the Fall of 1992.Second, our earlier research focused exclusively on the European Court of Justice. Here, weseek greater purchase on the meaning of mass legitimacy through a cross-institutional analysis,focusing not just on the European Court of Justice but on the European Parliament andnational high courts as well. The central theoretical question is whether more legitimateinstitutions can transfer some of their legitimacy to less well endowed institutions. Thus, wehope our analysis here provides a much more general assessment of the legitimacy of the

-1-

primary institutions of the European Union.We begin our analysis with a theoretical discussion of the meaning of legitimacy, and

one of its cardinal components, 'diffuse support'. We then apply these concepts to the'democracy deficit'6 of the EU and the European Court of Justice. Our analysis next proceedsto assess several empirical questions, including the levels of legitimacy of the European Courtof Justice, the national high courts, and the European Parliament. After considering — at boththe macro and micro levels - whether the legitimacy of the European Court of Justicerebounded after the Maastricht period, we assess the 'legitimacy-transferring capacity' of theEuropean Parliament and the national high courts. Finally, we conclude by examining theimplications of our findings for further inquiry into the legitimacy of the European Union andits major institutions.

The Meaning of Mass LegitimacyJust what does 'mass legitimacy' mean? 'Legitimacy' is a concept with a myriad of inter-

pretations so it is important that we begin this analysis with some explicit theoreticaldefinitions of our central concepts.7

Political legitimacy involves rights; it involves authority. It is the authority to govern,tOJnake binding decisions for the polity. It is 'precisely the belief in the rightfulness of a state,in its authority to issue commands, so that those commands are obeyed not simply out of fearor self-interest, but because they are believed in some sense to have moral authority, becausesubjects believe they ought to obey'.8 Thus, legitimacy involves the relationship between thecitizen and the state - it is a condition under which citizens cede authority to the state andits institutions based on the normative judgment that the relationship is proper. '[Legitimacyis in the first place a belief, stated or implied, in the right of government to form policies, toattend to the general arrangements of society and its relation to other states, and to enforceits commands. In other words, legitimacy exists where there is a belief in the government'sright to govern'.9 Thus, legitimacy is an empirical concept referring to patterns of beliefsamong the mass public.

Why do citizens cede this authority? Typically, they do so because they are given someprotection against the state via institutions of accountability, usually electoral systems.Although history may not have ended yet,10 in the late twentieth century there is no morepowerful source of political legitimacy than elections." Thus, scholars 'distinguish legitimatefrom illegitimate governments by focusing on constitutional provisions that establish theopportunity for wide public participation and ensure procedural regularity, especially provisionsdealing with majority rule, minority rights, and accountability in regular and frequentelections'.12

We believe it important to distinguish between legitimacy and obedience, even thoughthe two concepts are often intertwined. The central organizing hypothesis of legitimacyresearch is that legitimacy enhances obedience (compliance). That is, legitimate polities aremore likely to succeed in securing compliance with law, even unpopular law. The moralauthority to govern creates a normative presumption that decisions will be accepted. Of course,people obey laws for many reasons other than felt normative obligations, but legitimacy is animportant contributor to compliance with law.13

-2-

The complaint is sometimes heard that legitimacy is not a useful concept because it isindistinguishable from habitual obedience.14 After all, citizens rarely engage in rationalconsideration of whether their political institutions have the moral authority to govern. In-stead, they simply accept those institutions, often without any thought whatsoever. Iflegitimacy represents nothing more than habit, its power as a political concept is greatlyreduced.

We readily agree that it is inappropriate to infer motives from simple observations ofbehavior. Citizens may acquiesce to authoritative decisions for many reasons, including simpleapproval of the decision, habit, fear of reprisals for resisting, resignation and apathy, etc. Thatcitizens do not revolt does not constitute evidence of the legitimacy - the moral authority -of a political or legal system.

Instead, to observe legitimacy requires an 'objection precondition'. That is, legitimacycomes most clearly into play when citizens object in some fashion to the actions of theirpolitical and legal institutions. The belief that an institution is behaving properly, within theconfines of its authority, can serve to dampen resistance to unpopular decisions. We do notassert that legitimacy has no meaning outside the context of disagreement, but legitimacy ismost palpable and politically important when citizens disapprove of the actions of theirpolitical and legal institutions. Thus, legitimacy in some respects smacks of irrationality (at leastin the short term) - it is the extension of support to an institution even in the face ofdisagreeable policy performance.

This view of legitimacy is closely connected to Easton's15 conceptualization of 'diffusesupport' for political institutions, captured well in his apt description of support as a 'reservoirof goodwill'. 'Diffuse support' refers to a commitment to an institution that is not contingentupon short-term satisfaction with policy outputs ('specific support'). Speaking of parliaments,Loewenberg and Patterson16 claim:

Although public attitudes toward legislatures vary depending on short-termpublic satisfaction with their performance, some part of the public attitudetoward the institution is unrelated to its performance but reflects long-terminfluences .... This more enduring attitude, based on cumulative experience withthe institution or with political authority over a lifetime, has been called diffusesupport, to indicate that it is general, that is, unrelated to specific experiences.This part of the attitude toward legislatures is theoretically of great significance,since it can be a source of public commitment to the institution through goodtimes and bad and a basis for public compliance with the enactments of thelegislature whether they are liked or not.

Legitimate polities can tap this reservoir of support when they make unpopular orobjectionable decisions.17 To the extent that political decision makers must slavishly struggleto satisfy mass opinion with every decision, effective governance becomes difficult if notimpossible.18

Discussions of legitimacy typically generally refer to the state. But, as Easton andothers have pointed out, it is also appropriate to think about legitimacy as an attribute ofindividual institutions and their authority to make binding public policy decisions. Citizenshave expectations about appropriate behavior for the political and legal institutions, their

-3-

competence and their bounds. Political and legal institutions perceived as legitimate areperceived as acting within their authority. Thus, as we noted earlier, a central hypothesis ofresearch on legitimacy is that this institutional legitimacy enhances obedience andcompliance even, or especially, under the condition of policy disagreement.

In our own work, we have conceptualized diffuse support as a commitment to thefundamental attributes (structure and function) of a political institution. Diffuse support is theunwillingness 'to accept, make, or countenance major changes' in the essential features of howan institution functions in a polity.19 Others have used a similar approach.20

Our conceptualization of legitimacy has direct relevance for the storm over Maastricht.The common name for the legitimacy crisis in this context is the 'democracy deficit'.

The 'Democratic Deficit' of the European UnionIn 1992, samples of the mass publics within each of member states of the European

Union were asked 'Do you think citizens have sufficient democratic influence in EC-decisionmaking, or not?' Fully 71.5 percent responded 'no' (only 14.4 percent said 'yes'). Data such asthese undergird the view that a legitimacy shortfall exists for the institutions of the EU.

'1992' was an historic year for European unification, but not exactly in the senseoriginally envisaged by European leaders. Instead of propelling the EC upward and onward tomore complete political union, 1992 turned out to mark an unprecedented controversy overfurther European political, economic, and legal integration. For decades, the member-states andinstitutions of the European Community had pressed steadily ahead on the political andeconomic integration of Europe, more or less unimpeded by public opinion, relying on the so-called 'permissive consensus'.21 An important milepost in the drive toward a 'United States ofEurope' was the signing in December, 1991, of the Maastricht Treaty (the Treaty on EuropeanUnion), a far-reaching plan for economic and political union.22 But, instead of solidifyingintegration, the Maastricht Treaty galvanized intense opposition in mass and elite publics acrossthe European Community. Referenda on ratification of the Maastricht Treaty exposed the lackof public understanding of and support for European union; voters first rejected the treaty inDenmark and passed it only narrowly in France23; and opposition groups in the UnitedKingdom and Germany called for referenda.24 Thus, by the Fall of 1992, the EuropeanCommunity faced the most serious crisis in its history, with genuine questions about whetherfurther integration would prove politically possible.

The extended crisis over Maastricht, of course, had a panoply of consequences - sometangible, some intangible — for the EU and its institutions. It raised the salience of theEuropean Community as never before, focused attention on the devolution of political powerfrom nation-states to bureaucrats in Brussels, and dramatized one of the chief concerns ofsupporters and critics alike, the 'democratic deficit' - the lack of popular control over theinstitutions of the European Community.25 Perhaps most important, this brouhaha seemed tochallenge the very legitimacy of the European Community, the right of these supranationalinstitutions to govern, precisely at the moment at which its supporters had hoped to see it takea major step forward. Popular support for the European Community dropped sharply by theend of 1992,26 although the consensus of elite support seemed to hold relatively steady. It is notclear at this point whether Maastricht will have a long-lasting negative effect on public support

-4-

for the European Community, but few doubt the politics of the EU will ever be entirely thesame again. The European mass public now has a voice in the debate over the future of Europe.The 'Democratic Deficit' of the European Court of Justice

The implication of public opposition to the Maastricht Treaty was ominous enough forthe European Community as a whole; and it was, perhaps, even more so for the Community'shighest court - the European Court of Justice. The Court of Justice, like most courts, dependsto an even greater extent on public esteem than do most other political institutions,27 in partbecause it lacks any electoral connection from which to draw legitimacy. And for the ECJ thequestion of public support bulks even larger than for most courts, since it has taken such aforceful and increasingly prominent role in leading European integration.28 It is, without doubt,the most powerful of the emerging set of transnational legal institutions; and it is among themost politically significant high courts in the world.29 It was also, until recently, largelysheltered from close public scrutiny or pressure from national and Community institutions.Maastricht brought increased scrutiny to all EU institutions, even the Court of Justice.30

But do the views of the mass public have any particular consequences for the functioningof judicial institutions such as the European Court of Justice? After all, it is sometimes argued,the mass public knows little about obscure institutions like the European Court of Justice; andsurely any views they might hold are ill-informed and probably lacking in substantive content.Moreover, even if the mass public is attentive, should mass legitimacy be of concern to judicialinstitutions? Since judges are not elected in Europe, electoral accountability is not relevant tocourts. Finally, to the extent that legitimacy is relevant to institutions like the European Courtof Justice, it is a type of legitimacy that must be transferred or borrowed from the 'political'institutions of the Community and of the national governments. The Court has little directlegitimacy; instead, its authority is derived from the political institutions that nominate itsjurists, fund its operation, and implement and obey its decisions. Thus, the entire concept ofmass legitimacy may be alien to institutions like the European Court of Justice.

These are not arguments with which we are sympathetic. Certainly we do not argue fora simple 'demand-input* model in which citizens make demands of the Court and it responds.31

But what the people will accept, not necessarily what they demand, can often impose importantconstraints on the actions of political and legal institutions. Institutions that attempt to imposeunpopular judgments on the mass public risk the expenditure of their political capital, with thepossibility that the institution will be attacked or even that its decisions will be ignored.Obviously, it is unlikely that citizens will take to the street in protest of a Court of Justicedecision " although there are some circumstances under which we can imagine this happening -but the reactions of citizens can embolden their political leaders to mount attacks on the Court.Thus, when Chancellor Kohl attacked the European Court of Justice in October 199232 - anattack keenly noticed by the Court.33'34 - he surely did so after calculating the likely preferencesof the German people. We certainly do not claim an all-powerful role for the mass public in thepolitics of the ECJ; but all political institutions, even judicial institutions, face considerable riskwhen they ignore the preferences of the mass public.

Nor need the preferences of the mass public be particularly informed preferences for themto have political consequences. One often hears derisive comments about the level of knowledgeof the mass public, with the claim typically being made that ordinary people confuse the

-5-

European Court of Justice with the Court of Human Rights, the International Court of Justiceor some other international tribunal. If people cannot even identify the city in which Courtworks, then how can their views matter?

We do not and need not contend that citizens have well-founded, highly factualunderstandings of institutions such as the European Court of Justice. Indeed, we do not believethat American citizens have such highly articulated views of the U.S. Supreme Court, the mostactive and politically relevant high court in the world.35 But general impressions they often dohave. And these general impressions typically guide the reactions of citizens to the actualpolitical controversies that emerge in politics. Perceptions that an institution is legitimate, thatit has the authority to make the decisions it makes, do not require a great deal of understandingof the actual operation of the institution, even though such perceptions and expectations canbecome extremely important to the effective functioning of courts. When the conduct of apolitical institution penetrates the consciousness of the mass public, factual knowledge mayoften be the least important variable in the political equation.

Until fairly recently, the Court has been relatively successful in avoiding the politicallimelight in Europe. Two things, however, have transpired to make the Court a more publicinstitution.36 First, elites have come to appreciate the enormous political power of the EuropeanCourt of Justice. Led by the trenchant analyses of scholars, political and legal observers nowunderstand that the Court has been successful in Grafting the legal infrastructure essential to thepolitical and economic integration of Europe.37 The Court has, of course, achieved far morethan the solution to esoteric commercial law problems; many of its decisions are quite relevantto ordinary citizens of the EU; and we believe knowledge of the institution and its role is slowly(and assuredly incompletely) diffusing throughout the body politic.38

A second, terribly important force is the rising worry over the 'democracy deficit' in allof the institutions of the European Union.39 This concern for democratic legitimacy affects theEuropean Court of Justice just as it affects the other institutions of the Union. The expectationsand preferences of ordinary citizens of the European Union have become vastly more significantfor all the institutions of the Union. The European Court of Justice has not been immune tothis fever for democracy - should, for instance, the European Parliament have the right toconfirm nominations to the Court, in much the same way that the United States Senate mustconfirm appointments to the U.S. Supreme Court?40 The Court certainly does not occupycenter stage in the drama that is the European Union, but concern over the institutionallegitimacy of the Court is significant and growing.

Finally, in defense in our claim for the importance of the mass public, there is somedramatic empirical evidence of the visibility of the European Court of Justice to ordinarycitizens of the European Union. In Eurobarometer 39 (Spring 1993), respondents were askedthe following open-ended question: 'Which institutions of the European Community have youheard of? Please give me the names you remember'. Responses were coded for nine institutions.The results for the most salient institutions are reported in Table 1.

[PLACE TABLE 1 ABOUT HERE]First, the open-ended nature of this item makes this is a difficult question for survey

respondents. Consequently, our estimates of salience must therefore be taken as minima - theinstitution is obviously salient to all who named it, but there is no doubt some additional

-6-

segment of the mass public that is familiar with the institution but for whom the institution didnot immediately spring to mind when asked the question. Therefore, we are not at all surprisedthat the percentage of respondents who could offer the name of no European Union institutionsranges from a low of 22.8 percent in Belgium to a high of 69.8 percent in Greece. In Greece,Great Britain, and Northern Ireland (and perhaps Portugal as well) more than one-half of therespondents could name no European Union institution. Second, the most salient EUinstitution is clearly the European Parliament. In every country, more respondents named theParliament more often than any other institution. Yet, even here, in only a minority ofcountries was at least half of the sample able to name the European Parliament as a EuropeanUnion institution. Third, and most remarkably from the perspective of this article, the secondmost salient institution in six of the countries is the European Court of Justice. In Great Britain,Northern Ireland, and the eastern part of Germany (and perhaps Ireland as well), the Court isnearly as salient as the Parliament. The ECJ is most salient in Luxembourg (the home of theCourt); but more than one-third of the Germans were able to mention the Court, and almosta third of the Belgians named the ECJ. Finally, there is a great deal of cross-national variabilityin all of these figures. The salience of the Court ranges from 8.3 percent in Italy to 47.6 percentin Luxembourg, but even the salience of the European Parliament varies from 15.7 percent to64.9 percent.

Has the European Court of Justice penetrated the consciousness of the mass publics ofthe EU? In six of the countries of the European Union, at least a quarter of the people identifythe European Court of Justice as a salient EU institution. This is an impressive finding. Andsurely many more Europeans have at least some awareness of the Court even though they mightnot spontaneously identify the institution when asked about the European Union. Finally, theEuropean Court of Justice is certainly no more obscure than other European Union institutionssuch as the Council and the Commission. The European Court of Justice has become areasonably well known institution.

Thus, the growing salience of the ECJ, together with the lacunae in our earlier work,render it important to revisit the question of the mass legitimacy of the European Court ofJustice. The first question to ask of our earlier research is whether the findings represent anaberrant period in history of the Court. It is essential therefore to consider how opinion mayhave changed since the fall of 1992.

A second significant limitation to our earlier work is that we were insufficiently attentiveto differences across institutions in levels of mass legitimacy. We found that the Court does notenjoy a great deal of support among the mass public. But does the European Parliament enjoygreater support? The assumption is often made that the Parliament is a fount of legitimacy forall EU institutions,41 but this assumption requires empirical investigation. Moreover, cannational judiciaries lend legitimacy to the European Court of Justice, and if so, to what degree?After all, to an important extent the European Court of Justice is heavily dependent upon thenational judiciaries both for case referrals and for the implementation of its decisions. It istherefore prudent to consider the legitimacy of the national judiciaries in addition to theEuropean Court of Justice. Consequently, our purpose here is twofold. We first consider

-7-

whether there has been a change in the attitudes of of Justice. Second, we investigate therelative legitimacy of the European Court of Justice, the European Parliament, and the nationalthe mass public toward the European Court high courts.

Research DesignThis article is based upon three major surveys of mass opinion within the European

Union.The 1992 Eurobarometer Survey

The first survey was conducted in each of the member states of the EC betweenSeptember 21 and October 15, 1992. We commissioned several questions concerning theEuropean Court of Justice and they were asked as part of the Eurobarometer 38.0, the semi-annual mass survey of the Commission of the European Communities. The Eurobarometersurveys are representative of the populations of the respective nationalities, aged 15 years andover, in each of the countries.The 1993 Eurobarometer Survey

Similarly, we were able to place some questions on the Court of Justice on the Autumn1993 Eurobarometer. The methodology of this survey is in every respect identical to the 1992EB.The 1992-1993 Panel Survey

In the fall of 1993 we were also able to re-interview sub-samples of the 1992Eurobarometer respondents. The re-interviews were by telephone, except in Ireland, Portugal,and East Germany, where telephone penetration was not sufficiently high to insurerepresentative samples. We excluded Northern Ireland from the panel re-interviews, and, sincenational law made it impossible to re-interview the Danish respondents, a fresh sample wasdrawn in Denmark. A panoply of methodological issues concerning the panel is addressed in atechnical appendix available from the authors.National High Courts

At several points in our survey, we asked the respondents their opinions about theirnational high court. Unfortunately, which institution constitutes the highest court is not anentirely unambiguous question in some of the countries of the EU.42 In France, theConstitutional Council exercises a form of judicial review; other courts do not. Nevertheless, wechose the Cour de Cassation as our target because we thought, and others advised, that someFrench people might not accept the designation of the Constitutional Council as a court. Inseveral of the countries, two or more high courts divide the functions performed by the UnitedStates Supreme CouTt, one of which exercises constitutional review. These include Germany,Greece, Portugal, Spain, and Italy. For these nations, we designated the constitutional court asthe high court. In the remainder of the nations in the European Union, we have opted for thehighest court exercising judicial review, or, in its absence, the highest court exercising appellatereview. These institutions are:

Belgium Hof van Cassatie (Cour de Cassation)Denmark H(4jesteretFrance Cour de CassationGerman Federal Republic Bundesverfassungsgericht

-8-

GreeceIrelandItalyLuxembourgThe NetherlandsPortugalSpainUnited Kingdom

Anotato Eidiko DikasterioSupreme Court of Ireland (Chuirt Uachtarach)Corte ConstituzionaleCour Superieure de JusticeDe Hoge Raad der NederlandenTribunal ConstitutionalTribunal ConstitucionalCourt of Appeal

Results — Support for the European Court of JusticeThe first question we can address is whether citizens of the European Union are satisfied

with the decisions being made by the European Court of Justice, that is, whether the Court hasany specific support.43 Table 2 reports the results from our survey.

[PLACE TABLE 2 ABOUT HERE]It is perhaps not surprising that not all Europeans have firm views toward the European

Court of Justice. The percentage of respondents who are undecided (or who have no opinion)about the way the Court has been working ranges from a low of 21.4 percent in Great Britainto a high of 60.8 percent in France. In Greece, Italy, Spain, France, Portugal and East Germanymore than 50 percent of the respondents have no specific evaluations of the Court (i.e., theywere undecided).

Is this inability to judge the European Court of Justice due to the fact that this is an EUinstitution or is it a more general lack of legal awareness among the mass public? We can getsome purchase on this question by considering how ordinary people evaluate the performanceof their national high courts. These data are also reported in Table 2.

It is certainly true that these respondents are more willing to express a view toward theirnational judiciary than toward the European Court of Justice; and in some countries thedifferences in the percentage undecided are substantial (e.g., in West Germany, Greece, Italy,Spain, and East Germany, the difference in the percentage of 'undecideds' exceeds 20 percent).But what is perhaps also surprising is the number of countries in which we find little appreciabledifference in the ability of citizens to judge the European Court of Justice and the national highcourt. For instance, in Belgium, Ireland, Luxembourg, Portugal, and Great Britain, the differencein the percentage undecided is less than 10 percent. In many countries, the inability to judgethe European Court of Justice is likely a simple manifestation of the inability to judge nationaljudicial institutions. In this sense, the politics of the EU differs little from domestic politics.

Among those who do hold opinions about the work of the European Court of Justice,most hold positive views. For instance, in Denmark, 52.6 percent of the respondents is at leastsomewhat satisfied with how the European Court of Justice has been working, where only 18.8percent is dissatisfied. The only significant exception to this finding is in East Germany, where18.8 percent of the respondents express some satisfaction, and 21.5 percent some level ofdissatisfaction. In general, then, to have an opinion about the work of the European Court ofJustice is to have a positive opinion of the institution.

The same is generally true of the national high courts — to the extent that citizens areable to form judgments about their high courts, the judgments tend to be positive. Two

-9-

important exceptions stand out. First, the East Germans are the most dissatisfied of all residentsof the European Union with their high court. This no doubt reflects the general disillusionmentand alienation that has swept East Germany since reunification.44 The second exception - Italy- is also to some degree explicable by the revulsion against official corruption andineffectiveness so widespread within the Italian mass public. Indeed-, perhaps the interestingpoint about the Italian figures is not that dissatisfaction is so high, which indeed it is comparedto the other countries of the EU, but that dissatisfaction is not higher - as surely it must bewith regard to other national political institutions in Italy.45

What can account for what we might generally term a 'positivity bias' in mass publicopinion? Certainly one possibility is that these institutions are indeed performing quite well,meeting the demands and expectations of ordinary citizens. Yet we doubt that most citizenshave sufficient information to evaluate public institutions in these terms. Rather we suspectthat, for many, the response to our measure of specific support is a generalized orientationtoward the institution, not unlike presidential or ministerial popularity. Despite a growingdisenchantment with politics and politicians, most people are favorably predisposed to supporttheir political institutions and, with even a little positive reinforcement (or in the absence ofsustained negative reinforcement), these orientations are fairly easy to sustain. We suspect thatunless citizens have a specific reason to assert dissatisfaction with the performance of theinstitution, they will emit positive responses. In this sense, dissatisfaction may well be a moreinformed position than satisfaction, and, from the point-of-view of the institution, may be morestable and threatening than satisfaction.

To be sure, the central focus of our research is not on judgments of the performance ofnational and transnational judicial institutions. Indeed, the sort of attitude in which we areprimarily interested is diffuse support - standing behind the institution even in the presence ofdissatisfaction with the immediate performance of the institution. Consequently, we turn now to thesemore basic commitments to the ECJ.Diffuse Support

Diffuse support, as we have said, is support for an institution even when it producesdisagreeable outputs. 'Support' includes the willingness to protect the institution against threatsto its basic structure and function. One such attack often leveled against courts is themanipulation and restriction of the jurisdiction of the institution, although the very existenceof courts is occasionally at stake as well.46

Are citizens of the European Union willing to support the European Court of Justice evenwhen it makes disagreeable decisions? Our earlier research suggests not: for most, disagreementwith the outputs of the institution readily translated into unwillingness to protect theinstitution against threats to its existence. But, as we noted above, our initial survey on massattitudes toward the European Court of Justice went into the field in the midst of the row overthe ratification of the Maastricht Treaty. Since the fall of 1992, passions have subsidedconsiderably, with even the Danes reconsidering their rejection of the treaty; and in fact thetreaty has become law. It therefore is quite reasonable to ask whether the wrangle overMaastricht contributed to an unusually low level of affect for the EC and its major judicialinstitution, the European Court of Justice.

Table 3 reports an index based on the responses to our two basic questions measuring

-10-

diffuse support for the European Court of Justice. The 1992 figures come from Eurobarometer38.0; the 1993 figures from Eurobarometer 40.0, conducted with full probability samples in allof the countries of the European Union in the fall of 1993. Following the methodology weemployed in our earlier analysis of the 1992 data,47 as well as the convention in analysis of theattitudes of the mass public,48 we have identified the segment of the EU mass public that hasat least some level of awareness of the European Court of Justice - the attentive public.49 Thepercentages of respondents in 1992 for whom it makes no sense to ask about their views of theCourt ranged from 55.3 percent in Portugal to 9.7 percent in Denmark. In 1993, these figuresranged from 59.4 percent (Italy) to 8.8 percent (Denmark). Comparison of these data for theattentive publics will allow us to determine whether there has been macro-level change inevaluations of the Court of Justice.

[PLACE TABLE 3 ABOUT HERE]Table 3 reveals a quite mixed pattern of change. In eight of the countries, the difference

between the mean responses in 1992 and 1993 is not statistically significant.50 For instance, themean of the index in France was 2.59 in 1992; in 1993, it was 2.55. In none of these countriesdoes the correlation between the year of the survey and attitudes toward the Court exceed .10.Only in Ireland is there any evidence whatsoever of an increase in support for the ECJ. This isperhaps because support was unusually depressed in 1992 by the fracas over the right of ayoung Irish girl to travel to Britain to obtain an abortion.51 Note, however, that the properconclusion from a statistical point-of-view is that Irish opinion did not change between 1992 and1993. Unfortunately for the friends of the Court, there is no evidence in these data that thefury over the ratification of Maastricht temporarily depressed support for the high court in theseeight countries.

In six countries the difference between surveys is statistically significant — in Germany(both East and West), Greece, Italy, Northern Ireland, and The Netherlands, support for theCourt declined from 1992 to 1993. Except in Northern Ireland, the differences are not great; thestrongest correlation is -.15 in Italy.52 In Northern Ireland, support for the Court declined moresubstantially (r = -.20).53 Thus, these data point to declining mass legitimacy for the EuropeanCourt of Justice between 1992 and 1993 in nearly half of the countries of the EU, and perhapsmost ominously, in Germany.

We are unable of course to judge whether support for the Court was higher or lower inthe period prior to Maastricht. Our data are compatible with the hypothesis that Maastricht had alasting impact on the views of the mass public toward EC institutions, but the available data do notpermit us to know if Maastricht brought about a change in opinions, or whether Maastrichtreflected a change in opinions that had occurred at some prior time.54 Without further data, wecan only conclude that attitudes toward the Court in the midst of the Maastricht battle differedlittle from attitudes somewhat after the row had subsided in about half of the EU, and declinedsignificantly (even if not substantially) in the other half.

Perhaps even more important, apart from the issue of change, support was not verywidespread in either year. Consider more closely The Netherlands, the most supportive countryin both years. In 1993, 38.8 percent of the respondents disagreed with the proposition that theCourt should be done away with if it started making a lot of decisions with which most peopledisagree, in contrast to 51.4 percent who were not supportive of the Court. This most favorable

-11-

distribution of opinion is quite dissimilar to the opinion in the least supportive country - inSpain, in 1993, fully 71.3 percent of the respondents would support the elimination of theEuropean Court of Justice if it makes disagreeable decisions (with only 17.5 percent supportingthe Court). Although there are vast differences of opinion among the mass publics in themember states of the European Union, the average opinion in most of the countries is on thenon-supportive side of the scale (i.e., less than 3.0 on the five-point scale). In general, then, thelevel of diffuse support for the Court is not very high. Dissatisfaction with the performance ofthe Court is relatively uncommon, but to the extent that citizens of the European Unionbecome dissatisfied, there is only a small reservoir of goodwill in the mass public with which theEuropean Court of Justice can protect itself.Micro-Level Change in Attitudes Toward the Court

The overwhelming conclusion from the macro-level analysis of change is one of relativestability in attitudes toward the European Court of Justice. On average, there is only slightly lesssupport for the Court in 1993 than there was in 1992. From the point-of-view of estimatinghow secure the Court is as a political institution, this is an important finding.

But aggregate stability does not necessarily mean micro-level stability, and indeedsubstantial change in individual attitudes is possible even when overall percentages and meansremain stable. The impression the data have created thus far is that people's attitudes towardthe Court are not changing significantly, or at least that they may not easily change. Thatimpression can only be confirmed with micro-level analysis of individual-level change. Turningnow to the panel data, we consider whether and how attitudes toward the Court changed from1992 to 1993.

Table 4 reports change at the level of the individual respondent. The means andstandard deviations are reported for a variable indicating the difference in the respondents'answers at the two points in time (based on the index of diffuse support). Negative scoresindicate less supportive attitude; positive scores, more supportive attitudes; and a mean of zero,no change. Also reported are the results of regressing diffuse support in 1993 on support in1992. For this portion of the analysis we analyze all respondents who were interviewed in both1992 and 1993.55

[PLACE TABLE 4 ABOUT HERE]It is clear from Table 4 that substantial instability characterizes the answers of the respondents.

The standard deviations on the simple change index are large, and the correlations betweenresponses 1992 and 1993 are rarely large (except perhaps in The Netherlands and GreatBritain).56 On the institutional support item, roughly one-quarter to one-third of therespondents gave the same answers during both interviews. Thus, the overall stability inaggregate opinion masks substantial micro-level change.

The nature of opinion change differs markedly across the countries of the EuropeanUnion. Consider the mean change scores in Table 4. In Greece, opinion toward the EuropeanCourt of Justice became considerably more favorable (mean = .41), with fully 50.6 percent ofthe respondents expressing more favorable opinions toward the Court in 1993 than in 1992,and only 23.4 percent giving less favorable opinions. In contrast, in West Germany, ChancellorKohl seemed to have an impact — change was generally unkind to the European Court of Justice(mean = -.19), with 42.5 percent of the respondents expressing less supportive views and only

-12-

29.8 percent expressing more favorable views. Finally, individual-level opinion change wasremarkably balanced in Luxembourg, Spain and East Germany. Quite different patterns maybe seen across the various nations.

Which is more important for the Court ~ the overall aggregate pattern of opinionstability, or the individual-level findings of considerable instability? Clearly, both are important.From the point-of-view of the European Court of Justice, the stability of its overall supportprovides the institution a stable political environment within which to function. At the sametime, the importance of the individual-level instability in attitudes is in the possibility of rapidopinion change, and especially change in the nature of the coalition most supportive of theCourt. This means that the Court may have some opportunity to build institutional supportthrough its decisions. On the other hand, to the extent that the opinions of individual citizensare relatively volatile, threats to the Court could fairly rapidly materialize as well. In sum, then,aggregate-level stability should not be taken to imply stability in individuals' opinions - supportfor the European Court of Justice can change rather rapidly.Cross-Institutional Analysis

We have suggested, based on the analysis thus far, that the European Court of Justice haslittle legitimacy. But compared to what? Without data on mass assessments of other institutionsit is difficult to place these findings in perspective. It is useful, therefore, to engage in a bit ofcross-institutional analysis.

Analysts often assume that there are two primary sources of legitimacy for the EuropeanUnion. The first is the European Parliament.57 A commonly proposed solution to the'democracy deficit' is to make EU institutions more accountable to the Parliament, which ofcourse is now directly responsible to the people through regular elections. Thus, there have beenproposals - as yet unsuccessful" to require parliamentary confirmation of nominees to the highbench.58 The assumption of these proposals is that the European Parliament has a store oflegitimacy itself, and can transfer that legitimacy to other political institutions. This power iscommonly referred to as a 'legitimacy conferring capacity'.59 60

National political institutions constitute a second potential source of legitimacy forEuropean Union institutions. National governments, which are directly accountable to thepeople, are responsible for staffing the institutions of the European Union, including makingappointments to the European Court of Justice. Presumably, citizens unhappy with theperformance of European Union institutions can make their unhappiness known to theirgovernments. Thus, legitimacy may be transferred from the member states to EU institutions.

In the case of courts, the national judiciaries may play a terribly important role inlegitimizing the Court of Justice.61 As Weiler62 has noted, 'Viewed from the perspective ofcompliance [and hence of legitimacy] it makes all the difference that it is a nauonal court, evena 'lower' (or 'lowly' one), and not the European Court of Justice itself which seeks thePreliminary Reference, awaits the Preliminary Ruling and then uses it in its domestic finaldecision'.63 In a sense, then, the national courts, in cooperating in the making and applicationof European law, transfer some of their own legitimacy to the European Court of Justice, or atleast the European Court of Justice derives support from the (presumably) legitimate nationalhigh courts. Thus, the European Court of Justice may be dependent upon other institutions forits legitimacy.

-13-

Why, then, is the legitimacy of the European Court of Justice so limited? There are twopossibilities. First, the assumed transfer of legitimacy may not be successful. Second, the otherinstitutions themselves may suffer from their own shortfalls of legitimacy. If the Europeanparliament or the national high courts have little legitimacy themselves, then it is unlikely theycan do much to enhance the authority of the European Court of Justice. Thus, although we fullyrecognize the limits of cross-sectional analysis to address what is inherently a longitudinalprocess, we now consider the levels of support among the mass public for the EuropeanParliament and for the national high court.64

Table 5 reports the means of the diffuse support indices for the European Court ofJustice, the European Parliament, and the national high courts. As before, higher scores indicategreater support for the institution. Also reported are the probabilities associated with adifference of means test, eta, the curvilinear correlation coefficient, and R2 from regressionsusing institutional dummy variables.

[PLACE TABLE 5 ABOUT HERE]One simplifying and elucidating statistical test is to evaluate the differences in the mean

response to each of the institutions, under the null hypotheses that the means of the threesupport scores are equivalent - i.e., that they do differ beyond what might be attributable tosampling variation. Applying this test to each set of institutions reveals that in five of thecountries in Table 5 (and possibly France as well) there are significant differences in attitudesacross institution.65 However, none of these differences is particularly large (perhaps excludingDenmark, where institution explains 14 percent of the variance). For instance, in the westernportion of Germany, support is highest for the Bundesverfassungsgericht, and the differencesacross the three institutions are statistically significant. Yet only 4 percent of the variance isexplained. Moreover, in Belgium, Italy, Spain, Ireland, Luxembourg, Portugal, and the easternportion of Germany, the level of diffuse support expressed is indistinguishable acrossinstitutions. To be sure, the mean support score for the European Court of Justice is typicallythe lowest (except in Spain, The Netherlands, and Great Britain), but generally it is remarkablethat attitudes toward the European Court of Justice are not more distinguishable from attitudestoward the other institutions.

This conclusion is brought even more strongly home by the coefficients reported in Table6. The dependent variable there is the average diffuse support score for the European Court ofJustice. The independent variables are dummy variables (dichotomies) representing first thenational high court and then the European parliament. The statistics reported are the overallgoodness of fit of the equation (R2), which is an indication of the degree to which attitudestoward the three institutions are distinctive, and probabilities from a student's t test of the nullhypothesis that attitudes toward the national high court and the parliament differ fromattitudes toward the Court of Justice.

[PLACE TABLE 6 ABOUT HERE]In nearly all of the countries, there is remarkably little dependence of attitudes toward the ECJ upon

attitudes toward the other institution. Only in Denmark, Great Britain, and (perhaps) West Ger-many are there similarities of any magnitude in supportive attitudes for the three institutions.Perhaps most interestingly, there is not a single country in which average support for theEuropean Court of Justice is associated with support for the European Parliament. This finding

-14-

means that the European Parliament does not nave a legitimacy surplus it shares with the European Courtof Justice. In fact, in most countries, the European Parliament has its own legitimacy shortfall -there is little legitimacy-conferring capacity of the European Parliament.

In many countries - Belgium, Italy, Spain, Ireland, Portugal, and East Germany (andprobably France and Luxembourg as well) - support for the national high court is unrelated tosupport for the European Court of Justice. Thus, the Court of Justice does not derive legitimacyfrom the national judiciaries in these countries. For instance, in Belgium, 50.3 percent of therespondents express low support for the European Court of Justice on the institutionalcommitment item, but so too do 43.1 percent express low support for the Belgian Cour deCassation (Hof van Cassatie). The difference between the two percentages is too small tosustain the hypothesis that the Cour de Cassation has a legitimacy surplus it can somehowtransfer to the European Court of Justice.

Only in Denmark, West Germany, Greece, The Netherlands, and Great Britain is thereclearly a greater supply of legitimacy in the national high court than in the European Court ofJustice. For instance, in Denmark, 46.7 percent of the respondents expressed low institutionalcommitment for the Court of Justice, but only 22.4 percent expressed low support for theHtijesteret. A difference of this magnitude suggests there is indeed more support for the Danishhigh court even if there is little evidence that the legitimacy of the national judiciary has beentransferred to the Court of Justice.

These findings can be summarized quite simply. We have discovered no evidence in anyof the countries that the European Parliament has a surplus of mass legitimacy that it cantransfer to the European Court of Justice. Nor do the national high courts possess a repositoryof legitimacy in most of the member states of the European Union. In a minority of states,however, and especially in Denmark, West Germany, and Great Britain, the national highcourts do have a store of support available. We find little evidence, however, of an actualtransfer of legitimacy to the European Court of Justice.

Summary and Concluding Remarks' We have focused in this analysis on four questions:

How much support does the European Court of Justice currently enjoy?Our data indicate that although most citizens of the European Union are reasonably

satisfied with the performance of the Court, diffuse support for the institution is notwidespread. Among those who know enough to form an opinion on the Court's activities, thereis considerable satisfaction with the performance of the Court. Yet, for most people, this specificsupport has not been transformed into diffuse support. The implication of this is that the Courtwill generate support from its constituents only to the extent that its decisions are pleasing. Tothe extent the European Court of Justice is required to make a series of controversial decisionsthat attract the attention of the mass public, it may well find itself with only a small reservoirof good will within the mass public.

Are our earlier findings on levels of support for the Court of Justice unrepresentative because thesurvey was conducted at the height of the controversy over Maastricht?We have discovered that Maastricht did not abnormally depress support for the Court

of Justice and that, although generally opinion has been relatively stable, if anything, support

-15-

has eroded since the crest of the Maastricht row. Without sustained, longitudinal analysis, itis impossible to judge whether there is a trend toward further declines in support for the Court.At present, however, there is no evidence whatsoever that the Court has rebounded from anunusually low level of support in 1992.

How stable are attitudes toward the European Court of Justice?We find evidence that opinion is in the aggregate fairly stable. In fact, however, most

people seem not to hold settled attitudes toward the Court. This is further testament to thelow institutional legitimacy of the Court. Opinions change in part due to whether recentinformation about the Court has been favorable or unfavorable. This volatility is furtherevidence that the Court rests on a precarious bedrock of support. To the extent it performswell, support will be forthcoming. To the extent it becomes enmeshed in controversial legaldisputes, its support is certainly at risk. This volatility presents both opportunities andchallenges for the Court.

Can the European Court of Justice rely upon the European Parliament or the nationalhigh courts for legitimacy?Our data strongly indicate that the European Parliament has little legitimacy it can

share with the European Court of Justice. Furthermore, in several member-states, thenational high courts have no surplus of legitimacy either. And even where the nationalhigh courts are more legitimate than the European Court of Justice there is little evidencethat legitimacy has been or can be successfully transferred to the ECJ. The Court musttherefore rely upon other sources for its basic legitimacy.

Perhaps the most important question for the Court — and the question we cannot asyet answer — is how the store of legitimacy can be increased. Our own view is that thedecisions of the ECJ have often been to the great benefit of ordinary citizens of the EU, butthat the Court has been insufficiently attentive to the need to communicate directly with themass public, rather, being content to try to borrow legitimacy from other politicalinstitutions. Generally, those who know something about the Court, tend to view itfavorably. Diffuse support emerges primarily from the slow accretion of positive images ofinstitutions. Especially since the Court has the ability to associate itself with valued symbolssuch as justice, equality, and fairness, it cannot but profit from a careful effort to inform theEuropean mass public of its activities." Whatever the Court may do on this score, it is clearthat the days of the calculated anonymity for the institution have passed, that opinions willbe formed, and that the possibility exists for the Court to limit or erase its democraticdeficit.67

Many scholars and members of the Court recognize the treacherous waters the ECJ mustnavigate in the coming years. Thus, in a recent editorial, the editors of a prominent legaljournal remarked:

Of course, criticism of individual Court decisions is perfectly legitimate, also ona political level. Quite a different matter, however, is a more general attack onthe functioning of the Court, its methods of interpretation and the manner inwhich it finds the law. The political level is not the most appropriate one forsuch a debate. Governments have much to lose and little to gain from an exercisethat risks undermining the authority of the Court and puts into question its role

-16-

in European integration. The authority of the Court largely depends on thepersuasive character of its decisions and their motivation, but also on theperception of the national courts of its role and their acceptance of its case law.This is a delicate exercise in which the Court has succeeded fairly well up to now.National governments must think twice before taking steps that could disturbthe balance.... The Community has no police force to get the European court'sdecisions respected by and within Member States. The cooperation of nationalcourts is fundamental. In criticizing the Court, which of course is not forbidden,national governments should be well aware of the delicacy of the system.68

Whether the Court can build its institutional legitimacy at the very time at which it is comingunder increasing attack from national politicians is perhaps the most important question leftunanswered by our analysis to date.

-17-

Endnotes1. There is some ambiguity about what to call the nations of the EEC/EC/EU, given thechanges made in recent years by various treaties and the different communities (e.g., the Coaland Steel Community) organized for different purposes. During the time our surveys went intothe field, the union was named the 'European Community'. We tend to refer to the 'EuropeanCommunity' when discussing features of the survey, or earlier periods, but use 'European Union'when discussing current or future events. To make matters even more complicated, the ECJremains for official purposes the Court of Justices of the European Communities.

2. E.g., Richard C. Eichenberg, and Russell J. Dalton, 'Europeans and the EuropeanCommunity: The Dynamics of Public Support for European Integration', InternationalOrganization, 47 (1993), 507-534; and Matthew Gabel and Harvey D. Palmer, 'UnderstandingVariation in Public Support for European Integration', European Journal of Political Research, 27(1995), 3-19.

3. -E.g., Gregory A. Caldeira and James L. Gibson, "The Court of Justice in the European Union:Models of Diffuse Support', American Political Science Review, 89 (1995), 356-376; James L.Gibson and Gregory A. Caldeira, 'The Legitimacy of the Court of Justice in the EuropeanCommunity: Models of Institutional Support' (paper delivered at the Annual Meetings of theMidwest Political Science Association, Chicago, Illinois, 1993), 'The European Court of Justice:A Question of Legitimacy', Zeitschnft fur Rechtssoziologie, 14 (1993), 204-222, and 'TheLegitimacy of Transnational Legal Institutions: Compliance, Support, and the European Courtof Justice', American Journal ofPolitical Science, 39 (1995), 459-489; and Gregory A. Caldeira,James L. Gibson, and David E. Klein, 'The Visibility of the Court of Justice in the EuropeanUnion' (paper presented at the Annual Meetings of the American Political Science Association,Chicago, Illinois, 1995).

4. Caldeira and Gibson, 'The Court of Justice in the European Union: Models of DiffuseSupport'.

5. Gibson and Caldeira, 'The Legitimacy of Transnational Legal Institutions: Compliance,Support, and the European Court of Justice'.

6. Some refer to this as a 'democracy deficit' (e.g., Anne Marie Burley, 'Democracy and JudicialReview in the European Community', The University of Chicago Law Forum, (1992), 81-92); othersuse the phrase 'democratic deficit'. Irrespective of the term used, this describes a perceivedshortfall of accountability, transparency, and responsiveness in policy making by EU institutions.For one of the earliest references to the democratic deficit in the European Union, see David

-18-

Marquand, Parliament for Europe (London: Cape, 1979). (We are indebted to Mark Franklin forthis reference.)

7. We base this conceptualization on our earlier analysis of the legitimacy of the United StatesSupreme Court. See James L. Gibson, 'Understandings of Justice: Institutional Legitimacy,Procedural Justice, and Political Tolerance', Law & Society Review, 23 (1989), 469-496, and'Institutional Legitimacy, Procedural Justice, and Compliance with Supreme Court Decisions:A Question of Causality', Law & Society Review, 25 (1991), 631-636; Gregory A. Caldeira andJames L. Gibson, 'The Etiology of Public Support for the Supreme Court', American Journal ofPolitical Science, 36 (1992), 635-664; and James L. Gibson and Gregory A. Caldeira, 'Blacks andthe Supreme Court: Models of Diffuse Support'. Journal of Politics, 54 (1992), 1120-1145. Seealso Tom R. Tyier and Gregory Mitchell, 'Legitimacy and the Empowerment of DiscretionaryLegal Authority: The United States Supreme Court and Abortion Rights', Duke Law Journal, 43(1994), 703-815, for a quite similar approach to the concept.

8. Rodney Barker, Political Legitimacy and the State (Oxford: Clarendon Press, 1990), p. 11.

9. Barker, Political Legitimacy and the State, p. 27.

10. Frands Fukuyama, The End of History', The National Interest, 16 (1989), 3-18, and The Endof History and the Last Man (New York: The Free Press, 1992).

11. Perhaps one of the most poignant examples of this can be found in the 1994 elections inSouth Africa. In mid-March, ordinary inmates within South Africa's prisons rioted, burning theircells, and in some instances killing fellow inmates. The cause of these riots was not prisonovercrowding, nor poor food nor inhumane treatment; nor were the riots due to gang warfare.Instead the prisoners of South Africa rioted for the right to vote in the April election. Theprisoners argued that the election of 26-28 April is a constitutive election, one giving birth toa new regime, forever relegating apartheid to the dustbin of history, and therefore that isessential that no South Africans be excluded from participation. Within relatively short order,the provisional ruling council agreed.

12. M. Stephen Weatherford, 'Measuring Political Legitimacy '.American Political Science Review,86(1992), 149-166.

13. Cf. Tom R. Tyier, Why People Follow the Law: Procedural Justice, Legitimacy, and Compliance(New Haven: Yale University Press, 1990), Tyier and Mitchell, 'Legitimacy and the

-19-

Empowerment of Discretionary Legal Authority: The United States Supreme Court andAbortion Rights'; E. Allan Lind and Tom R. Tyier, The Social Psychology of Procedural Justice (NewYork: Plenum Press, 1988); Gibson, 'Understandings of Justice: Institutional Legitimacy,Procedural Justice, and Political Tolerance', and 'Institutional Legitimacy, Procedural Justice,and Compliance with Supreme Court Decisions: A Question of Causality'; Gibson and Caldeira,'The Legitimacy of Transnational Legal Institutions: Compliance, Support, and the EuropeanCourt of Justice'; Tom R. Tyier and Kenneth Rasinski, 'Legitimacy and Acceptance of UnpopularU.S. Supreme Court Decisions: A Reply to Gibson', Law &. Society Review, 25 (1991), 621-630;and Kenneth Rasinski, Tom Tyier, and Kim Fridkin, 'Exploring the Function of Legitimacy:Mediating Effects of Personal and Institutional Legitimacy on Leadership Endorsement andSystem Support', Journal of Personality and Social Psychology, 49 (1985), 386-394.

14. Cf. Alan Hyde, 'The Concept of Legitimation in the Sociology of Law', Wisconsin LawReview, (1983), 379-426; and David W. Adamany, 'Legitimacy, Realigning Elections, and theSupreme Court', Wisconsin Law Review, (1973), 790-846.

15*Bavid Easton,A Systems Analysis of Political Life (New York: John Wiley, 1965), and 'A Re-Assessment of the Concept of Political Support', British Journal of Political Science, 5 (1975), 435-457.

16. Gerhard Loewenberg and Samuel C. Patterson, Comparing Legislatures (Boston: Little,Brown, 1979), p. 285.

17. See also Michael L. Mezey, Comparative Legislatures (Durham, NC: Duke University Press,1979), pp. 30-31.

18. Scholars have divided on whether it is possible to distinguish conceptually and/or empiricallybetween diffuse and specific support in the fashion Easton envisioned. On the inability to makethis distinction, see, for example, Ronald Rogowski, Rational Legitimacy (Princeton: PrincetonUniversity Press, 1974); Loewenberg, 'The Influence of Parliamentary Behavior on RegimeStability'; and Allan Kornberg and Harold Clarke, Citizens and Community: Political Support in aRepresentative Democracy (New York: Cambridge University Press, 1992). For some scholars whohave made this distinction, with varying degrees of success, see, for examples, Walter F. Murphyand Joseph Tanenhaus, 'Public Opinion and the United States Supreme Court: A PreliminaryMapping of Some Prerequisites for Court Legitimation of Regime Changes', Law &. SocietyReview, 1 (1968), 357-382; Caldeira and Gibson, 'The Etiology of Public Support for theSupreme Court', and 'The Court of Justice in the European Union: Models of Diffuse Support';and Patterson, Boynton, and Hedlund, Representatives and Represented: Bases of Public Support forthe American Legislatures. Note that as an empirical matter, in the analysis reported below,

-20-

specific and diffuse support are not strongly related.

19. Caldeira and Gibson, The Court of Justice in the European Union: Models of DiffuseSupport', and 'The Etiology of Public Support for the Supreme Court"; and Gibson andCaldeira, 'Blacks and the Supreme Court: Models of Diffuse Support', and 'The Legitimacy ofTransnational Legal Institutions: Compliance, Support, and the European Court of Justice'.

20. E.g., Gerhard Loewenberg, "The Influence of Parliamentary Behavior on Regime Stability',Comparative Politics, 3 (1971), 177-200; Samuel C. Patterson, Ronald D. Hedlund, and G. RBoynton, Representatives and Represented: Bases of Public Support/or the American Legislatures (NewYork: Wiley, 1975); Easton, A Systems Analysis a/Political Life, and 'A Re-Assessment of theConcept of Political Support'; and Walter F. Murphy and Joseph Tanenhaus, 'Publicity, PublicOpinion, and the Court', Northwestern University Law Review, 84 (1990), 985-1023.

21. Leon N. Lindberg and Stuart A. Scheingold, Europe's Would-Be Polity: Patterns of Change inthe European Community (Englewood Cliffs, NJ: Prentice-Hall, 1970).

22. For analyses of the problems of Maastricht see Fabio Luca Cavazza and Carol Pelanda,'Maastricht: Before, During, After', Daedalus, 123 (1994), 228-238; Kevin Featherstone, 'JeanMonnet and the 'Democratic Deficit' in the European Union', Journal of Common Market Studies,32 (1994), 149-170; Karen Siune and Palle Svensson, 'The Danes and the Maastricht Treaty:The Danish EC Referendum of June 1992', Electoral Studies, 12 (1993), 99-111; Byron Criddle,'The French Referendum on the Maastricht Treaty', Parliamentary Affairs, 46 (1993), 228-238;and Mark Franklin, Michael Marsh, and Lauren McLaren, 'Uncorking the Bottle: PopularOpposition to European Unification in the Wake of Maastricht', Journal of Common MarketStudies, 32 (1994), 455-472.

23. For an excellent analysis of the impact of Maastricht on the French see David R. Cameron,'National Interest, European Identity, and the Dilemmas of Integration: France and the UnionAfter Maastricht' (paper delivered at the 1995 Annual Meetings of the American PoliticalScience Association, Chicago, Illinois).

24. See Walter Goldstein, 'Europe After Maastricht', Foreign Affairs, 72 (1992). 117-132;Franklin, Marsh, and McLaren, 'Uncorking the Bottle: Popular Opposition to EuropeanUnification in the Wake of Maastricht'; and generally Neil Nugent, Tfie Government and Politicsof the European Union, 4th edition (Durham, NC: Duke University Press, 1994), pp. 63-64.

-21-

25. Shirley Williams, 'Sovereignty and Accountability in the European Community', PoliticalQuarterly, 61 (1990), 299-317; Brigitte Boyce, 'The Democratic Deficit of the EuropeanCommunity', Parliamentary Affairs, 46 (1993), 458-477; Egon A. Klepsch, 'The DemocraticDimension of European Integration', Government and Opposition, 27 (1992), 407-432; JulietLodge, 'Democratic Legitimacy and European Union', Public Policy and Administration, 6 (1991),21-29; Hjalte Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Studyin judicial Policy-Making (Boston: Martinus Nijhoff Publishers, 1986), 'Between Self-Restraintand Activism: A Judicial Policy for the European Court', European Law Review, 13 (1988), 28-38,and 'Towards a Normative Theory of Interpretation of Community Law', University a/ChicagoLaw Forum, (1992), 135-178; Mauro Cappelletti, 'Is the European Court of Justice RunningWild?' European Law Review, 12 (1987), 3-17; Joseph H. H. Weiler, 'After Maastricht:Community Legitimacy in Post-1992 Europe', in William James Adams (editor), Singular Europe:Economy and Polity of the European Community After 1992 (Ann Arbor: University of MichiganPress, 1993), pp. 11-41; and Burley, 'Democracy and Judicial Review in the EuropeanCommunity'.

26. Cf. Franklin, Marsh, and McLaren, 'Uncorking the Bottle: Popular Opposition to EuropeanUnification in the Wake of Maastricht'.

27. E.g., Gregory A. Caldeira, 'Neither the Purse Nor the Sword: Dynamics of PublicConfidence in the U.S. Supreme Court'. American Political Science Review, 80 (1986), 1209-1226.

28. E.g., Martin Shapiro, 'The European Court of Justice', in Alberta M. Sbragia (ed.), Euro-Politics: Institutions and Policymaking in the 'New'European Community (Washington: The BrookingsInstitution, 1992), pp. 123-156; Geoffrey Garrett and Barry Weingast, 'Ideas, Interests, andInstitutions: Constructing the European Community's Internal Market', in Judith Goldstein andRobert Keohane (eds.). Ideas and Foreign Policy (Ithaca: Cornell University Press, 1993); AnneMarie Burley and Walter Mattii, 'Europe Before the Court', International Organization, 47 (1993),41-76; Trevor C. Hartley, 'Federalism, Courts, and Legal Systems: The Emerging Constitutionof the European Community', American Journal of Comparative Law, 34 (1986), 229-248, and TheFoundations of European Community Law, 3rd edition (Oxford: Clarendon Press, 1994); L. NevilleBrown and Tom Kennedy, The Court of Justice of the European Communities, 4th edition (London:Sweet and Maxwell, 1994); D. Lasok and J. W. Bridge, Law and Institutions of the EuropeanCommunities, 5th edition (London: Butterworths, 1991); Mary L. Volcansek, 'The EuropeanCourt of Justice: Supranational Policymaking', West European Politics, 15 (1992), 109-121; andRasmussen, On Law and Policy in the European Court of Justice: A Comparative Study of JudicialPolicymaking.

29. T. Koopmans, 'The Role of Law in the Next Stage of European Integration', Internationaland Comparative Law Quarterly, 34 (1986), 925-931; G. Federico Mancini, 'The Making of a

-22-

Constitution for Europe', Common Market Law Review, 26 (1989), 595-614; Koen Lenaerts,'Constitutionalism and the Many Faces of Federalism', American Journal of Comparative Law, 38(1990), 205-263; and Joseph H. H. Weiler, The Transformation of Europe', Yale Law Journal,100 (1991), 2403-2483, 'After Maastricht: Community Legitimacy in Post-1992 Europe', and'A Journey to an Unknown Destination: A Retrospective and Prospective of the European Courtof Justice in the Area of Political Integration', Journal of Common Market Studies, 31(1993), 417-446.

30. Joseph H. H. Weiler, 'A Journey to an Unknown Destination: A Retrospective andProspective of the European Court of Justice in the Area of Political Integration', and 'A QuietRevolution: The European Court of Justice and Its Interlocutors', Comparative Political Studies,26 (1994), 510-534.

31. John C. Wahike, 'Policy Demands and System Support: The Role of the Represented',British Journal of Political Science, 1 (1971), 71-90.

32. Europe 14. 10.92 No. 5835. In addition to the article published in the Frankfurter Rundschauof 7 December 1992, see 'Die Europa-Richter stellen das deutsche Betriebsverfassungsgesetz aufden Kopf, Handelsblatt, 13 October 1992; 'Die Leise Ubermacht', Der Spiegel, 30 November1992 (signed by the Minister for Social Affairs, Norbert Blum), p. 102; and 'Dem EuGH auf dieFinger Geschaut', E G Magazin, No 5, 1993 (signed by P. Clever, see n 29). Threateningallusions to the Court were also uttered by Chancellor Kohl in his speech to the Bundestag of4 December 1992 (Bulletin No 130/s, p 1193).

33. G. Federico Mancini and David T. Keeling, 'Democracy and the European Court of Justice',The Modem Law Review, 57 (1994), 175-190.

34. The Court also expressed concern for its institutional legitimacy in its 'Report of the Courtof Justice on Certain Aspects of the Application of the Treaty on European Union -Contribution of the Court of First Instance for the Purposes of the 1996 IntergovernmentalConference', a document published as part of its Proceedings (22-26 May, 1995, No. 15/95).

35. Caldeira and Gibson, 'The Etiology of Public Support for the Supreme Court'; Walter F.Murphy, Joseph Tanenhaus, and Daniel Kastner, Public Evaluations of Constitutional Courts:Alternative Explanations (Beverly Hills: Sage Publications, 1973); and Murphy and Tanenhaus,'Publicity, Public Opinion, and the Court'.

-23-

36. E.g., Joseph H.H. Weiler, 'A Quiet Revolution: The European Court of Justice and ItsInterlocutors', Comparative Political Studies, 26 (1994), 510-534.

37. Weiler, 'A Journey to an Unknown Destination: A Retrospective and Prospective of theEuropean Court of Justice in the Area of Political Integration'; Burley and Mattii, 'Europe Beforethe Court'; and Garrett and Weingast, 'Ideas, Interests, and Institutions: Constructing theEuropean Community's Internal Market'.

38. Weiler ('A Journey to an Unknown Destination: A Retrospective and Prospective of theEuropean Court of Justice in the Area of Political Integration', p. 430) makes a similar argument,noting that 'even some of the early cases - such as Costa v ENEL which introduced supremacyin 1964 - were socially sensitive'. He also argues that there has been *a growth in the numberof cases before the Court which are of a character to capture media and public attention' (p.440).

39rMuch of the concern is now focused on the 1996 IGC, and includes academic papers andcommentaries, debates in the European Parliament, and considerable attention from the massmedia in Europe.

40. Over time, the European Parliament has repeatedly clamored for more influenceover the selection of ECJ judges. For instance, a 1982 resolution of the EP expressed the viewthat the parliament should be involved in the appointment of ECJ members, one version ofwhich would be confirmation. The EP in its draft of the TEU (1984) suggested that half of themembers of ECJ should be appointed by the EP and half by the Council. In 1993, the EP'sRothley Report endorsed the proposal that judges should be elected by the EP and the Councilfor non-renewable terms. See Brown and Kennedy, The Court of Justice of the European Communities,pp. 45-46; and Mancini and Keeling, 'Democracy and the European Court of Justice'.

41. Jacques Delors made this argument in a speech before the 2nd ECSA World Conference on'Federalism, Subsidiarity and Democracy,' Brussels, 5-6 May, 1994. Burley argues ('Democracyand Judicial Review in the European Community', pp. 81-82): 'In a Community with superficialequivalents to a national executive, legislature, and judiciary, enhanced'democracy' has, notsurprisingly, tended to focus attention on enhancing the powers of the European Parliament.As the seat of the elected representatives of Community citizens, the logic runs, strengtheningthe Parliament's voice in the Community legislative process will strengthen the voice of thepeople'. See also Lenaerts, 'Some Reflections on the Separation of Powers in the EuropeanCommunity'; Juliet Lodge, 'Transparency and Democratic Legitimacy', Journal of Common MarketStudies, 32 (1994), 343-368; Featherstone, 'Jean Monnet and the 'Democratic Deficit' in theEuropean Union'; and Shirley Williams, 'Sovereignty and Accountability in the European

-24-

Community'.

42. See generally, Mauro Cappelletti, The Judicial Process in Comparative Perspective (Oxford:Clarendon Press, 1989); C. Neal Tate and Torbjom Vallinder (eds.). The Global Expansion ofJudicial Power (New York: New York University Press, 1994); Volcansek, "The European Courtof Justice: Supranational Policymaking'; C. Neal Tate, 'Judicial Institutions in Cross-NationalPerspective: Toward Integrating Courts into the Comparative Study of Polities', in John R.Schmidhauser (ed.), Comparative Judicial Systems (London: Butterworth's, 1987); Martin Shapiroand Alee Stone, Special Issue of Comparative Political Studies, Shapiro and Stone 1994, and theSpecial Issue of West European Politics (July 1992) devoted to courts in Western Europe -'Judicial Politics and Policy-Making in Western Europe'.

43. We think of specific support simply as satisfaction with the contemporary outputs of theinstitution. Thus, we see it as entirely comparable to the popularity of a president or primeminister. It need not be based on much information; nor are such judgments likely to be verystable.

44. See, for examples, Michael Minkenberg, 'The Wall after the Wall: On the ContinuingDivision of Germany and the Remaking of Political Culture', Comparative Politics, 26 (1993), 53-68; Manfred Kuechler, 'The Road to German Unity: Mass Sentiment in East and WestGermany', Public Opinion Quarterly, 56 (1992), 53-76; James L. Gibson and Gregory A- Caldeira,'The Legal Cultures of a Reunited Germany: Findings from a Survey of the Mass Public'(unpublished manuscript, 1994); and Donald Kommers, 'The Federal Constitutional Court inthe Germany Political System', Comparative Political Studies, 26 (1994), 470-491.

45. Maria Elisabetta de Franciscis and Rosella Zannini, 'Judicial Policy-Making in Italy: TheConstitutional Court', West European Politics, 15 (1992), 68-79; see also Mary Volcansek,'Political Power and Judicial Review in Italy', Comparative Political Studies, 26 (1994), 492-509,and 'Impact of Judicial Policies in the European Community: The Italian Constitutional Courtand European Community Law', Western Political Quarterly, 42 (1989), 569-585.

46. The most obvious example is the attack of President Roosevelt on the composition of theU.S. Supreme Court in the 1930s (e.g., Gregory A. Caldeira, 'Public Opinion and the SupremeCourt: FDR's Court-Packing Plan', American Political Science Review, 81 (1987), 1139-1154).From time to time, of course, the jurisdiction of the Court has come under attack by those dis-satisfied by the Court's rulings - as, for example, during the period of McCarthyism (see WalterF. Murphy, Congress and the Court (Chicago: University of Chicago Press, 1962); and C. HermanPritchett, Congress Versus the Court (Minneapolis: University of Minnesota Press, 1961). On therole of legitimacy in insulating the Philippine Supreme Court from attacks by Marcos, see C.

-25-

Neal Tate, The Judicialization of Politics in the Philippines and Southeast Asia', InternationalPolitical Science Review, 14 (1994), 187-197. Stripping jurisdiction, or withholding jurisdiction,is a typical way by which regimes limit the role of courts (see Martin Shapiro, Courts: AComparative and Political Analysis (Chicago: University of Chicago Press, 1980). And, of course,the Maastricht Treaty stripped the ECJ of some of its jurisdiction. See Burley andMattIi,'Europe Before the Court'.

47. E.g., Caldeira and Gibson, The Court of Justice in the European Union: Models of DiffuseSupport'.

48. E.g., Murphy and Tanenhaus, 'Publicity, Public Opinion, and the Court'.

49. So as to make the 1992 and 1993 data strictly comparable we have deviated slightly fromthe specific method we employed in 1992. In this analysis, we define the Court's attentive publicas those who a) claim at least some level of awareness of the European Court of Justice, and b)gave substantive (i.e., not 'don't know' or'uncertain') answers to at least one of our measures of diffuse support for the European Courtof Justice. This method very closely approximates the figures reported in Table 2 in Caldeira andGibson, The Court of Justice in the European Union: Models of Diffuse Support', p. 362). Inthat analysis, a three-item index of support for the European Court of Justice was used andhence the definition of the attentive public segment of the sample required substantive repliesto all three of the items.

50. Since we are analyzing a large of cases within each country, we deem differences that wouldoccur by chance less than one time out of a thousand as statistically significant.

51. Cf. Brian Girvin, 'Moral Politics and the Irish Abortion Referendums 1992', ParliamentaryAffairs, 47 (1994), 203-221.

52. On the first item in the index, 35.6 percent of the Italian attentive public gave answerssupportive of the Court, a figure which declined to 26.7 percent in 1993.

53. On the first item in the index, support declined from 22.5 percent to 15.4 percent.

-26-

54. For example, Cameron, 'National Interest, European Identity, and the Dilemmas ofIntegration: France and the Union After Maastricht', notes that opinion in France shifted againstthe EU well before the Maastricht crisis.

55. That is, for this and the subsequent analyses we rely on the entire panel data set, not justthe attentive public. We have adopted this strategy for several reasons, some theoretical, otherspractical. Note that by 1993, all respondents had been exposed to information about theEuropean Court of Justice, if through no other vehicle than the interview in 1992. Thus, it couldnot be said that the lack of an opinion toward the Court was a function of not even knowingthat the institution existed. Furthermore, since some of the panel samples are relatively small,to exclude respondents on the basis of their lack of claimed awareness would reduce the effectivesample sizes considerably. As a practical matter, the analysis of cross-institutional differences insupport becomes intractable if the data must be screened for awareness of each institution. Forthe analysis of individual-level stability presented below, we added a control variable for thedegree to which the respondent had formed an opinion about the Court. The inclusion of thatvariable resulted in trivial changes in the analysis in nearly every country. To the extent that ourfindings are biased because of this methodological decision, it is probably in the direction ofover-estimating stability (because the respondents with no opinion of the Court in 1992 and1993 will appear to be stable). Finally, it should be noted that 61.5 percent of those claimingnot to be aware of the Court in 1992, claimed some level of awareness in 1993, and that ofthose claiming no awareness in 1993,53.6 percent claimed some level of awareness of the Courtin 1992. Clearly, it is not a simple matter to construct an attentive public subsample of the paneldata.

56. Note that ordinary measurement error artificially deflates these correlations. Markus notes:'... the OLS estimate will be biased toward zero by an amount directly proportional to the degreeof unreliability in the regressor'. Gregory Markus, Analyzing Panel Data (Beverly Hills: SageUniversity Papers on Quantitative Applications in the Social Sciences, 07-18,1979, p. 55).

57. See footnote 41. For examples of those who are not sanguine about the ability of theEuropean Parliament to legitimize the European Union see Williams, 'Sovereignty andAccountability in the European Community'; and Lodge, 'Democratic Legitimacy and EuropeanUnion'. For a complete analysis of the democratic deficit in the EP see Cees van der Eijk, MarkN. Franklin, et al.. Choosing Europe? The European Electorate and National Politics in the Face ofUnion (Ann Arbor: University of Michigan Press, 1996).

58. See footnote 40.

-27-

59. Cf. Jeffrey Mondak, 'Perceived Legitimacy of Supreme Court Decisions: Three Functionsof Source Credibility', Political Behavior, 12 (1990), 363-384. 'Substantive and ProceduralAspects of Supreme Court Decisions as Determinants of Institutional Approval', American PoliticsQuarterly, 19 (1991), 174-188, and 'Institutional Legitimacy, Policy Legitimacy, and theSupreme Court'', American Politics Quarterly, 20 (1992), 457-477; Robert A. Dahl, 'Decision-Making in a Democracy: The Supreme Court as a National Po\icymak.eT', Journal of Public Law,6 (1957), 279-295; Adamany, 'Legitimacy, Realigning Elections, and the Supreme Court'; andCharles H. Franklin and Liane C. Kosaki, 'Republican Schoolmaster: The U.S. Supreme Court,Public Opinion, and Abortion', American Political Science Review, 83 (1989), 751-771.

60. There are many who are critical of the ability of majoritarian institutions to legitimizedecisions of the state. For a recent discussion of this literature see Jack Knight and JamesJohnson, 'Aggregation and Deliberation: On the Possibility of Democratic Legitimacy', PoliticalTheory, 22 (1994), 277-296.

61. E.g., Imelda Maher, 'National Courts as European Community Courts', Legal Studies, 14(1994), 226-243.

62. Weiler, 'Journey to An Unknown Destination: A Retrospective and Prospective of theEuropean Court of Justice in the Area of Political Integration', p. 422.

63. See also Henry G. Schermers, 'The Scales in Balance: National Constitutional Court v.Court of Justice', Common Market Law Review, 27 (1990), 97-105.

64. For studies of support for parliaments in Central and Eastern Europe see William Mishlerand Richard Rose, 'Support for Parliaments and Regimes in the Transition Toward Democracyin Eastern Europe', Legislative Studies Quarterly, 19 (1994), 5-32; John R Hibbing and SamuelC. Patterson, 'Public Trust in the New Parliaments of Central and Eastern Europe', PoliticalStudies, 42 (1994), 570-592. On the U.S. Congress, see David Kimball and Samuel C.Patterson, 'Living Up to Expectations: Public Attitudes Toward Congress' (paper delivered atthe 1995 Annual Meetings of the American Political Science Association, Chicago, Illinois). Foran earlier study of attitudes toward the European Parliament see Oskar Niedermayer, 'PublicOpinion About the European Parliament', in Karlheinz Reif and Ronald Inglehan (eds.),Eurobarometer: The Dynamics of European Public Opinion: Essays in Honor of Jacaues-Rene Rabier(London: MacMillan Academic and Professional Ltd., 1991).

65. Due to the fairly large sample sizes, we employ a probability of .01 to indicate statisticalsignificance.

-28-

66. See Caldeira and Gibson, The Court of Justice in the European Union: Models of DiffuseSupport'.

67. Some commentators have already noted that the Court has become more cautious anddeferential in its decisions. See for example Editorial Comment, 'Quis Custodiet the EuropeanCourt of Justice?' Common Market Law Review, 30 (1993), 899-903; Editorial Comment,'Safeguarding the Union's Legal Order', Common Market Law Review, 31 (1994), 687-691; andNorbert Reich, The 'November Revolution' of the European Court of Justice: Keck, Meng, andAudi Revisited', Common Market Law Review. 31 (1994), 459-492.

68. Editorial Comment, 'Quis Custodiet the European Court of Justice?', pp. 900-901.

-29-

Table 1. The Salience of European Union Institutions, Spring 1993

Council Europeanof European European European Court of

Ministers Council Commission Parliament Justice

Note: Entries are percentage of all respondents who spontaneously mentioned the in-stitution. The countries are ranked according to the level of salience of theEuropean Court of Justice.

Table 2. Satisfaction with Judicial Decisions, European Court of Justice andNational High Courts, 1993

Level of Satisfaction

Not at Notall very Undecided Somewhat Very N Mean Std. Dev.

Table 2. (Continued)

Note: the question read:

Returning to the European Court of Justice for a moment, in general would you sayyou are very satisfied, somewhat satisfied, not very satisfied or not satisfied at all withthe way the Court of Justice has been working?

Now, returning to the (HIGHEST COURT OF YOUR COUNTRY), in general,would you say you are very satisfied, somewhat satisfied, not very satisfied or notsatisfied at all with the way the (HIGHEST COURT OF YOUR COUNTRY) has beenworking?

aCross-national differences, 1992: eta = .20, p < .0000.bCross-national differences, 1993: eta = .17, p < .0000.

*Cross-time differences (1992 -- 1993) significant at p < .001.

Note: The index is based on responses to the following items:

If the European Court of Justice started making a lot ofdecisions that most people disagree with, it might be betterto do away with [it] altogether.

The right of the European Court of Justice to decide certaintypes of controversial issues should be reduced.

Note: p = probability, based on a difference of means F testns = not statistically significant at .05.

eta = curvilinear correlation coefficientR2 = explained variance, regression with two dummy variables

Table 6. The Distinctiveness of Support for the European Court of Justice

Note: the dependent variable is average support for the European Court of Justice.

ON THE LEGITIMACY OF NATIONAL HIGH COURTS

James L. GibsonCullen Distinguished Professor

Department of Political ScienceUniversity of HoustonHouston, Texas 77204

Gregory A. CaldeiraProfessor

Department of Political ScienceOhio State University

Columbus, Ohio 43210

Vanessa BairdDepartment of Political Science

University of HoustonHouston, Texas 77204

Prepared for delivery at the 1997 Annual Meeting of the Midwest Political ScienceAssociation, April 10-12, 1997, Palmer House Hikon, Chicago, Illinois.

ON THE LEGITIMACY OF NATIONAL HIGH COURTS

James L. GibsonGregory A. Caldeira

Vanessa Baird

Despite decades of research on the legitimacy of courts, very little cross-national research hasbeen conducted. As a consequence of this parochialism, little is known about the generalizability ofextant findings. Worse, single-system research designs have impeded advances in solving some of themost pressing theoretical problems. Most importantly, we know little about how institutionallegitimacy is acquired and how it is expended.

The purpose of this research is to examine theories of diffuse support and institutionallegitimacy. In particular, we test hypotheses about the interrelationships among the salience ofcourts, satisfaction with court outputs, and diffuse support for the institutions. Like our predecessors,we are constrained by essentially cross-sectional data. But unlike earlier research, we analyze massattitudes toward high courts in eighteen countries, utilizing twenty mass public surveys conductedbetween 1993 and 1996. Because our sample includes many countries with newly formed highcourts, our cross-sectional data support several longitudinal inferences, using the age of the judicialinstitution as an independent variable. Moreover, with twenty data points, we are able to conductanalysis at both the macro and micro levels. Our most important findings are:

• The United States Supreme Court is not as unusual a high court as it is typically depicted.It is among the more salient and more legitimate high courts when compared to Europe, but it is byno means sui generis.

•National high courts vary enormously in the degree to which they have achieved institutionallegitimacy.

• Generally speaking, to be aware of a court is to be supportive of it. This "positivity bias"surely is associated with being exposed to the legitimizing symbols that all courts promulgate andmanipulate.

• The acquisition of support is clearly a dynamic process. Apparently, courts generate specificsupport by becoming salient, by making their policy making activity known to the mass public. Sincecourts often rule against the interests of political majorities, we suspect that support is built throughsatisfying successive political minorities over time.

• Satisfaction slowly evolves into institutional legitimacy, and the degree of connection be-tween specific and diffuse support is contingent upon the age of the institution. At the micro-level, thisfinding is compatible with the notion of a running tally; at the macro-level, it suggests that youngcourts can only acquire legitimacy by making known their decisions, and waiting.

• Finally, it may not be necessary for courts to satisfy the majority with any given decision.Though our evidence on this point is highly inferential, it seems that courts can build legitimacy bydeveloping support among successive minorities. To the extent that a national high court only appealsto a single constituency, it is unlikely that it will acquire legitimacy. But if different areas of policymaking please different constituents, then legitimacy is attainable. This strategy is only possible becauseof the strong "positivity bias" in how people react to the national high courts.

Acknowledgement

We are indebted to the (U. S.) National Science Foundation (SBR-9213905, SBR-9311397,SBR-9213201, and SBR-9312689) and the (German) von Humboldt Stiftung for major supportfor a portion of this project. We also acknowledge the support of the Limited-Grant-in-Aid Program(University of Houston). We arc indebted to Dominique Vancraeynest (Director ofINRA), AnnaMelich and Eric Marlier (both of the Eurobarometer) for their technical assistance. Without theextraordinary support and collaboration ofKarlheinz Reif (Director of the Eurobarometer) we couldnot have brought this project to fruition. None of these people nor any agencies bears anyresponsibility for the results or interpretations.

The paper also uses data from a collaborative project that grew out of the Law and SocietyAssociation's "Working Group on Orientations toward Law and Normative Ordering." Ellen S.Cohn, James L. Gibson, Susan 0. White, Joseph Sanders, Joan McCord, and Felice Levine wereresponsible for the development and implementation of the research design. Funding for the projectwas provided by the (U.S.) National Science Foundations (SES 92 13237 and SBR 93 11403) andthe National Council for Soviet and East European Research (#810-07). Our Europeancollaborators include Chancal Kourilsky-Augeven (France), Grazyna Skapska, Iwona Jakubowska-Branicka, and Maria Borucka-Arctowa (Poland), Andras Sajo (Hungary), Rosemary Barbaret(Spain), and Stefka Naoumova (Bulgaria). Gennady Denisovsky, Polina Kozyreva, and MikhailMatskovsky of the Institute of Sociology, Russian Academy of Sciences, were instrumental inconducting the Russian portion of the research. Another portion of the paper relies on data collectedwith support from the National Science Foundation (SES-9023565), die Advanced ResearchProgram (003652-164), the College of Social Sciences and the Limited-Grant-in-Aid program atthe University of Houston, and the USSR Academy of Sciences. Without our collaboration withGennady Denisovsky, Polina Kozyreva, and Mikhail Matskovsky of the Institute of Sociology, USSRAcademy of Sciences, this research would not have been possible. Gad Barzilay, Lawrence Baum,Erhard Blankenburg, Paul Brace, John Hibbing, and Melinda Hall made many useful comments onan earlier version of this paper. We assume complete responsibility for all interpretations andconclusions in this paper; none of these colleagues or agencies necessarily endorses our findings.

ON THE LEGITIMACY OF NATIONAL HIGH COURTS

James L. GibsonGregory A. Caldeira

Vanessa Baird

Perhaps the most neglected subfield within comparative politics is law and courts.

Despite impressive progress in understanding many aspects of cross-national

politics, we know precious little about the judicial and legal systems in countries outside the

United States.1 We understand little or nothing about the degree to which various judiciaries are

politicized; how judges make decisions; how, whether, and to what extent those decisions get

implemented; how ordinary citizens influence courts, if at all; or what impact courts have on

institutions and cultures. The degree to which the field of comparative politics has ignored courts

and law is as remarkable as it is regrettable.

Our ignorance is especially unfortunate since one of the most significant developments in

comparative politics is the growing influence of judicial institutions in national and international

politics. What Tate and Vallinder (1995a, 5) have called "the judicialization of politics" seems to

be a truly global phenomenon, and "may be or may become one of the most significant trends in

late-twentieth and early-twenty-first-century government." Though the United States seems to

have led the way in transforming political questions into legal questions, much the same is true in

countries as diverse as Russia (e.g., Kitchin 1995), Namibia (e.g., Steytler 1995), the Philippines

'For concurring assessments see Melone (1996, 231); Volcansek (1992); Shapiro (1993); andJacob et al. (1996). In his review of important research questions in the contemporary study ofcomparative politics, Rogowski (1993) fails to mention law and courts, let alone discuss the smallbody of relevant literature. The inattention to law and courts in comparative politics is the rulerather than the exception.

(e.g., Tate 1995b), the European Union (Weiler 1991), and Spain (Guarneri and Magalhaes

forthcoming).2 Nor does this trend toward greater judicialization show signs of abating any time

soon (Tate and Vallinder 1995b).

As courts move more squarely into the political limelight, a host of new and interesting

questions emerges. Among these is how courts relate to their constituents, especially their mass

publics. None of even the most powerful courts in the world have the power of the "purse" or die

power of the "sword"; with limited institutional resources, courts are therefore uncommonly

dependent upon the good-will of their constituents for both support and compliance. Indeed,

since judges often make decisions contrary to the preferences of political majorities, courts, more

than any other political institution, require a deep reservoir of good-will. Without institutional

legitimacy, courts find it difficult indeed to serve as effective and consequential partners in

governance.

One would find no quarrel from social scientists in the United States with the foregoing

sentiments. The Americans have long evidenced concern about the mass legitimacy of judicial

institutions, and a considerable volume of empirical work on mass attitudes toward U.S. courts

has been reported (see Caldeira 1991 for a recent review of the literature). But, outside the

United States, social scientists have devoted little or no attention to how ordinary people perceive

2 Even the growth of the power of transnational organizations such as die European Union mayactually enhance the power ofnational courts, since the European Court of Justice has fosteredEuropean law primarily through the national judiciaries (e.g., Weiler 1994). Regardinginstitutional legitimacy, Maher has argued that (1994, 234): "The national courts are essential tothe effectiveness of Community law, not only to bring Community rights to Community nationalsbut on the more fundamental level to lend legitimacy to the Community legal order."

and evaluate courts (but see Barzilai et al. 1994a, 1994b).3 Scholars often assume, for instance,

that the United States Supreme Court is one of the most revered (and unusual) courts in the

world, but no rigorous empirical evidence exists to support that claim. Even basic descriptive data

on mass attitudes toward courts outside the U. S. are severely lacking. This is a lacunae of

significant proportions for scholars of the judicial process.

Not only descriptive questions are at issue here. Virtually all theoretical work on the

legitimacy of judicial institutions has been confined to the American case. For instance, researchers

commonly observe in the United States that those who are more knowledgeable about law and

courts are more supportive of judicial institutions (e.g., Murphv and Tanenhaus 1990). Is this a

universal relationship; is it invariably the case that to know courts is to love them; or is it simply

that American courts are particularly lovable? How would the public have evaluated the Supreme

Court during tile early years of the Republic, when Jefferson and his colleagues did intense battle

with the institution? Would Germans citizens who knew much about the Nazis courts have loved

them as well? And what of Germans today—do they love the Bundesverfassungsgericht^ We have

virtually no idea whether the flock of important hypotheses generated by the American case has

any generalizability whatsoever.

Moreover, the most important question in legitimacy research—how institutions acquire

3A. quick review ofTate and Vallinder (1995a)—the most impressive collection of essays on judicialsystems around the world—reveals just how little attention has been devoted to the relationshipsbetween judicial institutions and their mass publics. In addition, Jacob et al. (1996) pay preciouslittle attention to this matter. For an exception, see Gibson and Caldeira, who have reported aseries of papers concerning the legitimacy of the most powerful transnational court in the world,the European Court of Justice. See Gibson and Caldeira (1995, 1997); and Caldeira and Gibson(1995).

and sustain legitimacy—has never been investigated in cross-national research.4 Due to the

inadequacy of existing data, we know little about the processes through which the accumulation

of satisfaction with institutional outputs gives rise to more sturdy and obdurate support. Nor do

we have solid theories or persuasive empirical tests of the processes that erode institutional

legitimacy. Certainly, contemporary cross-sectional analysis confined to one of the most powerful

and legitimate courts in the world (the United States Supreme Court) can tell us little about the

processes leading to the acquisition and maintenance of institutional legitimacy.

Consequently, our purpose here is to try to broaden the study of the relationships betweenJt-

courts and their publics by examining mass attitudes toward the legitimacy of national high courts,

mainly in Europe, East and West. Based on twenty surveys we conducted in eighteen countries in

the period 1993 through 1996, we begin the empirical portion of this paper by assessing the

salience of these institutions to their mass publics. We then investigate the degree of sup-

port—diffuse and specific—these courts enjoy. Next, we analyze the notable hypotheses that

greater awareness of institutions increases support for them, and that specific and diffuse support

are connected, but not too strongly. Finally, unlike all earlier researchers, we re-examine these

relationships at the macro-level in an effort to understand something of the longitudinal process

that creates institutional legitimacy. Though ours is not a longitudinal study, we are able to take

4In the late 1960s, Walter Murphy and Joseph Tancnhaus (with the help of a clutch ofcollaborators) sought to extend their studies of public support for die U.S. Supreme Court to otherpolities, including Ireland, West Germany, Argentina, Canada, and Australia (see Murphy,Tanenhaus, and Kastner 1973). This project failed for lack of funding. Murphy executed a surveyof elites in Ireland, and the Germans completed studies of both elite and mass opinion, but nothingcame of these studies.

4

advantage of a cross-section of courts that ranges from die newlv-minted institutions of Central

and Eastern Europe (including Russia) to the long-established courts of Great Britain, Belgium,

Denmark, The Netherlands, and the United States. With so much variability in the ages of these

institutions, our cross-sectional analysis can yield insights into the longitudinal processes leading

to the creation of institutional legitimacy. Before turning to the empirical portion of our work, we

must consider both extant theories of institutional legitimacy and prior empirical findings on the

origins of attitudes toward judicial institutions.

The Legitimacy of Judicial Institutions

By now, the theory of institutional support first outlined bv Easton (1965) and later

pursued by a small legion of judicial scholars is too well known to require a great deal of

exposition. We will therefore merely summarize existing theory.

• Courts in democratic polities are often called upon to make decisions contrary ro the

short-term preferences of the majority. As the umpires of the political process—often specifically

vested with the role of protecting the rights of minorities—courts cannot always rely upon the

goodwill of the majority for support for their decisions (e.g., Epp 1996).

• Nor do courts have the institutional resources (the powers of the purse and sword)

necessary for successful implementation of their decisions. Thus, courts arc uncommonly

dependent on voluntary compliance by those affected by judicial rulings (e.g., Gibson 1989; Tyicr

1990).

• All political institutions require a "reservoir of goodwill" (Easton 1965, 273; 1975; sec

5

also Murphy and Tanenhaus 1990, 991, 994) from their constituents if they are to make decisions

contrary to the preferences of the majority. Because courts often are called upon to make

unpopular decisions, they are especially dependent upon mass legitimacy for their effectiveness (cf.

Rosenberg 1991).

• Thus, it is especially important to assess whether courts enjoy this "reservoir of goodwill,"

under the hypothesis that support contributes to acquiescence to and compliance with court

decisions (cf. Gibson 1989; Tyier and MitcheU 1994; Gibson and Caldeira 1995).

These few propositions have sustained a fairly large body of literature, ranging from assess-

ments of levels of support for courts to tests of the support-compliance hypothesis. Although the

literature is too diverse to sustain the extraction of rigorous summary propositions,5 a few

conclusions emerge from extant research.

First, support for the United States Supreme Court is fairly widespread (Caldeira and

Gibson 1992; Gibson and Baird forthcoming). To be sure, public support oscillates a bit over time

(Caldeira 1986; Tanenhaus and Murphy 1981), but there can be little doubt that most Americans

judge the United States Supreme Court to be a largely legitimate institution.

Second, although support is relatively durable, it does change in the long-term, most likely

in response to change in the policy outputs of the Court (cf. Caldeira 1986). We find the clearest

support for this proposition in the evolution of the opinions of African Americans toward the

United States Supreme Court (Gibson and Caldeira 1992). After 1968, as the Supreme Court

5his diversity refers not only to research design (e.g., whether students or representative samplesof ordinary citizens are being studied), but also to such crucial issues as the ways in which keyconcepts (e.g., diffuse support) are operationalized.

6

resumed its customary position as a quite conservative policy-making institution, it appears that

black Americans became aware of this change and their support—even their diffuse support—for

the institution diminished over time.

Third, and following from the last point, diffuse and specific support are not entirely

disconnected (e.g., Adamany and Grossman 1983), at least when viewed from a longitudinal

perspective. If diffuse support cushions the impact of unpopular decisions (cf. Tyier 1990), then

diffuse support can be high when specific support (approval of policy outputs) is low. Diffuse

support may also be high when specific support is high, but, among newly-created institutions,

this is not necessarily so (i.e., diffuse support, because it has not yet had time to accumulate, can

be low even though specific support is high). And, of course, both specific and diffuse support can

be low. When the relationship between these two forms of support is examined cross-sectionally, it

is difficult to predict for any given institution whether they will be closely connected.6

For example, if time series data were available, we suspect that we would see many

different correlations between specific and diffuse support among African Americans over the

period 1968 to the present. We imagine that in 1968 specific and diffuse support were strongly

correlated—blacks were pleased with the institution and satisfied with its outputs. Over die next

decade or so, the correlation likely weakened as specific dissatisfaction built but only slowly

6For instance, Lau and Redlawsk (1996) report a correlation of the two concepts in the UnitedStates in 1980 of .52; Caldeira and Gibson, using 1987 data, report a correlation of .05; and Lauand Redlawsk (1996) claim a correlation of .34 in 1992. Indeed, in their causal analysis of the1992 data, they claim that diffuse support was negatively related to specific support, and stronglyso! Measurement difficulties are simply too severe to warrant drawing any substantive conclusionsabout the differences in these findings.

7

threatened institutional legitimacy. Indeed, at some point, the correlation mav have approached

zero. Today, the correlation mav be positive again—specific dissatisfaction has eroded diffuse

support, meaning that those who are dissatisfied do not support the institution. The strength of

the correlation between diffuse support and specific support largely depends on the point in the

longitudinal process at which we examine the relationship.

Fourth, generally speaking, to know something about courts is to be favorably oriented

toward them. This is, we think, one of the most interesting propositions in the literature. One of

the earliest bits of research on this question, Casey (1974, 409) found that respondents more

attentive to courts were more, not less, likely to subscribe to the mythology of judicial neutrality

and objectivity in decision making (see also Murphy and Tanenhaus 1968). Apparently, what

happens is this: ordinary people who know little about courts have few reasons to believe that

judges make decisions any differently than any other politicians. Those attentive to courts come to

adopt a different view, but not the view of the legal realists. Greater awareness is associated with

the perception that judges are different, that they rely on law not values in making decisions, that

they are objective. Greater awareness of the institution thus creates a less realistic view of die nature

of judicial policy making, a view that contributes mightily to the legitimacy of the institution.

How does this picture of judging get communicated to ordinary people; how might

citizens acquire this picture of judging?7 Here we can draw on recent scholarship on the dramatic

71n general, those who arc better educated and more interested in politics arc more aware ofpolitical institutions and arc more exposed to the political norms dominant in the system (cf. Zailer1992). On this view of the sources of attitudes, citizens develop positive views of national highcourt due to the supportive nature of "elite discourse" in the mass media and the like.

impact of "framing" on political and social attitudes (Nelson 1996, Nelson and Kinder 1996,

lyengar 1991). "Framing," according to the literature, "is the process by which a ... source ...

defines and constructs a political issue or public controversy" (Nelson 1997, 1). By framing an

issue in a certain fashion, an actor defines its causes and consequences and sets out the criteria for

evaluating the correctness of the solution (Nelson and Kinder 1996).

Perhaps citizens adopt an uncritical and unrealistic view because it is the view that judges

themselves promulgate. Courts and judges in civil law nations, even on high courts, seek to appear

to render formalistic opinions, relying heavily on symbols. Judges in the United States take great

pains, at-least in constitutional law, to frame decision-making as a process of deducing outcomes

from first principles—original intent, literal words, legal precedent, and so on (e.g., "The Bill of

Rights dictates our decision in this case"). Consider Justice Roberts' oft-cited characterization of

the role of the Court in constitutional interpretation:

When an act of Congress is appropriately challenged in the courts as not conform-

ing to the constitutional mandate, the judicial branch of the Government has only

one duty-to lay the article of the Constitution which is invoked beside the statute

which is challenged and to decide whether the latter squares with the former. The

only power it has, if such it may be called, is the power of judgment. The court

neither approves nor condemns any legislative policy. Its delicate and difficult

office is to ascertain and declare whether the legislation is in accordance with, or in

contravention of, the provisions of the Constitution; and, having done that, its

duty ends {United States v. Butler, 297 U.S. 1 (1936), at 62).

9

Or, again, consider Justice Scalia's statement, of more recent vintage: 'To hold a governmental act

to be unconstitutional is not to announce that we forbid it, but that the Constitution forbids it"

(American Trucking Association v. Smith, 110 LED. 2d 148, 1990, at 174). When ordinary people

hear judges of the nation's highest court frame their decisions in this fashion, they often believe

them. Simply put, to know courts is to love them, because to know them is to be exposed to a

series of legitimizing messages focused on the symbols of justice and judicial objectivity and impar-

tiality.

Finally, the slow accretion of positive messages about courts and law leads to legitimacy.

Though"only a single longitudinal studies has been conducted at the micro-level (Tanenhaus and

Murphy 1981), scholars nonetheless agree that diffuse support is an attitude-that evolves over

time. Pre-adult socialization most likely results in citizens being positively pre-disposed toward

courts and the legal system, since law is typically presented as a positive rather than negative

institution (Easton 1965, Easton and Dennis 1969; Caldeira 1977). The "crystallization" of

approving attitudes toward institutions probably results from a continuous stream of reinforcing

stimuli (cf. Jennings 1989). As citizens move from adolescence to adulthood, attitudes acquire

"affective mass," largely through learning and habituation. The young hold unstable attitudes

because their experiential base has not yet evolved . "Not yet having reaped the benefits of ex-

tensive reality testing, reassessment, reinforcement, and a growing familiarity with the political ter-

rain, the orientations of the young are especially susceptible to influence" (Jennings 1989, 315).

The acquisition of experience, reinforcement, etc., creates relative attitude stability among adults.

Taber, Glathar, and Lodge (1994, 9) refer to* this as the accumulation of a "running tally," an apt

10

term to describe the cumulative nature of diffuse support (see also Lodge and Taber 1996). As

Hibbing and Theiss-Morse put it (1995, 13): "Just as party identification has come to be viewed

by some as a 'running tally' (Fiorina, 1981) of favorable and unfavorable features people associate

with the parties, support for the political system should be viewed as a running tally of favorable

and unfavorable features people associate with the system."

This model most likely describes the process through which West Germans acquired deep

attachments to democratic values following World War II (e.g., Bovnton and Loewenberg 1973,

1974). In the immediate post-War period, democratic loyalties were assuredly anemic and, at best,

confined to relatively abstract attitudes. The process of crystallization had not yet occurred; nor

had a "running tally" accumulated in the minds of die German people. But as tile political system

succeeded, and succeeded repeatedly over time, commitments to democratic government became

more deep-seated. After about a generation of effectiveness and success, the political system could

afford to fail periodically, because it had acquired a reservoir of goodwill. Had the system failed

to produce—politically and economically—in the late 1940s or early 1950s, it is unlikely that the

German people would have been so forgiving. Thus, in the scheme of long-term change, the

development of diffuse support for an institution requires a long and relatively consistent stream

of satisfactory institutional outputs.

Unfortunately, thinking of diffuse support in this way renders it extremely resistant to

empirical investigation. Not only is a lengthy time series at the micro level necessary, but the

optimal time series must be concentrated in (or at least include) the period in which the institution

11

comes into existence.8 Tills means, of course, that countries like the United States are particularly

unrevealing when it comes to analyzing the origins of diffuse support.9 Scholars have made

creative efforts at longitudinal analysis within the United States (e.g., Tanenhaus and Murphy

1981; Caldeira 1987; Lau and Redlawsk 1996; Grosskopf 1996), but data limitations have

seriously hindered theoretical and empirical progress on this front.

Cross-national analysis is a viable alternative to a longitudinal research design, especially if

the sample of nations includes a heterogenous array of institutions—from the very old to the very

new. By examining attitudes toward a variety of institutions—some relatively new, some around

for only, a few generations, and some with clearly established mass legitimacy—we may be able to

derive some insight into the longitudinal processes involved in die development of diffuse support.

As we noted above, the nature of the connection between specific and diffuse support is heavily

contingent upon whether people already have established attitudes toward the institution or

whether the institution is relatively unknown. Longitudinal analysis is the most effective way of

assessing this relationship. But, since changes in the world have created a virtual laboratory for the

analysis of the evolution of diffuse support, cross-national research can make a noteworthy

contribution as well. That is our central purpose here.

8We note an important exception to this point: institutions that function for a long period of timein secrecy or anonymity but which then receive public scrutiny and thereby enter the public domain(e.g., the European Court of Justice). For analyses of diffuse support, the point at which theinstitution becomes salient to the mass public constitutes the point at which the institution is"created."

"Tor instance, it might be argued that the United States Supreme Court was an entirely legitimateinstitution at least as early as the 1930s (see Caldeira 1987), and probably much earlier.

12

Research Design

Our data come from two separate but related projects. The first study involved surveys in

each of the countries of the European Union in conjunction with research on mass attitudes

toward the European Court of Justice and the national high courts in the member states of the

European Union (see Gibson and Caldeira 1995, 1997, and Caldeira and Gibson 1995 for

substantive and methodological details on these surveys). The second set of surveys was

conducted in 1995 and 1996 in six European countries and the United States in connection with

a project on law, legal consciousness, and democratization.10 Representative samples of the mass

public were interviewed face-to-face in Bulgaria, Hungary, Poland, Russia, France, and Spain, and

by telephone in the United States. Non-institutionalized residents of each country 18 years old

and older were eligible to be interviewed. Technical details on the survey, sampling, etc. are

available from the authors." France and Spain were included in both of these projects, and hence

we have data on mass attitudes toward the French and Spanish high courts in both 1993 and

1995. Although these two projects had quite different purposes, the items measuring attitudes

toward national high courts are identical. Thus, although we must be mindful that the surveys

occurred at various times over the period from 1993 to 1995, in all important respects they are

comparable.

10The Russian and American surveys were conducted at the end of 1995 and the beginning of1996. Since such a small percentages of the respondents were interviewed in 1996, we refer tothese surveys as generally having taken place in 1995.

11For substantive analyses of these data see Gibson 1996, and Gibson and Sanders 1996.

13

National High Courts

Which institution constitutes the high court is not an entirely unambiguous question in

some of the countries.12 In France, the Constitutional Council exercises a form of judicial review,

but it is not a court; French courts cannot exercise judicial review (cf. Jacob et al. 1996, Stone

1993, Merryman et al. 1994). Nevertheless, we chose the Cour cie Cassation as our target because

we thought that some French respondents might not accept the designation of the Constitutional

Council as a court. In several of die countries (e.g., Germany, Greece, Portugal, Spain, and Italy),

two or more high courts divide the functions performed by the United States Supreme Court. For

most of these nations, we designated the constitutional court as the high court. In the remainder

of the nations, we have opted for the highest court exercising judicial review, or, in its absence, die

highest court exercising appellate review. These institutions are:

Belgium Hofvan Cassatie (Cour de Cassation)Bulgaria Constitutional CourtDenmark HojesteretFrance Cour de CassationGerman Federal Republic BundesverfassungsgerichtG reece Anotato Eidiko Dikaste rioHungary Hungarian Supreme CourtIreland Supreme Court of Ireland (Chuirt Uachtarach}Italy Corte ConstituzionaleLuxembourg Cour Supeneure de JusticeThe Netherlands De Hoge Raad der NederlandenPoland Supreme CourtPortugal Tribunal Constitutional

12 See generally, Cappelletti 1989, Brewer-Carias 1989, Maddex 1995, Tate and VaUinder 1994,Volcansek 1992, Tate 1987, Shapiro and Stone 1994, Jacob et al. 1996, and the Special Issue ofWest European Politics (July 1992) devoted to courts in Western Europe—"Judicial Politics andPolicy-Making in Western Europe."

14

Russia Supreme Court of the Russian FederationSpain Tribunal ConstitutionalUnited Kingdom Court of AppealUnited States Supreme Court

Our sample of courts varies on several dimensions. (1) These judicial institutions range

considerably in political importance, from the Supreme Court of the United States and the

Bundesverfassungsgericht (Kommers 1976, 1989) on one pole to the Cour Superieure de Justice of

Luxembourg, Belgium's Hofvan Cassatie (Verougstrate 1992), and the Cour de Cassation of

France (Jacob et al. 1996) on the other end (see generally Alivizatos 1995). (2) The "births" of

the courts in our sample occurred over a period of more than two centuries, from 1753 for the

Danish H^jesteret through 1993 for the Supreme Court of the Russian Federation. Eleven of these

institutions were created before World War II, nine after (mean year of founding = 1911, median

year = 1952). (3) These courts also differ in "political age"--i.e., for the politically relevant courts,

the age at which they began to make decisions of interest to the political community and especially

the mass public, in contrast to the professional judiciary. (4) As we have suggested, these courts

possess different combinations of formal powers. Some are specialized courts of constitutional

review (Spain, Portugal, Italy, Germany, Greece), in the Kelsenian mode (see Cappelletti 1989);

others blend the functions of judicial review and cassation (Ireland, the United States, Denmark,

Hungary, Poland, Russia); and others exercise only the power of cassation (France, Belgium,

Luxembourg, United Kingdom).13 (5) The legal systems in our sample of nations come from

13European law puts this statement about national courts without the power of judicial review ina different light. So, for example, although the Courts of Appeal do not have the power toinvalidate a parliamentary law in conflict with the "Constitution," they may do so if it is in conflictwith European law. Furthermore, as Alivizatos (1995) points out, courts without the explicit

15

several different "legal families" (see David and Briefly 1978, Ehrmann 1976)—common law

(U.S., Great Britain, Ireland), civil law (France, German, Spain, etc.), and mixtures of civil and

socialist (Poland, Hungary, Russia).

These courts, as we have suggested, vary in political Generality and importance, but all of

them make decisions of interest to ordinary people, as well as to lawyers and judges. We lack the

space to provide even a modest sampling of output from our courts (see Landfried 1988), but

here are a few examples of national high courts at work in this age of'judicialization of politics":

• In the Spring of 1996, the Supreme Court of Ireland overturned the High Court and

accepted an appeal challenging the recent referendum approving a constitutional amendment to

permit divorce. Prior to the appeal, the Supreme Court had ordered the government to stop

spending money to run advertisements in favor of tile referendum (Parkin 1996). Both actions

had the effect of delaying a majority intent on liberalizing divorce.

• During the middle 1980s, the Constitutional Court of Spain struck down portions of a

law abolishing criminal penalties against doctors performing abortions. The judges deadlocked 6-

6 and then, according to custom, the President of the Constitutional Court voted a second time

to break die tie and find against this legislation from a new and popular government (Stith 1987,

Spanish Abortion Decision 1985),

• On October 3, 1995, the Constitutional Court of Bulgaria struck down a provision of

the state's budget law as a violation of judicial independence—the sixth time since the previous

power of judicial review mav accomplish much the same outcome much of the time by interpretingthe parliamentary law in conformity with the Constitution.

16

elections the judges had invalidated a statute. The law in question placed the Ministry of Justice

in charge of funding the Supreme Judicial Council, which appoints judges, prosecutors, and

investigators (Krause 1995; Melone 1996).

• On April 4, 1996, the Supreme Court of the Russian Federation found in favor of

Greenpeace and overturned President Yeltsin's decree permitting the importation of nuclear waste

into Russia. Yeltin's government had hoped to use funds earned from the processing of imported

nuclear waste from foreign nations to finance the completion of the plant in Krasnoyarsk

(Gurushina 1996).

• In a divided vote, the Supreme Court of Poland upheld the presidential election of

November 1995 and declared Kwasniewski the winner, despite his having violated electoral law

by giving false information about his educational background. The justices unanimously agreed

on the violation, but disagreed on whether it had made any difference in die outcome of the

presidential elections (Karpinski 1995).

• Courts in The Netherlands lack the power of judicial review. Yet, in 1988, a court in

The Hague invalidated a statute retroactively withdrawing certain rights of students. Despite the

failure of parliament to adopt judicial review in the wake of debates in 1983, De Hqge Raad der

Nederlanden on the appeal came down on the side of judicial review in the rase of the

Harmonsatiewet in April of 1989 (Scheltema 1995, 209; see also Ten Kate and van Koppen 1996,

van Koppen 1990).

In sum, then, the decisions of high courts in Europe make a difference for both the leaders

and the lead in society, affecting matters of high policy—e.g., the waste site in Russia—and the

17

details of everyday life—e.g., divorce in Ireland and abortion in Spain.

We turn now to the results of our statistical analyses.

The Statistical Analysis

Awareness of National High Courts

We first asked the respondents about their level of awareness of their national high court.14

Table 1 reports the results.

[PLACE TABLE 1 ABOUT HERE]

Although there is considerable cross-national variability, generally speaking the national

high courts are reasonably well known. At one extreme lies West Germany - nearly one half of die

West Germans claim to be very aware of the Bundesverfassungsgericht. Other countries in which

awareness is widespread include Great Britain, the United States, Ireland, the former East

Germany, Denmark, and perhaps Spain as well. It is interesting to note that awareness of the

United States Supreme Court is quite high when compared with most other countries, even if

awareness is higher (or as high) in-a few countries. In Germany, Great Britain and the United

States more than four-fifths of the respondents claim at least a moderate degree of consciousness

of the highest national court. Countries in which the highest court has very little visibility include

Russia (the most extreme case, by far), Bulgaria, Luxembourg, Portugal, and perhaps France as

'The question read: "And what about the (HIGHEST COURT OF YOUR COUNTRY), thatis, one of the high (NATIONALITY) courts? Would you say you are very aware, somewhataware, not very aware or have you never heard of the (HIGHEST COURT OF YOURCOUNTRY)?"

18

well. We should reiterate, however, that substantial cross-national differences exist in the visibility

of the national high courts (eta = .50). Strikingly, when we collapse the two highest levels of

awareness, the percentage fairly aware of the national high court ranges from a low of 17.6 % in

Russia to a high of 85.9 % in West Germany.'

Even a cursory examination of the data in Table 1 reveals that awareness is not necessarily

related to the age of the institution. With the exception of Russia, awareness of the high court in

some of the new democracies is not particularly low. Awareness in Hungary, for instance, is about

the same as in The Netherlands and Greece; Poland is comparable to Italy; and Bulgaria is about

the same as Luxembourg in levels of awareness. We will investigate this relationship more

rigorously below, but it is clear that there is not necessarily a strong relationship between the

length of time the institution has existed and its salience within the mass public.

Awareness of die national high courts may indicate something ofdieir politicization. After

all, these courts become known primarily when they make decisions that attract the attention of

the mass media. Decisions on arcane legal issues are unlikely to interest many; decisions on issues

of public law—Sunday closing, abortion, gender equality, etc.—are much more likely to penetrate

the consciousness of the mass public. To the extent that a court is salient, it is probably because it

has made decisions of interest and concern to ordinary people.

For most of the analysis that follows, we have put aside diosc respondents who arc insufFi-

ciendy attentive to their national high court to have meaningful opinions (see the first and second

19

data columns in Table 1, above).13 We do not contend that the views of these people are always

unimportant (see Gibson and Caldeira 1995); but, for purposes of an analysis of attitudes toward

these courts, it is prudent not to include those who are oblivious to the existence of the institution.

Following earlier research (e.g., Caldeira and Gibson 1995), we refer to this culled sample as die

"attentive public" of the institution.

Specific Support

Table 2 reports the levels of specific support for the national high courts, using as a

measure of specific support overall satisfaction with the performance of the institution.16 There are

certainly cross-national differences in Table 2 (eta = .37), but not of the magnitude shown in

Table 1 (above). Generally, satisfaction with the performance of the national high courts is fairlv

high, especially among those who are able to form an opinion. In contrast to the data on

awareness, specific support seems to be relatively low in the new democracies of Central and

Eastern Europe, even beyond the high percentages of respondents unable to form a judgment.

Satisfaction with the United States Supreme Court is certainly substantial, but pales in comparison

15As Lau and Redlawsk (1996, 3, emphasis in the original) argue: "Thus, members of the publicmay agree or disagree with actions of officials or institutions, but that agreement or disagreementmust be predicated on some awareness of die policy outputs of those officials and institutions. Thisis a necessity ofdefinition -- an unaware citizen cannot offer specific support, cannot support oroppose policies that are unknown." The same argument can be made about diffuse support.

16In the 1995 survey, the question read: "From what you have heard or read, would you say thatyou are very satisfied or not satisfied at all with the way the (HIGHEST COURT OF YOURCOUNTRY) has been working?" In the 1993 survey, the question did not refer to "what you haveheard or read." Instead it read as follows: "Now, returning to the (HIGHEST COURT OFYOUR COUNTRY), would you say that you are very satisfied or not satisfied at all with the waythe (HIGHEST COURT OF YOUR COUNTRY) has been working?"

20

to the Danish or Dutch high courts, for instance. Few citizens are extremely pleased with their

national high courts, but few too are very displeased.

[PLACE TABLE 2 ABOUT HERE]

Diffuse Support

Our conceptualization of diffuse support follows prior work in the area; it is "institutional

commitment," an "unwillingness to make or accept fundamental changes in the functions of the

institution" in the constitutional framework (Caldeira and Gibson 1992, 638). We have used three

items to measure diffuse support for the national high courts, and the responses to these items are

reported, in Table 3. The propositions we put to the respondents closely mirror our conceptualiza-

tion of diffuse support, with the first item in the table being the clearest and most direct

operationalization of the concept. If one agrees that it might be better to do away with the court

because its decisions displease the majority, then obviously one is not supportive of the institution.

Similarly, support is indexed by willingness to defend the court's jurisdiction, as well as by

generalized trust in the institution.

[PLACE TABLE 3 ABOUT HERE]

There is a great deal of variability across countries in attitudes toward the national high

courts. Consider the first item—supportive responses among the attentive public range from a low

of 18.6 % in Bulgaria to a high of 76.0 % in the United States! In less than half of the countries,

a majority of the respondents expresses support for their national high court. In several

countries—Belgium, Spain (1993), Ireland, Luxembourg, Germany (East), Bulgaria, France

(1995), Hungary, and Spain (1995)—there are more opponents of the court than supporters. In

21

most countries, there is even less willingness to protect die jiiiisdiction of the national high court

Perhaps curiously, however, trast in die national high courts is quite widespread in most countries,

with an astounding 89 0 % of the Dutch respondents expressing trust in the De Hqge Raad der

Nederlanden This seems to indicate that people are trustful of their national high courts even if

they would support reigning in or destroying the institution should it fail to perform satisfactorily

over a lengthy period of time

When factor analyzed within each country, the responses to these three propositions

exhibit urudimensionahty—with die exception of Luxembourg, die items loaded on one significant

factor in every country In most countries the trust statement was the weakest indicator of diffuse

support (i.c , it had the lowest factor loading) Despite its i datively weak loading in most

countries, because the trust variable adds to the face validity ot die operationalization ot diffuse

support, we have not excluded it from consideration I7 To simplify comparisons across countries,

we have created a three-item summated index of support, and have standardized it on a one-

hundred point scale 18 Table 4 reports the means and standard deviations for each of the countries

According to this index, the Dutch are the most supportive ot their national high court, the

17It is possible diat die trust variable is too contaminated widi specific support and dierefore it onl\weakly relates to the more valid indicators of die concept Note that die trust item also suffers tromdegenerate variance in some countries, which would also account tor the relatively weak loadingof the item

18We have not used factor scores from die widim-countrv factor analyses because different weights(factor score coefficients) emerge in different countries Were we to weight (and standardize}within country, we would not be able to distinguish intcr-country differences due to diefrequencies on die variables from country differences attributable to differences in the weightingof the components of the index

22

Spanish (1993), the least supportive; and the Italians score right at the mean of die twenty

countries. Our data generally indicate that these national high courts vary a great deal in the levels

of legitimacy they have achieved (eta = .28). Many of the courts have a strong bedrock of support,

but, for many, support seems to be contingent upon the policy outputs of the institutions.

[PLACE TABLE 4 ABOUT HERE]

The data in Table 4 provide enlightening perspective on earlier research on die United

States Supreme Court. The Supreme Court is certainly a widely supported institudon in die U.S.

But, in comparadve perspective, it is not inordinately well supported. The high courts of The

Netherlands, Denmark, Germany (among West Germans), Greece, and even Poland are at least

as well supported as die United States Supreme Court. Though we must be mindful diat diere arc

some slight differences in the percentages of the samples that are inattcndve to the courts (none

ofdiese countries has as broad an attentive public as the United States), clearly the United States

Supreme Court does not have an excepdonally deep reservoir of good will among its mass public.

Connecting Awareness and Diffuse Support

To what degree does increased awareness of the nadonal high court contribute to increased

support for the institudon? The research from the United States strongly suggests that greater

awareness of die Supreme Court direcdv translates into greater support for the Court. This is not

necessarily because the people who become aware of the Court invariably discover that the

insdtudon is making desirable public policy. Instead, we hypodicsize diat greater awareness means

greater exposure to the legitimizing symbols associated with the Court. Thus, we expect that

awareness and support arc posidvely correlated. The data relevant to this hypothesis arc shown in

23

Table 5.

[PLACE TABLE 5 ABOUT HERE]

The data in Table 5 report widely varying relationships between awareness of the national

high court and support for it. The relationship is the strongest in Belgium (b = 12.0), where

predicted diffuse support varies from 47.5 % for the least aware to 71.5 % for the most aware.

The relationship is also quite strong in The Netherlands and France (1993). In Luxembourg and

Bulgaria, the relationship is slighdy negative (although not statistically significant), and awareness

and support are completely unrelated in Russia as well. The average of the unstandardized

regression coefficients is 5.5 (standard deviation = 4.1). To know a court is not necessarily to love

it, but generally there is a fairly strong tendency in most countries for the more aware to be more

supportive of their national high court.

The intercepts reported in Table 5 are also interesting since they represent the expected

level of diffuse support when there is little awareness of the national high court.19 In France

(1995), support was very low among those without any awareness of the Cour de Cassation, while

support was a great deal higher among the uninformed Dutch. Perhaps we can interpret diese

intercepts as the effect ofpre-adulthood socialization; that is, they are the levels of support for the

national high courts prior to exposure to any information about die institution. In nearly all of the

countries, increases in awareness result in greater diffuse support for the national high court.

Connecting Specific and Diffuse Support

Table 6 reports the regression coefficients connecting specific and diffuse support. As we

19Note that we have excluded those completely unaware of the institution from this analysis.

24

expected, the coefficients are generally positive—indicating that those more satisfied with die

current performance of the institution are more likely to extend diffuse support to it—but, also as

expected, the relationships differ considerably in strength. In Greece, West Germany, The

Netherlands, and the former East Germany, diffuse support closely mirrors specific support. In

Russia, the two types of support are unconnected, and in Luxembourg and Spain (1995), they are

not strongly related. The average unstandardized regression coefficient is 11.45, indicating a range

of nearly 46 points on the 100-point diffuse support scale from die lowest level of specific support

to the highest level. Awareness of the national high court is not nearly as strong a predictor of

diffuse support as is specific support.

With cross-sectional data, it is not entirely clear how to understand the relationship

between diffuse and specific support. Consider the case of the United States, for example. Those

who are satisfied with the outputs of the Supreme Court are generally supportive of the institu-

tion. But this does not necessarily mean that support would fall were satisfaction to decline.

Indeed, according to the theory of diffuse support, dissatisfaction would have to be sustained in

order for it to erode levels of diffuse support. At any given point in time, diffuse and specific

support may be positively related, negatively related, or even unrelated.20

The intercepts reported in Table 6 represent the levels of diffuse support when dissatisfac-

20We suspect that, due to processes of selective perception and cognitive dissonance reduction,those supportive of an institution are more likely to perceive policy outputs favorably. Thus, ingeneral, we hypothesize some degree of positive correlation between diffuse and specific support.Perhaps the most worrisome relationship is that of a very strong correlation between the two formsof support. To the extent that die relationship is very strong, the measures may not be registeringthe difference between the two concepts.

25

tion with the outputs of the institution is total. In some respects, this reflects the hardest core of

support for the institution. Among East Germans with no satisfaction with the policy outputs of

the high court, there is very little diffuse support. Contrariwise, there is a great deal of support

even in the absence of satisfaction in Russia, Poland, Luxembourg, and Spain (1995). The United

States Supreme Court has a fairly high core of support, with roughly two out of five Americans

expressing support for their Supreme Court even when completely unhappy with its policy

outputs.

Summary

We have discovered considerable cross-national variability in mass attitudes toward

national high courts. These institutions are in general relatively salient, and most mass publics are

reasonably satisfied with the outputs of the institution. Moreover, awareness of the institution

generally creates specific support, and specific support ultimately leads to diffuse support. These

data are not dispositive on the processes leading to the cross-sectional results, but they are entirely

compatible with our understanding of how institutional legitimacy becomes established.

Macro-Level Analysis

Perhaps the most interesting and unusual questions we can address with these data are

those framed at the macro level, using the court and/or political system as the unit of analysis. In

moving to the macro level, we use the micro-level survey data to derive indicators of die attributes

of the national high courts. Thus, average scores on diffuse support represent levels of institutional

legitimacy, awareness indicates the degree to which the court has made decisions of interest to

26

ordinary people, and hence the salience of the institution, etc. Though the number of cases

available for analysis is relatively small (N = 20), perhaps something can be learned from careful

and restrained analysis at the macro level.

Figure 1 reports the bivariate relationships among the three principal systemic variables --

institutional legitimacy, satisfaction with court outputs (specific support), and institutional

salience.21 Several relationships are noteworthy. First, the salience of tile national high court is

moderately related to satisfaction with its outputs (r = .42). Generally speaking, courts that

become visible apparently do so not by producing controversial decisions that most people oppose,

but instead by deciding cases in a direction pleasing to the majority. This finding was not

altogether expected.22

[PLACE FIGURE 1 ABOUT HERE]

But salience does not necessarily directly increase institutional legitimacy (r = .09). To

know a court is to be pleased with its policy outputs, but is not necessarily to love the institution

(in the sense of granting it legitimacy). The primary importance of salience is in its contribution

21The duplication of France and Spain in the macro-level data analysis creates certain statisticalproblems since die observations are not, strictly speaking, independent. We have not implementedthe typical corrections for such dependence since we are little concerned with inferential statisticsin this analysis. In no sense are these twenty observations representative of any larger group ofcourts, and we mindful indeed of the dangers of generalizing from this particular sample.

22Hibbing and Theiss-Morse (1995) concluded that one of the things that inoculates the UnitedStates Supreme Court from dissatisfaction is the lack of transparency in Court decision makingprocedures. Because the methods used by the Court to make policy decisions are shrouded frompublic scrutiny, the sort of disgust that characterizes perceptions of Congressional policy makingprocedures does not arise. Ironically, their view is that the more transparent are democraticinstitutions, the more likely they are to risk their support from ordinary citizens. Perhaps this is so,but our data are not necessarily in agreement with their view.

27

to satisfaction with institutional outputs.

At the level of the individual citizen, diffuse and specific support are only moderately

related in most nations; but, at the level of the political system, specific support is strongly related

to diffuse support (r = .57). Figure 2 displays this relationship. Courts in the nations above the

regression line have a reservoir of diffuse support in excess of what we would expect based upon

the aggregate level of specific support for the institution's policies; we see in this category Poland,

Greece, and The Netherlands. The courts below the line garnered less diffuse support than

anticipated as a result of the impact of specific support; Spain in 1993 is the most striking instance.

Generally, to the extent these institutions generated policy outputs pleasing to most people, on

average, they have a greater store of institutional legitimacy.

[PLACE FIGURE 2 ABOUT HERE]

These coefficients may well reflect the cross-sectional residue of a longitudinal process.

That is, over time, courts may gain visibility by making a series of decisions pleasing to various

constituencies. Contemporary approval may therefore reflect the summation of approval over the

years, and it may indicate that a succession of constituents has been satisfied over the time.

Courts, in contrast to parliaments, are able to frame decisions as being required by a constitution

or laws, and thus place them on a procedural rather than a substantive plane. This framing creates

an asymmetry in the relationship between diffuse and specific support: courts garner increased

legitimacy from pleasing decisions but lose little or nothing from displeasing decisions since they

can so readily defer responsibility for unpopular decisions to the "law." In this sense, there is no

"negativity bias," a tendency for negative policy outputs to be more readily noticed than positive

28

policy outputs.23 As satisfaction with the policy outputs of the institutions accumulates, institu-

tional legitimacy grows. Institutional salience is not necessarily related to legitimacy at any given

point in time; instead, salience is associated with knowing about and approving of judicial outputs,

which is different from extending legitimacy to the institution.

To what degree are any of the relationships related to the age of the institution? One of the

most interesting and obvious attributes on which these national high courts vary7 is their age. Some

of the courts came into existence two centuries ago (e.g., the United States Supreme Court); some

others, only very shortly before our surveys (e.g., Russia). It is reasonable to hypothesize that,

ceterispdfibus, the length of time the institution has existed has something to do with how ordinary

people feel about the institution.

As also shown in Figure 1, the salience of the national high court is unrelated to its age (

r = .24), probably because chronological age is not equivalent to political age. That is, as we noted

above, the important factor may be how long the institution has been in the public eye. Longevity

may be unrelated to visibility because even very old courts have only recently moved into the

public's eye. Moreover, salience may not contribute to a running tally in the same way as

satisfaction. Simply becoming salient to the mass public does not necessarily leave a residue on

mass consciousness. People may remember that they approved of the actions of the institution,

and their running tally on the institution may reflect an increment or a decrement due to some

earlier decision, but people do not keep track of how salient institutions are, or have been.

23This is contrary to some earlier work in other subfields. See for examples Fiske 1980; Skowronskiand Carlston 1987, 1989, and especially Lau 1982, 1985.

29

On the other hand, there is a very strong relationship ( r = .79) between the age of die

court and the level of satisfaction with its outputs.24 Apparently, courts that have been functioning

for some time have developed satisfied constituencies. This mav be due to courts learning over

time how to please their constituents, or it may be that satisfaction reflects not only contemporary

evaluations but the accumulation of satisfaction over time. Courts may be minoritarian institu-

tions, but if they are able to please a series of minorities, then they may, over time, draw the

support of a majority of the citizenry bv assembling what amounts to a "coalition of minorities."

Levels of diffuse support are only weakly related to the age of the institution (and, of

course, -controlling for levels of satisfaction completely eliminates the link between age and

legitimacv). What is important for the legitimacy of national high courts is the accumulation of

satisfied constituents, not the accumulation of time.

Satisfaction is strongly related to institutional legitimacy, but not nearly as strongly as the

length-satisfaction correlation. This most likely means that many, but far from all, of the satisfied

constituencies have been converted to supporters of the institution. This seems to suggest that,

over time, courts become known to their constituents by making decisions pleasing to them. As

satisfaction accumulates, a more enduring allegiance to the institution develops—that is, the

institution acquires legitimacy.

One implication of this hypothesized process would be that the degree of connection

24his relationship is not a function of the percentage of respondents unable to form an opinionabout the performance of the national high. The correlation between the percentage of peoplewithout an opinion of the court and the level of satisfaction is negative and is moderately large.Controlling for the percentage of respondents without an opinion has very little impact on therelationship between age and levels of satisfaction.

30

between satisfaction with policy outputs and diffuse support should increase over time. Within a

system, the accumulation of specific support shapes legitimacy, not the absolute level of support at

any given moment. Across systems, the degree of connection between specific and diffuse support

should therefore be contingent upon the age of the institution, especially in light of the strong

relationship between the age of the institution and levels of specific support.

To test this hypothesis, we use the unstandardized micro-level regression coefficients

resulting from regressing diffuse support on specific support (see Table 6, above) as the system-

level measure of the rate at which policy satisfaction translates into institutional legitimacy. The

correlation between these coefficients and the age of the national high court is only .21— although

older courts are ones for which specific support and diffuse support are more closely connected,

the relationship is extremely weak.25 Older courts tend to be more legitimate, and they tend to

have more accumulated specific support, support which more readily translates into institutional

legitimacy.

Yet we do observe a remarkable difference in the strength of the correlation between

specific and diffuse support depending on the age of the institution. The courts are easily divided

into two groups -- nine courts under thirty years of age (post-World War II), and eleven courts

over thirty years old. Among the former, the correlation between average specific and diffuse support is

.29; among the latter it is .72! This is a stunning difference in the magnitude of tile relationship,

despite the extremely small numbers of cases. Older institutions arc more successful at connecting

25There is some degree ofcurvilinearity in the relationship associated with skewness in the age ofthe courts. A simple quadratic equation results in explaining 34 % of the variance..

31

diffuse and specific support.

The data reveal a very strong relationship between the intercepts and the slopes from the

diffuse support—specific support regressions (r = -.74): as the magnitude of the intercept

increases, the slope decreases. These intercepts indicate the level of support for the high court

when satisfaction with the performance of the institution is at its nadir. In some sense, then, these

coefficients represent the depth of the reservoir of goodwill when it is at its shallowest. As die

reservoir fills, specific and diffuse support become more weakly connected, suggesting that the

marginal benefit of satisfying more people declines. The larger the hard-core of support for an

institution, the more difficult it is to enhance its supply of legitimacy within the mass public.

There is also an interesting and powerful relationship between the age of the institution

and the degree to which awareness translates into satisfaction. As age increases, the connection

between the salience of the institution and specific support increases (r = .71). This suggests that

for older courts, becoming salient strongly enhances satisfaction. Since we have seen that this

increased satisfaction more readily translates into legitimacy among these older courts, the

stronger connection between awareness and satisfaction means that awareness is a strong but

indirect contributor to institutional legitimacy.26

26And indeed the correlation between the age of the court and the rate at which awarenesstranslates into diffuse support is .45.

32

Discussion and Concluding Remarks

With only twenty cases available for analysis, it is perhaps prudent not to push the

statistical analysis much further. We have already made some important discoveries, and are full

of ideas for additional research. To recap our principle findings:

• Even within our fairly restricted sample, national high courts vary enormously in the

degree to which they have achieved institutional legitimacy.

• The United States Supreme Court is not as unusual a high court as scholars typically

depict it. It is, to be sure, among the more salient and more legitimate high courts when compared

to Europe, but it is by no means sui generis.

• Generally speaking, to be aware of a court is to be supportive of it. This "positivity bias"

surely is associated with exposure to the legitimizing symbols that all courts so assiduously

promulgate and manipulate.

• The acquisition of support is clearly a dynamic process. Apparently, courts generate

specific support by becoming salient, by making their policy making activity known to the mass

public.

• Satisfaction slowly evolves into institutional legitimacy, and the degree of connection be-

tween specific and diffuse support is contingent upon the age of the institution. At the micro-level,

this finding is compatible with the notion of a running tally; at the macro-level, it suggests that

young courts can only acquire legitimacy by making their decisions known to the mass public, and

waiting.

• Finally, it may not be necessary for courts to satisfy the majority with any given decision.

33

Figure 1. Macro-Level Relationships Among Institutional Longevity,Salience, Specific Support, and Legitimacy

Age of theNat iona l High Cour t

24 . 7 9.36

Sat i s fac t ion wi thCourt Outputs

. 57. 42

Institutional ....___________..„_. InstitutionalSalience ^ 0 9 Legitimacy

Figure 2. Diffuse Support Regressed on Specific Support, National High Courts

Though our evidence on this point is highly inferential, it seems that courts can build legitimacy

by developing support among a succession of minorities. To the extent that a national high court

appeals to and satisfied only a single constituency, it is unlikely that it will acquire legitimacy. But,

if different areas of policy making please different constituents, then legitimacy is attainable. This

strategy is only possible because of the strong "positivity bias" in how people react to the national

high courts; and this bias is, we argue, a function of the ability of judges to frame issues in a light

favorable to the maintenance of institutional legitimacy.

Though we have found some cross-national variability, these empirical results are remarkably

consistent across the eighteen courts in our sample.

Yet there are also some important puzzles arising from these data, perhaps requiring some

fundamental re-thinking of the processes involved in the acquisition and maintenance of

institutional legitimacy. For instance, as we have shown, diffuse and specific support are closely

connected among relatively established courts; among relatively new courts, they are not

connected. The age of a court is more strongly related to levels of specific support than to diffuse

support. Conventional theory about the origins of diffuse support would not predict these

findings. Conventional theory would most likely predict that, with time, diffuse and specific

support would become more divorced rather than more closely connected. Our results here require

us to re-think the relationship between diffuse and specific support.

Three possibilities occur to us. First, our measure of specific support may be systematically

contaminated with elements of diffuse support. We did not ask the respondents whether they

approved of specific court decisions; indeed, we did not even screen the question by awareness of

34

specific court decisions. Our measure is performance-based, but it clearly asks the respondents for

a summary judgment of how well the institution has been performing—to report something like

a "running tally" of their feelings about the national high court. Thus, our measure may come

close to tapping diffuse support, or may tap an orientation somewhere between diffuse and specific

support.

Second, perhaps attitudes toward institutions are more complicated than we originally

assumed. We have resisted making finer distinctions than that between specific and diffuse

support, especially since we are mindful that not all recognize the utility of differentiating these

two attitudes in the first place. But perhaps many citizens hold three types of views toward

institutions. First, they might evaluate specific policy outputs of the institution—after the fashion

of "presidential or ministerial popularity." Such attitudes are obviously highly fluid. Second, they

might also have running tally, what Marcus et al. (1995) would call a "standing decision," a

summary of past satisfactions. This attitude is precisely a judgment about how well the institution

has been performing its job in general. Finally, people might also make judgments about the

institution itself. These we refer to as "institutional commitments," or diffuse support. Thus,

people evaluate the day-to-day outputs of institutions, summarizing those evaluations in a

generalized sense of the quality of the performance of the institution. After enjoying sustained

satisfaction, they develop commitments to the institution that transcend short-term, or perhaps

even relatively mid-term, dissatisfaction with the outputs of the institution. Though the interrela-

tionships among these three attitudes is assuredly complicated (and changes over time), we suspect

that at least some people have relatively differentiated views of institutions and the policies they

35

produce.27

We would like to add one more heresy to this revised framework—perhaps diffuse support

is a cause not a consequence of specific support, as least within political systems within which

attitudes toward courts have crystallized. That is, levels of commitment to an institution may color

the views one holds of the performance of the institution. Through processes of framing and

selective perception, those who hold allegiance toward a court may be likely to discount objection-

able decisions, while giving excessive credit to the court for favorable decisions. Part of this process

may involve selective perception—one pays more attention to decisions with which one agrees.

But another element of the process may have to do with processes of assigning blame for bad

decisions. Those who have a strong commitment to a court are most likely those who have been

continuously exposed to the legitimizing symbols propagated by courts (reinforcing the effects of

pre-adult socialization), and thus are likely to have an alternative explanation of why a particular

decision (or even a particular set of decisions) was made—for example, die decision was compelled

by "the law" or "the Constitution." If courts frame unpopular decisions to avoid responsibility for

the policy, then a positivity bias would result—favored decisions would result in an increment in

the "running tally"; disfavored decisions would not result in a decrement. This would also mean

that diffuse support causes specific support; diffuse support provides a framework for interpreting

and evaluating the outputs of courts. If so, then the research agenda for the field needs a profound

27We note as well that Hibbing and Theiss-Morse (1995) are not reticent about breaking apartcitizen attitudes toward the U. S. Congress. They show that people have separable views towarda) their own member in the House, b) members as a collective, and c) the institution. Our proposalis certainly little more complicated than theirs.

36

reonentation.

Some of our analysis is admittedly quite speculative. Though we have amassed the broadest

collection of data ever assembled on mass attitudes toward national high courts, our findings are

nonetheless limited to the United States and Europe. And of course our efforts to tease longitudi-

nal processes out of cross-sectional data will surely not please everyone. Subsequent analyses may

therefore reveal that our conclusions are limited by both time and space. Nonetheless, we are

convinced that a more thorough understanding of the processes by which courts acquire

legitimacy cannot be achieved by additional studies of the United States Supreme Court(at least

not using conventional survey methodologies), and that comparative politics must begin to include

courts and law in its research agenda. Students of law and courts must also abandon a bit of their >

parochialism by paying heed to courts and legal systems outside the United States. Since the

world-wide trend toward the "judicialization of politics" is unlikely to abate soon, enormous

opportunity exists for using cross-national research on courts to test theories of institutional

support heretofore thought untestable.

37

References

Adamany, David, and Joel Grossman. 1983. "Support for the Supreme Court as a National

Policymaker." Law & Policy Quarterly 5:405-437

Alivizatos, Nicos. 1995. "Judges as Veto Players." In Parliaments and Majority Rule in Western

Europe. Edited by Herbert Doring. New York: St. Martin's Press. Pp. 566-591.

Barzilai, Gad, with Ephraim Yuchtman-Yaar and Zeev Segal. 1994a. "Supreme Courts and

Public Opinion: General Paradigms and the Israeli Case." Law and Courts 4:3-6.

Barzilai, Gad, with Ephraim Yuchtman-Yaar. 1994b. "The Political Nature of Judicial Review:

Legitimacy of Supreme Courts as Mythical, Diffuse and Specific Supports." Paper

presented at the 1994 Interim Meeting of the Research Committee on Comparative

Judicial Studies of the International Political Science Association, Florence, Italy.

Boynton, G. R., and Gerhard Locwenberg. 1973. "The Development of Public Support for

Parliament in Germany, 1951-1959." British Journal ofPolitical Science 3: 169-189.

Boynton, G. R., and Gerhard Loewenberg. 1974. "The Decay of Support for Monarchy and the

Hitler Regime in the Federal Republic of Germany." British Journal of Political Science 4:

453-488.

Brewer-Carias, Allan R. 1989. Judicial Review in Comparative Law. Cambridge, England:

Cambridge University Press.

Caldeira, Gregory A. 1991. "Courts and Public Opinion." In John B. Gates and Charles A.

Johnson (eds.). The American Courts: A Critical Assessment. Washington: CQ Press. Pp.

303-334.

38

Caldeira, Gregory A. 1986. "Neither the Purse Nor the Sword: Dynamics of Public Confidence

in the U.S. Supreme Court." American Political Science Review 80:1209-1226.

Caldeira, Gregory A. 1977. "Children's Images of the Supreme Court: A Preliminary Analysis."

Law and Society Review 11;851-871.

Caldeira, Gregory A., and James L. Gibson. 1992. "The Etiology of Public Support for the

Supreme Court." American Journal of Political Science 36:635-664.

Caldeira, Gregory A., and James L. Gibson. 1995. "The Legitimacy of the Court of Justice in the

European Union: Models of Institutional Support. "American Political Science Review^ 89

(June): 356-376.

Cappelletti, Mauro. 1989. The Judicial Process in Comparative Perspective. Oxford: Clarendon Press.

Casey, Gregory. 1974. "The Supreme Court and Myth: An Empirical Investigation." Law and

Society Review 8 (Spring): 385-419.

Constitutional Court of Spain. 1985. "Spanish Abortion Decision." Decision Number 53/1985

of 11 April 1985. Boletin de Juriprudencia Constitutional.

David, Rene, and John E. C. Brierly. 1978. Major Legal Systems in the World Today. 2nd edition.

London: Stevens.

Dahl, Robert A. 1957. "Decision-making in a Democracy: The Supreme Court as a National

Policy-Maker." Journal of Public Law 6:279-295.

Easton, David. 1975. "A Re-Assessment of the Concept of Political Support." British Journal of

Political Science 5:435-457.

Easton, David. 1965. A Systems Analysis of Political Life. New York: John Wiley.

39

Easton, David, and Jack Dennis. 1969. Children in the Political System: Origins of Political Legiti-

macy. New York: McGraw-Hill.

Ehrmann, Henry W. 1976. Comparative Legal Cultures. Englewood Cliffs: Prentice-Hall, Inc.

Epp, Charles R. 1996. "Do Bills of Rights Matter? The Canadian Charter of Rights and Free-

doms, "-dw^ncaw Political Science Review 90 (December): 765-779.

Fiske, Susan T. 1980. "Attention and Weight in Person Perception: The Impact of Negative and

Extreme Behavior." Journal of'Personality and Social Psychology 38: 889-906.

Gibson, James L. 1996. '"Putting Up With' Fellow Russians: An Analysis of Political Tolerance in

the Fledgling Russian Democracy." Conference on "Civic Culture in Post-Communist

Societies," Centre for European Studies, Nuffield College, Oxford University, Oxford

England, 8-9 March 1996.

Gibson, James L. 1991. "Institutional Legitimacy, Procedural Justice, and Compliance with

Supreme Court Decisions: A Question of Causality." Law & Society Review 25:631-636.

Gibson, James L. 1989. "Understandings of Justice: Institutional Legitimacy, Procedural Justice,

and Political Tolerance." Law & Society Review 23:469-496.

Gibson, James L., and Vanessa Baird. Forthcoming. "The Legitimacy of the United States

Supreme Court: A Conceptual and Empirical Analysis." In Perspectives on American and

Texas Politics: A Collection of Essays. Edited by Donald S. Lutz and Kent L. Tedin.

Dubuque, LA: Kendall Hunt.

Gibson, James L., and Gregory A. Caldeira. 1992. "Blacks and the Supreme Court: Models of

Diffuse Support." Journal of Politics 52:1120-1145.

40

Gibson, James L., and Gregory A. Caldeira. 1995. "The Legitimacy of Transnational Legal

Institutions: Compliance, Support, and the European Court of Justice." American Journal•s

of Political Science 39 (May): 459-489.

Gibson, James L., and Gregory A. Caldeira. 1997. "Changes in the Legitimacy of the European

Court of Justice: A Post-Maastricht Analysis," British Journal of Political Science forthcom-

ing.

Gibson, James L., and Joseph Sanders. 1996. "Procedural Justice, the Rule of Law, and Democra-

tization: A Comparative Analysis." Joint Meetings of the Law and Society Association and

the Research Committee on the Sociology of Law of the International Sociological

Association, University of Strathclyde, Glasgow, Scotland, 10-13 July, 1996.

Grosskopf, Anke. 1996. "Dynamic and Diffuse—A General Model of Support for Supreme

Courts." Paper delivered at the Annual Meeting of the Midwest Political Science Associa-

tion, Chicago, April 18-20, 1996.

Guarneri, Carlo, and Pedro Magalhaes. Forthcoming. "Judicial Reform and Democratic

Consolidation in Southern Europe." In The Changing Role of the State in Southern Europe.

Edited by R. Gunther, G. Pasquino, and P. N. Diamandouros (eds.). Baltimore: Johns

Hopkins University Press.

Gurushina, Natalia. 1996. "Supreme Court Overturns Yeltin's Decree on Nuclear Waste

Disposal." OMRI Daily Digest. April 5, 1996.

Hibbing, John R., and Elizabeth Theiss-Morse. 1995. Congress as Public Enemy: Public Attitudes s

Toward American Political Institutions. Cambridge: Cambridge University Press.

41

Hoekstra, Valeric J. 1996. "Policy or Process? Reconceptualizing Support for the United States

Supreme Court." Paper delivered at the 1996 meeting of the Scientific Study of Judicial

Politics, St. Louis, Missouri.

lyengar, Shanto. 1991. Is Anyone Responsible? How Television Frames Political Issues. Chicago:

University of Chicago Press.

Jacob, Herbert, Erhard Blankenburg, Herbert M. Kriczer, Doris Marie Provine, and Joseph

Sanders. 1996. Courts, Law, and Politics in Comparative Perspective. New Haven: Yale

University Press.

Jennings, M. Kent. 1989. "The Crystallization of Orientations." In Continuities in Political Action:

A Longitudinal Study of Political Orientations in Three Western Democracies. Edited by M.

Kent Jennings, Jan W. van Deth, et al. Berlin: Walter de Gruyter. Pp. 313-348.

Kitchin, William. 1995. "Legal Reform and the Expansion of Judicial Power in Russia." In The

Global Expansion of Judicial Power. Edited by C. Neal Tate and Torbjorn Vallinder. New

York: New York University Press. Pp. 441-459.

Kommers, Donald P. 1976. Judicial Politics in West Germany. Beverly Hills: Sage Press.

Kommers, Donald P. 1989. The Constitutional Jurisprudence of the Federal Republic of Germany.

Durham: Duke University Press.

Krause, Stefan. 1995. "Bulgarian Constitutional Court Invalidates Another Law." OMRI Daily

Digest. December 11, 1995.

Landfried, Christine. 1988. Constitutional Review and Legislation: An International Comparison.

Baden-Baden: Nomos.

42

Lau, Richard R. 1985. 'Two Explanations for Negativity Effects in Political Behavior." American

Journal of Political Science 29: 119-138.

Lau, Richard R. 1982. "Negativity in Political Perception." Political Behavior 4:353-377.

Lau, Richard R., and David P. Redlawsk. 1996. "Diffuse and Specific Support for the United

States Supreme Court, 1980-1992." Unpublished paper, Rutgers University, August 8,

1996.

Lerner, Max. 1937. "Constitution and Court as Symbols." Yale Law Journal 46:1290-1319.

Lodge, Milton, and Charles Taber. 1996. "Three Steps Toward a Theory of Motivated Political

Reasoning." Paper delivered at the Nineteenth Annual Scientific Meeting of the Interna-

tional Society of Political Psychology, June 30 — July 3, 1996, Vancouver, Canada.

Maher, Imelda. 1994. "National Courts as European Community Courts." Legal Studies 14:226-

243.

Maddex, Robert L. 1995. Constitutions of the World. Washington, DC: Congressional Quarterly,

Inc.

Marshall, Thomas R. 1989. Public Opinion and the Supreme Court. Boston: Unwin Hyman.

Melone, Albert P. 1996. "The Struggle for Judicial Independence and the Transition Toward

Democracy in Bulgaria." Communist and Post-Communist Studies 29 (#2): 231-243.

Melone, Albert P., and Carol E. Hayes. 1996. "The Judicial Role in Bulgaria's Struggle for

Human Rights. "Judicature 77:248-253.

Merryman, John Henry, David S. dark, and John 0. Haley. 1994. The Civil Law Tradition:

Europe, Latin America, and East Asia. Charlottesville, Virginia: Michie Co.

43

Mondak, Jeffery J. 1992. "Institutional Legitimacy, Policy Legitimacy, and the Supreme Court."

American Politics Quarterly 20: 457-477.

Murphy, Walter F., and Joseph Tanenhaus. 1990. "Publicity, Public Opinion, and the Court."

Northwestern University Law Review 84:985-1023.

Murphy, Walter F., and Joseph Tanenhaus. 1970. The U. S. Supreme Court and Its Elite

Publics: A Preliminary Report. Prepared for Meetings of the International Political

Science Association.

Murphy, Walter F., Joseph Tanenhaus, and Daniel Kastner. 1973. Public Evaluations of Constitu-

tional Courts: Alternative Explanations. Beverly Hills: Sage Publications.

Murphy, Walter F., and Joseph Tanenhaus. 1968. "Public Opinion and the United States Supreme

Court." Law and Society Review 2:357-382.

Nelson, Thomas E. 1997. "Media Framing of a Civil Liberties Conflict and Its Effect on

Tolerance." American Political Science Review. Forthcoming.

Nelson, Thomas E., and Donald R. Kinder. 1996. "Issue Frames and Group-Centrism in

American Public Opinion." Journal of Politics 58 (November): 1055-1078.

Parkin, Chris. 1996. "Irish Divorce Change Delayed." United Press International. February 8,

1996.

Rogowski, Ronald. 1993. "Comparative Politics." In Political Science: The State of the Discipline.

Edited by Ada Finifter. 1993. Washington, DC: American Political Science Association.

Pp. 431-450

Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring About Social Change7 Chicago:.

44

The University of Chicago Press.

Scheltema, Michiel. 1995. "Constitutional Developments in The Netherlands: Toward a Weaker

Parliament and Stronger Courts?" In Constitutional Policy and Change in Europe. Edited by

Joachim Jens Hesse and Nevil Johnson. New York: Oxford University Press. Pp. 200-

213.

Shapiro, Martin M. 1981. Courts: A Comparative and Political Analysis. Chicago: University of

Chicago Press.

Shapiro, Martin. 1993. "Public Law and Judicial Politics." In Political Science: The State of the

Discipline. Edited by Ada Finifter. Washington: American Political Science Association.

Pp. 365-381.

Provine, Doris Marie. 1996. "Courts in the Political Process in France." In Courts, Law, and

Politics in Comparative Perspective. Edited by Herbert Jacob, Erhard Blankenburg,

Herbert M. Kritzer, Doris Marie Provine, and Joseph Sanders. 1996. New Haven: Yale

University Press. Pp. 177-248.

Shapiro, Martin, and Alee Stone. 1994. "The New Constitutional Politics of Europe." Comparative

Political Studies 26 (January): 397-420.

Skowronski, John J., and Donal E. Carlston. 1987. "Social Judgment and Social Memory: The

Role of Cue Diagnosticity in Negativity, Positivity, and Extremity Biases." Journal of

Personality and Social Psychology 52:689-699.

Skowronski, John J., and Donal E. Carlston. 1989. "Negativity and Extremity Biases in Impres-

sion Formation: A Review of Explanations." Psychological Bulletin 106:131-142.

45

Steytler, Nico. 1995. "The Judicializarion ofNamibian Politics." In The Global Expansion of Judicial

Power. Edited by C. Neal Tate and Torbjorn Vallinder. New York: New York University

Press. Pp. 485-511.

Taber, Charles, Jill Glather, and Milton G. Lodge. 1994. "The Motivated Construction of

Political Judgments." Manuscript, Department of Political Science, State University of

New York, Stony Brook.

Stone, Alee. 1994. The Birth of Judicial Politics in France. New York: Oxford University Press.

Stith, Richard. 1987. "New Constitutional and Penal Theory in Spanish Abortion Law."

American Journal of Comparative Law 35:513-558.

Tanenhaus, Joseph, and Walter F. Murphy. 1981 "Patterns of Public Support for the Supreme

Court: A Panel Study." Journal of'Politics 43 (February) :24-39.

Tate, C. Neal. 1995a. "Why the Expansion of Judicial Power?" In The Global Expansion of Judicial

Power. Edited by C. Neal Tate and Torbjorn Vallinder. New York: New York University

Press. Pp. 27-37.

Tate, C. Neal. 1995b. "The Philippines and Southeast Asia."In The Global Expansion of Judicial

Power. Edited by C. Neal Tate and Torbjorn Vallinder. New York: New York University

Press. Pp. 463-484.

Tate, C. Neal. 1987. "Judicial Institutions in Cross-National Perspective: Toward Integrating

Courts into the Comparative Study of Politics." In John R. Schmidhauser (ed.). Compara-

tive Judicial Systems. London: Butterworth's.

Tate, C. Neal, and Stacia L. Haynie. 1993. "Authoritarianism and the Functions of Courts: A

46

Time Series Analysis of the Philippine Supreme Court, 1961--1987." Law and Society

Review 27 (#4): 707-740.

Tate, C. Neal, and Torbjorn Vallinder. 1995. "Judicialization and the Future of Politics and

Policy." In The Global Expansion of Judicial Power. Edited by C. Neal Tate and Torbjorn

Vallinder. New York: New York University Press. Pp. 515-528.

Tate, C. Neal, and Torbjorn Vallinder (eds.). 1995a. The Global Expansion of Judicial Power. New

York: New York University Press.

Tate, C. Neal, and Torbjorn Vallinder. 1995b. "The Global Expansion of Judicial Power: The

Judicialization of Politics." In The Global Expansion of Judicial Power. Edited by C. Neal Tate

and Torbjorn Vallinder. New York: New York University Press. Pp. 1-10.

Ten Kate, Jan, and Peter van Koppen. 1996. "The Netherlands: Toward A Form of Judicial

Review." In The Global Expansion of Judicial Power. Edited by C. Neal Tate and Torbjorn

Vallinder. New York: New York University Press. Pp. 369-380.

Tyier, Tom R. 1990. Why People Follow the Law: Procedural Justice, Legitimacy, and Compliance.

New Haven: Yale University Press.

Tyier, Tom R., and Gregory Mitchell. 1994. "Legitimacy and the Empowerment of Discretion-

ary Legal Authority: The United States Supreme Court and Abortion Rights." Duke Law

Journal 43:703-815.

Vallinder, Torbjorn. 1995. "When the Courts Go Marching In." In The Global Expansion of Judicial

Power.. Edited by C. Neal Tate and Torbjorn Vallinder. New York: New York University

Press. Pp. 13-26.

47

Van Koppen, Peter J. 1990. "The Dutch Supreme Court and Parliament: Political Decision-

Making versus Nonpolitical Appointments." Law & Society Review 24:745-780.

Verougstraete, Ivan. 1992. "Judicial Politics in Belgium." In Judicial Politics and Policy-Making

in Western Europe. Edited by Mary Volcansek. London: Frank Sons. Pp. 93-109.

Volcansek, Mary L. 1992. "Judges, Courts and Policy-Making in Western Europe." West European

Politics 15 {July): 1-8.

Weiler, J. H. H. 1994. "A Quiet Revolution: The European Court of Justice and Its Interlocu-

tors." Comparative Political Studies 26 (January): 510-534.

Van Koppen, Peter J. 1990. 'The Dutch Supreme Court and Parliament: Political Decision-

Making versus Nonpolitical Appointments." Law & Society Review 24:745-780.

Verougstraete, Ivan. 1992. "Judicial Politics in Belgium." In Judicial Politics and Policy-Making

in Western Europe. Edited by Mary Volcansek. London: Frank Sons. Pp. 93-109.

Zailer, John R. 1992. The Nature and Origins of Mass Opinion. Cambridge, UK: Cambridge

University Press.

Zailer, John. 1990. "Political Awareness, Elite Opinion Leadership, and the Mass Survey

Response." Social Cognition 8:125-153.

48

Table 1. Awareness of National High Courts

Mote: The first five columns are percentages and total to 100 percent, across therows, except for rounding errors.

Table 2. Specific Support (Satisfaction) with National High Courts,Attentive Publics

Note: The first five rows are percentages and total to 100 percent, except forrounding errors.

Table 3. Support for National High Courts, Attentive Publics

Table 3 . (Continued)

Note: The first three rows total to 100 percent, except for rounding errors.

Institutional Commitment: If the highest court of your country started making a lotof decisions that most people disagreed with, it might be better to do away with thfhighest court of your country altogether.

Court Jurisdiction: The right of the highest court of your country to decide certairtypes of controversial issues should be reduced.

Trust: The highest court of your country can usually be trusted to make decisionsthat are right for the country as a whole.

Table 4. Diffuse Support for National High Courts, Attentive Publics

Note: The 100 point summated index is created from responses to the items reportedin Table 3. The countries are ranked accorded to the degree of support for the na-tional high court (lowest to highest).

Table 5. Regression of Diffuse Support on Awareness

Note: The countries are rank ordered on the magnitude of b, the unstandardizedregression coefficient. Beta is the standardized regression coefficient; s.e. is th<standard error of the unstandardized regression coefficient. R is simply the squareof the standardized regression coefficient.

* p < .01** p < .001

Table 6. Regression of Diffuse Support on Specific Support

Note: The countries are rank ordered on the magnitude of b, the unstandardizedregression coefficient. Beta is the standardized regression coefficient; s.e. is thestandard error of the unstandardized regression coefficient. R is simply the squareof the s-tandardized regression coefficient.

* p < . 01.

** p < .001.