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Televised Oral Arguments and Judicial Legitimacy: An Initial Assessment

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Abstract

What happens to the perceived legitimacy of appellate courts when they allow cameras into their courtrooms? We implemented two experiments that exposed people to real video clips from two courts. In the first experiment we varied the modality (video or audio), contentiousness (neutral or contentious), and camera angle (static or dynamic) of exchanges between an attorney and judge and then measured people’s views toward judicial legitimacy. We found that static angles do not appear to influence legitimacy but using dynamic angles might have a limited effect. Watching a neutral exchange might increase judicial legitimacy—compared to listening to that exchange—but watching a contentious exchange might decrease it. In a second experiment we examined whether the presence of judicial symbols interacts with these effects. Evidence here is suggestive that these symbols could mitigate the negative effect of exposure to contentious content. Our results, though initial and limited in a number of ways, underscore both the complicated nature of cameras in the courtroom as well as the strong need for additional studies on a topic of great importance.

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Change history

  • 23 April 2023

    The orcid of coauthor Justin Wedeking has been updated in the article.

Notes

  1. A number of other studies find a connection between legitimacy and things like partisan or ideological agreement with decisions (Bartels & Johnston, 2013, 2020; Zilis, 2018; Christenson & Glick, 2015; Nicholson & Hansford, 2014).

  2. To be sure, cameras involve more issues than legitimacy alone. Some have argued that cameras could enhance transparency or accountability. Here, we focus on legitimacy because it has received the most scholarly attention.

  3. Some worry that cameras would lead attorneys to grandstand (Kennedy, 1996). While that outcome is possible, Jansen et al. (2018) finds that people actually engage in “good behavior” in the presence of cameras.

  4. An alternative approach would be to focus on the practical change that could take place in a world of televised arguments. Under this view, the format shift would create media coverage in cases that currently does not take place due to the unengaging nature of audio. We account for this possibility in our experimental design by including a control group who did not see or hear any oral argument content at all.

  5. Crigler et al. (1994) found that subjects were most emotionally aroused in the audiovisual condition. And emotion has been associated with decreases in court legitimacy (Armaly, 2018a).

  6. Two subsequent studies build on these findings. Nielsen et al. (2020) show that symbols increase acquiescence for the Australian High Court’s rulings. Armaly (2018b) shows that symbols, when paired with a legal argument about the importance of filling the vacancy created by the unexpected death of Justice Antonin Scalia, resulted in an increase in institutional support for the Supreme Court.

  7. We fielded the survey after the Supreme Court announced it would hold teleconferenced oral arguments (April 13) but before it provided the specific details of how it would operate such proceedings (April 30).

  8. In all of our stimuli, both the attorneys and judges are white males, which holds constant race and gender. Varying both of these in future studies would be useful given existing work on, for example, legitimacy and race (Gibson & Nelson, 2018) as well as on gender and oral argument (Patton & Smith, 2017).

  9. See https://www.merriam-webster.com/dictionary/contentious and https://www.dictionary.com/browse/contentious.

  10. Because we used real world materials, we could not manipulate only the tone or manner in which the exchanges took place while holding constant the actual words being spoken. Thus, there are differences in the stimuli aside from the tone and behavior of the justice. See the Supplementary Materials for additional discussion and details of these differences.

  11. As we note above, most appellate courts already record (and often livestream) audio of their proceedings, which means, as a policy matter, audio is a natural baseline (Morton & Williams, 2008). We still include a control group that lacks any stimuli at all (Gaines et al., 2007) as it allows us to evaluate how a change to video might impact individuals who would be newly exposed to oral argument content (presumably due to increased media coverage of the proceedings).

  12. As both of these states are Midwestern, this means we also held constant possible differences in the accent of the speakers—justices and attorneys alike. This is noteworthy since accents from some regions—particularly the north (e.g., New York) and the south—are perceived less favorably than others (Alford & Strother, 1990; Amira et al., 2018). Note, additionally, that none of the Minnesota speakers sounded like someone from the movie Fargo. Not that there’s anything wrong with that, ya know.

  13. As with any survey experiment, there was variation in the seriousness with which respondents completed the assigned tasks (Berinsky et al., 2014). The results we describe below include all respondents in the analysis. In the Supplementary Materials we present an alternative approach where we allow the effects to vary by level of engagement with our experiment. As one would expect, the effects are present among those who were engaged.

  14. Because we did not specifically identify either our courts or our judges, we needed to modify our question wording from those used in typical studies of the U.S. Supreme Court. We also crafted these statements to align with recent work arguing for a more “applied” approach to measuring legitimacy (Badas, 2019).

  15. This approach is substantively equivalent to simply conducting a series of t-tests to evaluate differences in our dependent variable. Additional results in the Supplementary Materials show that these results are unchanged if we add controls for respondent demographics. We also show that these results are substantively identical if we instead estimate an ordinal least squares linear regression model.

  16. Again, there are marginal differences between the control group and those who saw the contentious dynamic exchange (\(p = 0.08\), one-tailed). People who saw the contentious exchange were marginally less supportive of the court than people who saw nothing.

  17. We examined the effect of changing from neutral to contentious audio content since there are no camera angle differences in these materials. If it was video style (alone) causing our results, then the neutral-contentious content difference should be equal between the states. Increased contentiousness has a statistically significant increase in legitimacy for the Indiana audio content (\(p = 0.003\)) but has a slight yet statistically insignificant decrease for the Minnesota audio content (\(p=0.61\)). A Wald test of the difference between those differences (i.e., Indiana’s increase versus Minnesota’s null) allows us to reject the null that the two are equal (\(p = 0.02\)). The videos therefore may have differences which lead to the results we observe.

  18. These results include all respondents who completed our experiment. See the Supplementary Materials for an analogous treatment of shirkers that we discuss above for the first experiment.

  19. Recall that our original experiment provided some evidence of an effect within the dynamic video condition. Specifically, a neutral exchange led to higher legitimacy scores than a contentious exchange (i.e., the left half of Fig. 4). Though our primary purpose in executing this second experiment was to assess the effect of symbols, we note that, within this independent sample, we failed to recover the same effect when comparing subjects who were in the non-symbols condition (i.e., the first and third points plotted in Fig. 5).

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Authors and Affiliations

  1. Department of Political Science, Michigan State University, East Lansing, USA

    Ryan C. Black

  2. Department of Political Science, University of Minnesota, Minneapolis, USA

    Timothy R. Johnson

  3. Department of Political Science, University of Wisconsin, Madison, USA

    Ryan J. Owens

  4. Department of Political Science, University of Kentucky, Lexington, USA

    Justin Wedeking

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We thank Matt Cota and Jonathan King for feedback on earlier drafts. Replication files for the paper are available on Harvard Dataverse (https://doi.org/10.7910/DVN/IUANCE).

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Black, R.C., Johnson, T.R., Owens, R.J. et al. Televised Oral Arguments and Judicial Legitimacy: An Initial Assessment. Polit Behav (2023). https://doi.org/10.1007/s11109-022-09848-5

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