EUROPEAN COMMISSION

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Public opinion analysis

EUROPEAN COURT OF JUSTICE

Results ofEurobarometer Surveys N° 38.0 and 40.0

June 1994

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

British Journal of Political Science

Forthcoming

James L. Gibson
Cullen Distinguished Professor

Department of Political Science

University of Houston
Houston, TX 77204
United States

Gregory A. Caldeira
Professor
Department of Political Science
Ohio State University
Columbus, OH 43210
United 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. The
squall over democratic accountability that had been building finally hit the Community with
full force. Although the ship of state was not capsized, for a time it appeared uncertain
whether the vessel could right itself and set upon its proper course. This storm will long be
known simply as 'Maastricht'.
The fury of Maastricht was poorly forecast by social scientists. Though some were
aware that the barometer of public support for the European Union was falling, there was little
systematic analysis of the legitimacy of European Union institutions which could be used to
anticipate Maastricht. Indeed, apart from some evidence on support for the EC in general,2
scholars and policy makers knew little before 1993 about the basic legitimacy of the central
institutions of the EC. This inattention to mass beliefs and preferences was in part grounded
in the assumption that ordinary Europeans know little about the transnational institutions
that govern them, and that it therefore makes little sense to engage in empirical investigations
of their beliefs. Maastricht caught many by surprise because they assumed that the European
mass 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 European
Union institutions, with particular focus on its highest judicial body, the European Court of
Justice. We base our analysis on three surveys of the mass publics conducted in 1992 and
1993 in each of the member states. To this point, we have reported some initial findings on
support 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 was
not as well known as the European Parliament but was far from unnoticed. On several items
designed to tap commitment to the institution, we found that the ECJ had more enemies than
friends, and thus did not stand on a bedrock of institutional legitimacy. For instance, of those
who were dissatisfied with the Court's performance, only a small proportion expressed a
willingness to retain the Court if it continued to make objectionable decisions — the sine qua
non 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 and
accept a disagreeable Court decision.5 Thus, our papers suggest that diffuse support is indeed
a valuable commodity, but, in the context of 1992, that the Court could not rely upon support
from many of those who did not approve of its performance.
Our purpose in this current analysis is entirely different. First, since our first survey was
conducted during the dash over Maastricht, we need to determine whether our earlier findings
on the ECJ are stable and applicable to the period following the ratification of the treaty of
Maastricht. 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, we
seek 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 and
national high courts as well. The central theoretical question is whether more legitimate
institutions can transfer some of their legitimacy to less well endowed institutions. Thus, we
hope our analysis here provides a much more general assessment of the legitimacy of the

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 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 proceeds
to assess several empirical questions, including the levels of legitimacy of the European Court
of Justice, the national high courts, and the European Parliament. After considering — at both
the macro and micro levels - whether the legitimacy of the European Court of Justice
rebounded after the Maastricht period, we assess the 'legitimacy-transferring capacity' of the
European Parliament and the national high courts. Finally, we conclude by examining the
implications of our findings for further inquiry into the legitimacy of the European Union and
its major institutions.

The Meaning of Mass Legitimacy

Just 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 theoretical
definitions 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 fear
or self-interest, but because they are believed in some sense to have moral authority, because
subjects believe they ought to obey'.8 Thus, legitimacy involves the relationship between the
citizen and the state - it is a condition under which citizens cede authority to the state and
its institutions based on the normative judgment that the relationship is proper. '[Legitimacy
is in the first place a belief, stated or implied, in the right of government to form policies, to
attend to the general arrangements of society and its relation to other states, and to enforce
its commands. In other words, legitimacy exists where there is a belief in the government's
right to govern'.9 Thus, legitimacy is an empirical concept referring to patterns of beliefs
among the mass public.
Why do citizens cede this authority? Typically, they do so because they are given some
protection 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 more
powerful source of political legitimacy than elections." Thus, scholars 'distinguish legitimate
from illegitimate governments by focusing on constitutional provisions that establish the
opportunity for wide public participation and ensure procedural regularity, especially provisions
dealing with majority rule, minority rights, and accountability in regular and frequent
elections'.12
We believe it important to distinguish between legitimacy and obedience, even though
the two concepts are often intertwined. The central organizing hypothesis of legitimacy
research is that legitimacy enhances obedience (compliance). That is, legitimate polities are
more likely to succeed in securing compliance with law, even unpopular law. The moral
authority 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 an
important contributor to compliance with law.13

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 The complaint is sometimes heard that legitimacy is not a useful concept because it is
indistinguishable from habitual obedience.14 After all, citizens rarely engage in rational
consideration of whether their political institutions have the moral authority to govern. In-
stead, they simply accept those institutions, often without any thought whatsoever. If
legitimacy represents nothing more than habit, its power as a political concept is greatly
reduced.
We readily agree that it is inappropriate to infer motives from simple observations of
behavior. Citizens may acquiesce to authoritative decisions for many reasons, including simple
approval of the decision, habit, fear of reprisals for resisting, resignation and apathy, etc. That
citizens 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, legitimacy
comes most clearly into play when citizens object in some fashion to the actions of their
political and legal institutions. The belief that an institution is behaving properly, within the
confines of its authority, can serve to dampen resistance to unpopular decisions. We do not
assert that legitimacy has no meaning outside the context of disagreement, but legitimacy is
most palpable and politically important when citizens disapprove of the actions of their
political and legal institutions. Thus, legitimacy in some respects smacks of irrationality (at least
in the short term) - it is the extension of support to an institution even in the face of
disagreeable policy performance.
This view of legitimacy is closely connected to Easton's15 conceptualization of 'diffuse
support' for political institutions, captured well in his apt description of support as a 'reservoir
of goodwill'. 'Diffuse support' refers to a commitment to an institution that is not contingent
upon short-term satisfaction with policy outputs ('specific support'). Speaking of parliaments,
Loewenberg and Patterson16 claim:
Although public attitudes toward legislatures vary depending on short-term
public satisfaction with their performance, some part of the public attitude
toward the institution is unrelated to its performance but reflects long-term
influences .... This more enduring attitude, based on cumulative experience with
the institution or with political authority over a lifetime, has been called diffuse
support, 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 good
times and bad and a basis for public compliance with the enactments of the
legislature whether they are liked or not.
Legitimate polities can tap this reservoir of support when they make unpopular or
objectionable decisions.17 To the extent that political decision makers must slavishly struggle
to satisfy mass opinion with every decision, effective governance becomes difficult if not
impossible.18
Discussions of legitimacy typically generally refer to the state. But, as Easton and
others have pointed out, it is also appropriate to think about legitimacy as an attribute of
individual institutions and their authority to make binding public policy decisions. Citizens
have expectations about appropriate behavior for the political and legal institutions, their

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competence and their bounds. Political and legal institutions perceived as legitimate are
perceived as acting within their authority. Thus, as we noted earlier, a central hypothesis of
research on legitimacy is that this institutional legitimacy enhances obedience and
compliance even, or especially, under the condition of policy disagreement.
In our own work, we have conceptualized diffuse support as a commitment to the
fundamental attributes (structure and function) of a political institution. Diffuse support is the
unwillingness 'to accept, make, or countenance major changes' in the essential features of how
an 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 Union

In 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-decision
making, or not?' Fully 71.5 percent responded 'no' (only 14.4 percent said 'yes'). Data such as
these 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 sense
originally envisaged by European leaders. Instead of propelling the EC upward and onward to
more complete political union, 1992 turned out to mark an unprecedented controversy over
further European political, economic, and legal integration. For decades, the member-states and
institutions of the European Community had pressed steadily ahead on the political and
economic 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 of
Europe' was the signing in December, 1991, of the Maastricht Treaty (the Treaty on European
Union), a far-reaching plan for economic and political union.22 But, instead of solidifying
integration, the Maastricht Treaty galvanized intense opposition in mass and elite publics across
the European Community. Referenda on ratification of the Maastricht Treaty exposed the lack
of public understanding of and support for European union; voters first rejected the treaty in
Denmark and passed it only narrowly in France23; and opposition groups in the United
Kingdom and Germany called for referenda.24 Thus, by the Fall of 1992, the European
Community faced the most serious crisis in its history, with genuine questions about whether
further integration would prove politically possible.
The extended crisis over Maastricht, of course, had a panoply of consequences - some
tangible, some intangible — for the EU and its institutions. It raised the salience of the
European Community as never before, focused attention on the devolution of political power
from nation-states to bureaucrats in Brussels, and dramatized one of the chief concerns of
supporters and critics alike, the 'democratic deficit' - the lack of popular control over the
institutions of the European Community.25 Perhaps most important, this brouhaha seemed to
challenge the very legitimacy of the European Community, the right of these supranational
institutions to govern, precisely at the moment at which its supporters had hoped to see it take
a major step forward. Popular support for the European Community dropped sharply by the
end of 1992,26 although the consensus of elite support seemed to hold relatively steady. It is not
clear at this point whether Maastricht will have a long-lasting negative effect on public support

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 for the European Community, but few doubt the politics of the EU will ever be entirely the
same 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 for
the European Community as a whole; and it was, perhaps, even more so for the Community's
highest court - the European Court of Justice. The Court of Justice, like most courts, depends
to an even greater extent on public esteem than do most other political institutions,27 in part
because it lacks any electoral connection from which to draw legitimacy. And for the ECJ the
question of public support bulks even larger than for most courts, since it has taken such a
forceful 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 the
most politically significant high courts in the world.29 It was also, until recently, largely
sheltered 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 functioning
of 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; and
surely 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 judicial
institutions? Since judges are not elected in Europe, electoral accountability is not relevant to
courts. Finally, to the extent that legitimacy is relevant to institutions like the European Court
of 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 direct
legitimacy; instead, its authority is derived from the political institutions that nominate its
jurists, fund its operation, and implement and obey its decisions. Thus, the entire concept of
mass 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 for
a 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 important
constraints on the actions of political and legal institutions. Institutions that attempt to impose
unpopular judgments on the mass public risk the expenditure of their political capital, with the
possibility 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 Justice
decision " 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 - an
attack keenly noticed by the Court.33'34 - he surely did so after calculating the likely preferences
of the German people. We certainly do not claim an all-powerful role for the mass public in the
politics of the ECJ; but all political institutions, even judicial institutions, face considerable risk
when they ignore the preferences of the mass public.
Nor need the preferences of the mass public be particularly informed preferences for them
to have political consequences. One often hears derisive comments about the level of knowledge
of the mass public, with the claim typically being made that ordinary people confuse the

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 European Court of Justice with the Court of Human Rights, the International Court of Justice
or some other international tribunal. If people cannot even identify the city in which Court
works, then how can their views matter?
We do not and need not contend that citizens have well-founded, highly factual
understandings of institutions such as the European Court of Justice. Indeed, we do not believe
that American citizens have such highly articulated views of the U.S. Supreme Court, the most
active and politically relevant high court in the world.35 But general impressions they often do
have. And these general impressions typically guide the reactions of citizens to the actual
political controversies that emerge in politics. Perceptions that an institution is legitimate, that
it has the authority to make the decisions it makes, do not require a great deal of understanding
of the actual operation of the institution, even though such perceptions and expectations can
become extremely important to the effective functioning of courts. When the conduct of a
political institution penetrates the consciousness of the mass public, factual knowledge may
often be the least important variable in the political equation.
Until fairly recently, the Court has been relatively successful in avoiding the political
limelight in Europe. Two things, however, have transpired to make the Court a more public
institution.36 First, elites have come to appreciate the enormous political power of the European
Court of Justice. Led by the trenchant analyses of scholars, political and legal observers now
understand that the Court has been successful in Grafting the legal infrastructure essential to the
political and economic integration of Europe.37 The Court has, of course, achieved far more
than the solution to esoteric commercial law problems; many of its decisions are quite relevant
to 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 all
of the institutions of the European Union.39 This concern for democratic legitimacy affects the
European Court of Justice just as it affects the other institutions of the Union. The expectations
and preferences of ordinary citizens of the European Union have become vastly more significant
for all the institutions of the Union. The European Court of Justice has not been immune to
this fever for democracy - should, for instance, the European Parliament have the right to
confirm nominations to the Court, in much the same way that the United States Senate must
confirm appointments to the U.S. Supreme Court?40 The Court certainly does not occupy
center stage in the drama that is the European Union, but concern over the institutional
legitimacy of the Court is significant and growing.
Finally, in defense in our claim for the importance of the mass public, there is some
dramatic empirical evidence of the visibility of the European Court of Justice to ordinary
citizens of the European Union. In Eurobarometer 39 (Spring 1993), respondents were asked
the following open-ended question: 'Which institutions of the European Community have you
heard 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 - the
institution is obviously salient to all who named it, but there is no doubt some additional

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 segment of the mass public that is familiar with the institution but for whom the institution did
not immediately spring to mind when asked the question. Therefore, we are not at all surprised
that the percentage of respondents who could offer the name of no European Union institutions
ranges 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 the
respondents could name no European Union institution. Second, the most salient EU
institution is clearly the European Parliament. In every country, more respondents named the
Parliament more often than any other institution. Yet, even here, in only a minority of
countries was at least half of the sample able to name the European Parliament as a European
Union institution. Third, and most remarkably from the perspective of this article, the second
most 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 is
nearly as salient as the Parliament. The ECJ is most salient in Luxembourg (the home of the
Court); but more than one-third of the Germans were able to mention the Court, and almost
a third of the Belgians named the ECJ. Finally, there is a great deal of cross-national variability
in all of these figures. The salience of the Court ranges from 8.3 percent in Italy to 47.6 percent
in Luxembourg, but even the salience of the European Parliament varies from 15.7 percent to
64.9 percent.
Has the European Court of Justice penetrated the consciousness of the mass publics of
the EU? In six of the countries of the European Union, at least a quarter of the people identify
the European Court of Justice as a salient EU institution. This is an impressive finding. And
surely many more Europeans have at least some awareness of the Court even though they might
not spontaneously identify the institution when asked about the European Union. Finally, the
European Court of Justice is certainly no more obscure than other European Union institutions
such as the Council and the Commission. The European Court of Justice has become a
reasonably 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 of
Justice. The first question to ask of our earlier research is whether the findings represent an
aberrant period in history of the Court. It is essential therefore to consider how opinion may
have changed since the fall of 1992.
A second significant limitation to our earlier work is that we were insufficiently attentive
to differences across institutions in levels of mass legitimacy. We found that the Court does not
enjoy a great deal of support among the mass public. But does the European Parliament enjoy
greater support? The assumption is often made that the Parliament is a fount of legitimacy for
all EU institutions,41 but this assumption requires empirical investigation. Moreover, can
national 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 the
national judiciaries both for case referrals and for the implementation of its decisions. It is
therefore prudent to consider the legitimacy of the national judiciaries in addition to the
European Court of Justice. Consequently, our purpose here is twofold. We first consider

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

Research Design
This 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 between
September 21 and October 15, 1992. We commissioned several questions concerning the
European 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 Eurobarometer
surveys are representative of the populations of the respective nationalities, aged 15 years and
over, in each of the countries.
The 1993 Eurobarometer Survey
Similarly, we were able to place some questions on the Court of Justice on the Autumn
1993 Eurobarometer. The methodology of this survey is in every respect identical to the 1992
EB.
The 1992-1993 Panel Survey
In the fall of 1993 we were also able to re-interview sub-samples of the 1992
Eurobarometer respondents. The re-interviews were by telephone, except in Ireland, Portugal,
and East Germany, where telephone penetration was not sufficiently high to insure
representative samples. We excluded Northern Ireland from the panel re-interviews, and, since
national law made it impossible to re-interview the Danish respondents, a fresh sample was
drawn in Denmark. A panoply of methodological issues concerning the panel is addressed in a
technical appendix available from the authors.
National High Courts
At several points in our survey, we asked the respondents their opinions about their
national high court. Unfortunately, which institution constitutes the highest court is not an
entirely unambiguous question in some of the countries of the EU.42 In France, the
Constitutional Council exercises a form of judicial review; other courts do not. Nevertheless, we
chose the Cour de Cassation as our target because we thought, and others advised, that some
French people might not accept the designation of the Constitutional Council as a court. In
several of the countries, two or more high courts divide the functions performed by the United
States Supreme CouTt, one of which exercises constitutional review. These include Germany,
Greece, Portugal, Spain, and Italy. For these nations, we designated the constitutional court as
the high court. In the remainder of the nations in the European Union, we have opted for the
highest court exercising judicial review, or, in its absence, the highest court exercising appellate
review. These institutions are:
Belgium Hof van Cassatie (Cour de Cassation)
Denmark H(4jesteret
France Cour de Cassation
German Federal Republic Bundesverfassungsgericht

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 Greece Anotato Eidiko Dikasterio
Ireland Supreme Court of Ireland (Chuirt Uachtarach)
Italy Corte Constituzionale
Luxembourg Cour Superieure de Justice
The Netherlands De Hoge Raad der Nederlanden
Portugal Tribunal Constitutional
Spain Tribunal Constitucional
United Kingdom Court of Appeal

Results — Support for the European Court of Justice

The 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 has
any 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 Britain
to a high of 60.8 percent in France. In Greece, Italy, Spain, France, Portugal and East Germany
more than 50 percent of the respondents have no specific evaluations of the Court (i.e., they
were undecided).
Is this inability to judge the European Court of Justice due to the fact that this is an EU
institution or is it a more general lack of legal awareness among the mass public? We can get
some purchase on this question by considering how ordinary people evaluate the performance
of 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 their
national judiciary than toward the European Court of Justice; and in some countries the
differences 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 appreciable
difference in the ability of citizens to judge the European Court of Justice and the national high
court. For instance, in Belgium, Ireland, Luxembourg, Portugal, and Great Britain, the difference
in the percentage undecided is less than 10 percent. In many countries, the inability to judge
the European Court of Justice is likely a simple manifestation of the inability to judge national
judicial 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 least
somewhat satisfied with how the European Court of Justice has been working, where only 18.8
percent is dissatisfied. The only significant exception to this finding is in East Germany, where
18.8 percent of the respondents express some satisfaction, and 21.5 percent some level of
dissatisfaction. In general, then, to have an opinion about the work of the European Court of
Justice is to have a positive opinion of the institution.
The same is generally true of the national high courts — to the extent that citizens are
able to form judgments about their high courts, the judgments tend to be positive. Two

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 important exceptions stand out. First, the East Germans are the most dissatisfied of all residents
of the European Union with their high court. This no doubt reflects the general disillusionment
and 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 and
ineffectiveness so widespread within the Italian mass public. Indeed-, perhaps the interesting
point about the Italian figures is not that dissatisfaction is so high, which indeed it is compared
to the other countries of the EU, but that dissatisfaction is not higher - as surely it must be
with regard to other national political institutions in Italy.45
What can account for what we might generally term a 'positivity bias' in mass public
opinion? 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 citizens
have sufficient information to evaluate public institutions in these terms. Rather we suspect
that, for many, the response to our measure of specific support is a generalized orientation
toward the institution, not unlike presidential or ministerial popularity. Despite a growing
disenchantment with politics and politicians, most people are favorably predisposed to support
their political institutions and, with even a little positive reinforcement (or in the absence of
sustained negative reinforcement), these orientations are fairly easy to sustain. We suspect that
unless citizens have a specific reason to assert dissatisfaction with the performance of the
institution, they will emit positive responses. In this sense, dissatisfaction may well be a more
informed position than satisfaction, and, from the point-of-view of the institution, may be more
stable and threatening than satisfaction.
To be sure, the central focus of our research is not on judgments of the performance of
national and transnational judicial institutions. Indeed, the sort of attitude in which we are
primarily interested is diffuse support - standing behind the institution even in the presence of
dissatisfaction with the immediate performance of the institution. Consequently, we turn now to these
more basic commitments to the ECJ.
Diffuse Support
Diffuse support, as we have said, is support for an institution even when it produces
disagreeable outputs. 'Support' includes the willingness to protect the institution against threats
to its basic structure and function. One such attack often leveled against courts is the
manipulation and restriction of the jurisdiction of the institution, although the very existence
of courts is occasionally at stake as well.46
Are citizens of the European Union willing to support the European Court of Justice even
when it makes disagreeable decisions? Our earlier research suggests not: for most, disagreement
with the outputs of the institution readily translated into unwillingness to protect the
institution against threats to its existence. But, as we noted above, our initial survey on mass
attitudes toward the European Court of Justice went into the field in the midst of the row over
the ratification of the Maastricht Treaty. Since the fall of 1992, passions have subsided
considerably, with even the Danes reconsidering their rejection of the treaty; and in fact the
treaty has become law. It therefore is quite reasonable to ask whether the wrangle over
Maastricht contributed to an unusually low level of affect for the EC and its major judicial
institution, the European Court of Justice.
Table 3 reports an index based on the responses to our two basic questions measuring

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diffuse support for the European Court of Justice. The 1992 figures come from Eurobarometer
38.0; the 1993 figures from Eurobarometer 40.0, conducted with full probability samples in all
of the countries of the European Union in the fall of 1993. Following the methodology we
employed in our earlier analysis of the 1992 data,47 as well as the convention in analysis of the
attitudes of the mass public,48 we have identified the segment of the EU mass public that has
at least some level of awareness of the European Court of Justice - the attentive public.49 The
percentages of respondents in 1992 for whom it makes no sense to ask about their views of the
Court ranged from 55.3 percent in Portugal to 9.7 percent in Denmark. In 1993, these figures
ranged from 59.4 percent (Italy) to 8.8 percent (Denmark). Comparison of these data for the
attentive publics will allow us to determine whether there has been macro-level change in
evaluations 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, the
mean of the index in France was 2.59 in 1992; in 1993, it was 2.55. In none of these countries
does 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 is
perhaps because support was unusually depressed in 1992 by the fracas over the right of a
young Irish girl to travel to Britain to obtain an abortion.51 Note, however, that the proper
conclusion from a statistical point-of-view is that Irish opinion did not change between 1992 and
1993. Unfortunately for the friends of the Court, there is no evidence in these data that the
fury over the ratification of Maastricht temporarily depressed support for the high court in these
eight 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 the
Court declined from 1992 to 1993. Except in Northern Ireland, the differences are not great; the
strongest correlation is -.15 in Italy.52 In Northern Ireland, support for the Court declined more
substantially (r = -.20).53 Thus, these data point to declining mass legitimacy for the European
Court of Justice between 1992 and 1993 in nearly half of the countries of the EU, and perhaps
most ominously, in Germany.
We are unable of course to judge whether support for the Court was higher or lower in
the period prior to Maastricht. Our data are compatible with the hypothesis that Maastricht had a
lasting impact on the views of the mass public toward EC institutions, but the available data do not
permit us to know if Maastricht brought about a change in opinions, or whether Maastricht
reflected a change in opinions that had occurred at some prior time.54 Without further data, we
can only conclude that attitudes toward the Court in the midst of the Maastricht battle differed
little from attitudes somewhat after the row had subsided in about half of the EU, and declined
significantly (even if not substantially) in the other half.
Perhaps even more important, apart from the issue of change, support was not very
widespread in either year. Consider more closely The Netherlands, the most supportive country
in both years. In 1993, 38.8 percent of the respondents disagreed with the proposition that the
Court should be done away with if it started making a lot of decisions with which most people
disagree, in contrast to 51.4 percent who were not supportive of the Court. This most favorable

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 distribution of opinion is quite dissimilar to the opinion in the least supportive country - in
Spain, in 1993, fully 71.3 percent of the respondents would support the elimination of the
European Court of Justice if it makes disagreeable decisions (with only 17.5 percent supporting
the Court). Although there are vast differences of opinion among the mass publics in the
member states of the European Union, the average opinion in most of the countries is on the
non-supportive side of the scale (i.e., less than 3.0 on the five-point scale). In general, then, the
level of diffuse support for the Court is not very high. Dissatisfaction with the performance of
the Court is relatively uncommon, but to the extent that citizens of the European Union
become dissatisfied, there is only a small reservoir of goodwill in the mass public with which the
European 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 relative
stability in attitudes toward the European Court of Justice. On average, there is only slightly less
support for the Court in 1993 than there was in 1992. From the point-of-view of estimating
how secure the Court is as a political institution, this is an important finding.
But aggregate stability does not necessarily mean micro-level stability, and indeed
substantial change in individual attitudes is possible even when overall percentages and means
remain stable. The impression the data have created thus far is that people's attitudes toward
the Court are not changing significantly, or at least that they may not easily change. That
impression can only be confirmed with micro-level analysis of individual-level change. Turning
now to the panel data, we consider whether and how attitudes toward the Court changed from
1992 to 1993.
Table 4 reports change at the level of the individual respondent. The means and
standard 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 scores
indicate 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 in
1992. For this portion of the analysis we analyze all respondents who were interviewed in both
1992 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 between
responses 1992 and 1993 are rarely large (except perhaps in The Netherlands and Great
Britain).56 On the institutional support item, roughly one-quarter to one-third of the
respondents gave the same answers during both interviews. Thus, the overall stability in
aggregate opinion masks substantial micro-level change.
The nature of opinion change differs markedly across the countries of the European
Union. Consider the mean change scores in Table 4. In Greece, opinion toward the European
Court of Justice became considerably more favorable (mean = .41), with fully 50.6 percent of
the 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, Chancellor
Kohl 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

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29.8 percent expressing more favorable views. Finally, individual-level opinion change was
remarkably balanced in Luxembourg, Spain and East Germany. Quite different patterns may
be seen across the various nations.
Which is more important for the Court ~ the overall aggregate pattern of opinion
stability, 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 support
provides the institution a stable political environment within which to function. At the same
time, the importance of the individual-level instability in attitudes is in the possibility of rapid
opinion change, and especially change in the nature of the coalition most supportive of the
Court. This means that the Court may have some opportunity to build institutional support
through its decisions. On the other hand, to the extent that the opinions of individual citizens
are 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 - support
for 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 has
little legitimacy. But compared to what? Without data on mass assessments of other institutions
it is difficult to place these findings in perspective. It is useful, therefore, to engage in a bit of
cross-institutional analysis.
Analysts often assume that there are two primary sources of legitimacy for the European
Union. 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 of
course is now directly responsible to the people through regular elections. Thus, there have been
proposals - as yet unsuccessful" to require parliamentary confirmation of nominees to the high
bench.58 The assumption of these proposals is that the European Parliament has a store of
legitimacy itself, and can transfer that legitimacy to other political institutions. This power is
commonly referred to as a 'legitimacy conferring capacity'.59 60
National political institutions constitute a second potential source of legitimacy for
European Union institutions. National governments, which are directly accountable to the
people, are responsible for staffing the institutions of the European Union, including making
appointments to the European Court of Justice. Presumably, citizens unhappy with the
performance of European Union institutions can make their unhappiness known to their
governments. 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 in
legitimizing the Court of Justice.61 As Weiler62 has noted, 'Viewed from the perspective of
compliance [and hence of legitimacy] it makes all the difference that it is a nauonal court, even
a 'lower' (or 'lowly' one), and not the European Court of Justice itself which seeks the
Preliminary Reference, awaits the Preliminary Ruling and then uses it in its domestic final
decision'.63 In a sense, then, the national courts, in cooperating in the making and application
of European law, transfer some of their own legitimacy to the European Court of Justice, or at
least the European Court of Justice derives support from the (presumably) legitimate national
high courts. Thus, the European Court of Justice may be dependent upon other institutions for
its legitimacy.

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 Why, then, is the legitimacy of the European Court of Justice so limited? There are two
possibilities. First, the assumed transfer of legitimacy may not be successful. Second, the other
institutions themselves may suffer from their own shortfalls of legitimacy. If the European
parliament or the national high courts have little legitimacy themselves, then it is unlikely they
can do much to enhance the authority of the European Court of Justice. Thus, although we fully
recognize the limits of cross-sectional analysis to address what is inherently a longitudinal
process, we now consider the levels of support among the mass public for the European
Parliament and for the national high court.64
Table 5 reports the means of the diffuse support indices for the European Court of
Justice, the European Parliament, and the national high courts. As before, higher scores indicate
greater support for the institution. Also reported are the probabilities associated with a
difference of means test, eta, the curvilinear correlation coefficient, and R2 from regressions
using 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 three
support scores are equivalent - i.e., that they do differ beyond what might be attributable to
sampling variation. Applying this test to each set of institutions reveals that in five of the
countries in Table 5 (and possibly France as well) there are significant differences in attitudes
across institution.65 However, none of these differences is particularly large (perhaps excluding
Denmark, where institution explains 14 percent of the variance). For instance, in the western
portion of Germany, support is highest for the Bundesverfassungsgericht, and the differences
across the three institutions are statistically significant. Yet only 4 percent of the variance is
explained. Moreover, in Belgium, Italy, Spain, Ireland, Luxembourg, Portugal, and the eastern
portion of Germany, the level of diffuse support expressed is indistinguishable across
institutions. To be sure, the mean support score for the European Court of Justice is typically
the lowest (except in Spain, The Netherlands, and Great Britain), but generally it is remarkable
that attitudes toward the European Court of Justice are not more distinguishable from attitudes
toward the other institutions.
This conclusion is brought even more strongly home by the coefficients reported in Table
6. The dependent variable there is the average diffuse support score for the European Court of
Justice. The independent variables are dummy variables (dichotomies) representing first the
national high court and then the European parliament. The statistics reported are the overall
goodness of fit of the equation (R2), which is an indication of the degree to which attitudes
toward the three institutions are distinctive, and probabilities from a student's t test of the null
hypothesis that attitudes toward the national high court and the parliament differ from
attitudes 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 the
European Court of Justice is associated with support for the European Parliament. This finding

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means that the European Parliament does not nave a legitimacy surplus it shares with the European Court
of 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 (and
probably France and Luxembourg as well) - support for the national high court is unrelated to
support for the European Court of Justice. Thus, the Court of Justice does not derive legitimacy
from the national judiciaries in these countries. For instance, in Belgium, 50.3 percent of the
respondents express low support for the European Court of Justice on the institutional
commitment item, but so too do 43.1 percent express low support for the Belgian Cour de
Cassation (Hof van Cassatie). The difference between the two percentages is too small to
sustain the hypothesis that the Cour de Cassation has a legitimacy surplus it can somehow
transfer to the European Court of Justice.
Only in Denmark, West Germany, Greece, The Netherlands, and Great Britain is there
clearly a greater supply of legitimacy in the national high court than in the European Court of
Justice. For instance, in Denmark, 46.7 percent of the respondents expressed low institutional
commitment for the Court of Justice, but only 22.4 percent expressed low support for the
Htijesteret. A difference of this magnitude suggests there is indeed more support for the Danish
high court even if there is little evidence that the legitimacy of the national judiciary has been
transferred to the Court of Justice.
These findings can be summarized quite simply. We have discovered no evidence in any
of the countries that the European Parliament has a surplus of mass legitimacy that it can
transfer to the European Court of Justice. Nor do the national high courts possess a repository
of 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 high
courts do have a store of support available. We find little evidence, however, of an actual
transfer 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 not
widespread. Among those who know enough to form an opinion on the Court's activities, there
is considerable satisfaction with the performance of the Court. Yet, for most people, this specific
support has not been transformed into diffuse support. The implication of this is that the Court
will generate support from its constituents only to the extent that its decisions are pleasing. To
the extent the European Court of Justice is required to make a series of controversial decisions
that attract the attention of the mass public, it may well find itself with only a small reservoir
of good will within the mass public.
Are our earlier findings on levels of support for the Court of Justice unrepresentative because the
survey 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

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 has eroded since the crest of the Maastricht row. Without sustained, longitudinal analysis, it
is 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 an
unusually 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 the
low institutional legitimacy of the Court. Opinions change in part due to whether recent
information about the Court has been favorable or unfavorable. This volatility is further
evidence that the Court rests on a precarious bedrock of support. To the extent it performs
well, support will be forthcoming. To the extent it becomes enmeshed in controversial legal
disputes, its support is certainly at risk. This volatility presents both opportunities and
challenges for the Court.
Can the European Court of Justice rely upon the European Parliament or the national
high 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, the
national high courts have no surplus of legitimacy either. And even where the national
high courts are more legitimate than the European Court of Justice there is little evidence
that legitimacy has been or can be successfully transferred to the ECJ. The Court must
therefore rely upon other sources for its basic legitimacy.
Perhaps the most important question for the Court — and the question we cannot as
yet answer — is how the store of legitimacy can be increased. Our own view is that the
decisions of the ECJ have often been to the great benefit of ordinary citizens of the EU, but
that the Court has been insufficiently attentive to the need to communicate directly with the
mass public, rather, being content to try to borrow legitimacy from other political
institutions. Generally, those who know something about the Court, tend to view it
favorably. Diffuse support emerges primarily from the slow accretion of positive images of
institutions. Especially since the Court has the ability to associate itself with valued symbols
such as justice, equality, and fairness, it cannot but profit from a careful effort to inform the
European mass public of its activities." Whatever the Court may do on this score, it is clear
that the days of the calculated anonymity for the institution have passed, that opinions will
be formed, and that the possibility exists for the Court to limit or erase its democratic
deficit.67
Many scholars and members of the Court recognize the treacherous waters the ECJ must
navigate in the coming years. Thus, in a recent editorial, the editors of a prominent legal
journal remarked:
Of course, criticism of individual Court decisions is perfectly legitimate, also on
a political level. Quite a different matter, however, is a more general attack on
the functioning of the Court, its methods of interpretation and the manner in
which it finds the law. The political level is not the most appropriate one for
such a debate. Governments have much to lose and little to gain from an exercise
that risks undermining the authority of the Court and puts into question its role

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 in European integration. The authority of the Court largely depends on the
persuasive character of its decisions and their motivation, but also on the
perception 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 disturb
the balance.... The Community has no police force to get the European court's
decisions respected by and within Member States. The cooperation of national
courts 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 coming
under increasing attack from national politicians is perhaps the most important question left
unanswered by our analysis to date.

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 Endnotes
1. There is some ambiguity about what to call the nations of the EEC/EC/EU, given the
changes made in recent years by various treaties and the different communities (e.g., the Coal
and Steel Community) organized for different purposes. During the time our surveys went into
the field, the union was named the 'European Community'. We tend to refer to the 'European
Community' 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 ECJ
remains for official purposes the Court of Justices of the European Communities.

2. E.g., Richard C. Eichenberg, and Russell J. Dalton, 'Europeans and the European
Community: The Dynamics of Public Support for European Integration', International
Organization, 47 (1993), 507-534; and Matthew Gabel and Harvey D. Palmer, 'Understanding
Variation 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 European
Community: Models of Institutional Support' (paper delivered at the Annual Meetings of the
Midwest Political Science Association, Chicago, Illinois, 1993), 'The European Court of Justice:
A Question of Legitimacy', Zeitschnft fur Rechtssoziologie, 14 (1993), 204-222, and 'The
Legitimacy of Transnational Legal Institutions: Compliance, Support, and the European Court
of 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 European
Union' (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 Diffuse
Support'.

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 Judicial
Review in the European Community', The University of Chicago Law Forum, (1992), 81-92); others
use the phrase 'democratic deficit'. Irrespective of the term used, this describes a perceived
shortfall 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 for
this reference.)

7. We base this conceptualization on our earlier analysis of the legitimacy of the United States
Supreme 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 and
James L. Gibson, 'The Etiology of Public Support for the Supreme Court', American Journal of
Political Science, 36 (1992), 635-664; and James L. Gibson and Gregory A. Caldeira, 'Blacks and
the Supreme Court: Models of Diffuse Support'. Journal of Politics, 54 (1992), 1120-1145. See
also Tom R. Tyier and Gregory Mitchell, 'Legitimacy and the Empowerment of Discretionary
Legal 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 End
of 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 in
South Africa. In mid-March, ordinary inmates within South Africa's prisons rioted, burning their
cells, and in some instances killing fellow inmates. The cause of these riots was not prison
overcrowding, 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. The
prisoners argued that the election of 26-28 April is a constitutive election, one giving birth to
a new regime, forever relegating apartheid to the dustbin of history, and therefore that is
essential 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 and
Abortion Rights'; E. Allan Lind and Tom R. Tyier, The Social Psychology of Procedural Justice (New
York: 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 European
Court of Justice'; Tom R. Tyier and Kenneth Rasinski, 'Legitimacy and Acceptance of Unpopular
U.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 and
System 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 Law
Review, (1983), 379-426; and David W. Adamany, 'Legitimacy, Realigning Elections, and the
Supreme 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 empirically
between diffuse and specific support in the fashion Easton envisioned. On the inability to make
this distinction, see, for example, Ronald Rogowski, Rational Legitimacy (Princeton: Princeton
University Press, 1974); Loewenberg, 'The Influence of Parliamentary Behavior on Regime
Stability'; and Allan Kornberg and Harold Clarke, Citizens and Community: Political Support in a
Representative Democracy (New York: Cambridge University Press, 1992). For some scholars who
have made this distinction, with varying degrees of success, see, for examples, Walter F. Murphy
and Joseph Tanenhaus, 'Public Opinion and the United States Supreme Court: A Preliminary
Mapping of Some Prerequisites for Court Legitimation of Regime Changes', Law &. Society
Review, 1 (1968), 357-382; Caldeira and Gibson, 'The Etiology of Public Support for the
Supreme 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 for
the 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 Diffuse
Support', and 'The Etiology of Public Support for the Supreme Court"; and Gibson and
Caldeira, 'Blacks and the Supreme Court: Models of Diffuse Support', and 'The Legitimacy of
Transnational 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. R
Boynton, Representatives and Represented: Bases of Public Support/or the American Legislatures (New
York: Wiley, 1975); Easton, A Systems Analysis a/Political Life, and 'A Re-Assessment of the
Concept of Political Support'; and Walter F. Murphy and Joseph Tanenhaus, 'Publicity, Public
Opinion, 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 in
the 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, 'Jean
Monnet 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: Popular
Opposition to European Unification in the Wake of Maastricht', Journal of Common Market
Studies, 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 Union
After Maastricht' (paper delivered at the 1995 Annual Meetings of the American Political
Science 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 European
Unification in the Wake of Maastricht'; and generally Neil Nugent, Tfie Government and Politics
of the European Union, 4th edition (Durham, NC: Duke University Press, 1994), pp. 63-64.

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25. Shirley Williams, 'Sovereignty and Accountability in the European Community', Political
Quarterly, 61 (1990), 299-317; Brigitte Boyce, 'The Democratic Deficit of the European
Community', Parliamentary Affairs, 46 (1993), 458-477; Egon A. Klepsch, 'The Democratic
Dimension of European Integration', Government and Opposition, 27 (1992), 407-432; Juliet
Lodge, '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 Study
in judicial Policy-Making (Boston: Martinus Nijhoff Publishers, 1986), 'Between Self-Restraint
and 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/Chicago
Law Forum, (1992), 135-178; Mauro Cappelletti, 'Is the European Court of Justice Running
Wild?' 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 Michigan
Press, 1993), pp. 11-41; and Burley, 'Democracy and Judicial Review in the European
Community'.

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

27. E.g., Gregory A. Caldeira, 'Neither the Purse Nor the Sword: Dynamics of Public
Confidence 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 Brookings
Institution, 1992), pp. 123-156; Geoffrey Garrett and Barry Weingast, 'Ideas, Interests, and
Institutions: Constructing the European Community's Internal Market', in Judith Goldstein and
Robert Keohane (eds.). Ideas and Foreign Policy (Ithaca: Cornell University Press, 1993); Anne
Marie Burley and Walter Mattii, 'Europe Before the Court', International Organization, 47 (1993),
41-76; Trevor C. Hartley, 'Federalism, Courts, and Legal Systems: The Emerging Constitution
of the European Community', American Journal of Comparative Law, 34 (1986), 229-248, and The
Foundations of European Community Law, 3rd edition (Oxford: Clarendon Press, 1994); L. Neville
Brown 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 European
Communities, 5th edition (London: Butterworths, 1991); Mary L. Volcansek, 'The European
Court of Justice: Supranational Policymaking', West European Politics, 15 (1992), 109-121; and
Rasmussen, On Law and Policy in the European Court of Justice: A Comparative Study of Judicial
Policymaking.

29. T. Koopmans, 'The Role of Law in the Next Stage of European Integration', International
and 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 Court
of 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 and

Prospective of the European Court of Justice in the Area of Political Integration', and 'A Quiet
Revolution: 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 Rundschau
of 7 December 1992, see 'Die Europa-Richter stellen das deutsche Betriebsverfassungsgesetz auf
den Kopf, Handelsblatt, 13 October 1992; 'Die Leise Ubermacht', Der Spiegel, 30 November
1992 (signed by the Minister for Social Affairs, Norbert Blum), p. 102; and 'Dem EuGH auf die
Finger Geschaut', E G Magazin, No 5, 1993 (signed by P. Clever, see n 29). Threatening
allusions to the Court were also uttered by Chancellor Kohl in his speech to the Bundestag of
4 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 Court
of 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 Intergovernmental
Conference', 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 Its
Interlocutors', Comparative Political Studies, 26 (1994), 510-534.

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

38. Weiler ('A Journey to an Unknown Destination: A Retrospective and Prospective of the
European 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 supremacy
in 1964 - were socially sensitive'. He also argues that there has been *a growth in the number
of 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 and
commentaries, debates in the European Parliament, and considerable attention from the mass
media in Europe.

40. Over time, the European Parliament has repeatedly clamored for more influence
over the selection of ECJ judges. For instance, a 1982 resolution of the EP expressed the view
that the parliament should be involved in the appointment of ECJ members, one version of
which would be confirmation. The EP in its draft of the TEU (1984) suggested that half of the
members of ECJ should be appointed by the EP and half by the Council. In 1993, the EP's
Rothley Report endorsed the proposal that judges should be elected by the EP and the Council
for 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 ('Democracy
and Judicial Review in the European Community', pp. 81-82): 'In a Community with superficial
equivalents to a national executive, legislature, and judiciary, enhanced'democracy' has, not
surprisingly, 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, strengthening
the Parliament's voice in the Community legislative process will strengthen the voice of the
people'. See also Lenaerts, 'Some Reflections on the Separation of Powers in the European
Community'; Juliet Lodge, 'Transparency and Democratic Legitimacy', Journal of Common Market
Studies, 32 (1994), 343-368; Featherstone, 'Jean Monnet and the 'Democratic Deficit' in the
European 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 of
Judicial Power (New York: New York University Press, 1994); Volcansek, "The European Court
of Justice: Supranational Policymaking'; C. Neal Tate, 'Judicial Institutions in Cross-National
Perspective: Toward Integrating Courts into the Comparative Study of Polities', in John R.
Schmidhauser (ed.), Comparative Judicial Systems (London: Butterworth's, 1987); Martin Shapiro
and Alee Stone, Special Issue of Comparative Political Studies, Shapiro and Stone 1994, and the
Special 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 the
institution. Thus, we see it as entirely comparable to the popularity of a president or prime
minister. It need not be based on much information; nor are such judgments likely to be very
stable.

44. See, for examples, Michael Minkenberg, 'The Wall after the Wall: On the Continuing
Division 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 West
Germany', 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 in
the Germany Political System', Comparative Political Studies, 26 (1994), 470-491.

45. Maria Elisabetta de Franciscis and Rosella Zannini, 'Judicial Policy-Making in Italy: The
Constitutional 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 Court
and 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 the
U.S. Supreme Court in the 1930s (e.g., Gregory A. Caldeira, 'Public Opinion and the Supreme
Court: 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 Walter
F. Murphy, Congress and the Court (Chicago: University of Chicago Press, 1962); and C. Herman
Pritchett, Congress Versus the Court (Minneapolis: University of Minnesota Press, 1961). On the
role 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', International
Political 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: A
Comparative 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 Diffuse
Support'.

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 from
the specific method we employed in 1992. In this analysis, we define the Court's attentive public
as 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 Court
of Justice. This method very closely approximates the figures reported in Table 2 in Caldeira and
Gibson, The Court of Justice in the European Union: Models of Diffuse Support', p. 362). In
that analysis, a three-item index of support for the European Court of Justice was used and
hence the definition of the attentive public segment of the sample required substantive replies
to all three of the items.

50. Since we are analyzing a large of cases within each country, we deem differences that would
occur 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', Parliamentary
Affairs, 47 (1994), 203-221.

52. On the first item in the index, 35.6 percent of the Italian attentive public gave answers
supportive 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 of
Integration: France and the Union After Maastricht', notes that opinion in France shifted against
the EU well before the Maastricht crisis.

55. That is, for this and the subsequent analyses we rely on the entire panel data set, not just
the attentive public. We have adopted this strategy for several reasons, some theoretical, others
practical. Note that by 1993, all respondents had been exposed to information about the
European Court of Justice, if through no other vehicle than the interview in 1992. Thus, it could
not be said that the lack of an opinion toward the Court was a function of not even knowing
that 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 effective
sample sizes considerably. As a practical matter, the analysis of cross-institutional differences in
support becomes intractable if the data must be screened for awareness of each institution. For
the analysis of individual-level stability presented below, we added a control variable for the
degree to which the respondent had formed an opinion about the Court. The inclusion of that
variable resulted in trivial changes in the analysis in nearly every country. To the extent that our
findings are biased because of this methodological decision, it is probably in the direction of
over-estimating stability (because the respondents with no opinion of the Court in 1992 and
1993 will appear to be stable). Finally, it should be noted that 61.5 percent of those claiming
not to be aware of the Court in 1992, claimed some level of awareness in 1993, and that of
those claiming no awareness in 1993,53.6 percent claimed some level of awareness of the Court
in 1992. Clearly, it is not a simple matter to construct an attentive public subsample of the panel
data.

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 degree
of unreliability in the regressor'. Gregory Markus, Analyzing Panel Data (Beverly Hills: Sage
University 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 the
European Parliament to legitimize the European Union see Williams, 'Sovereignty and
Accountability in the European Community'; and Lodge, 'Democratic Legitimacy and European
Union'. For a complete analysis of the democratic deficit in the EP see Cees van der Eijk, Mark
N. Franklin, et al.. Choosing Europe? The European Electorate and National Politics in the Face of
Union (Ann Arbor: University of Michigan Press, 1996).

58. See footnote 40.

-27-
59. Cf. Jeffrey Mondak, 'Perceived Legitimacy of Supreme Court Decisions: Three Functions
of Source Credibility', Political Behavior, 12 (1990), 363-384. 'Substantive and Procedural
Aspects of Supreme Court Decisions as Determinants of Institutional Approval', American Politics
Quarterly, 19 (1991), 174-188, and 'Institutional Legitimacy, Policy Legitimacy, and the
Supreme 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'; and
Charles 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 legitimize
decisions of the state. For a recent discussion of this literature see Jack Knight and James
Johnson, 'Aggregation and Deliberation: On the Possibility of Democratic Legitimacy', Political
Theory, 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 the

European 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 Mishler
and Richard Rose, 'Support for Parliaments and Regimes in the Transition Toward Democracy
in Eastern Europe', Legislative Studies Quarterly, 19 (1994), 5-32; John R Hibbing and Samuel
C. Patterson, 'Public Trust in the New Parliaments of Central and Eastern Europe', Political
Studies, 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 at
the 1995 Annual Meetings of the American Political Science Association, Chicago, Illinois). For
an earlier study of attitudes toward the European Parliament see Oskar Niedermayer, 'Public
Opinion 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 statistical
significance.

-28-
66. See Caldeira and Gibson, The Court of Justice in the European Union: Models of Diffuse
Support'.

67. Some commentators have already noted that the Court has become more cautious and
deferential in its decisions. See for example Editorial Comment, 'Quis Custodiet the European
Court 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; and
Norbert Reich, The 'November Revolution' of the European Court of Justice: Keck, Meng, and
Audi 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 European
of 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 the
European Court of Justice.
Table 2. Satisfaction with Judicial Decisions, European Court of Justice and
National High Courts, 1993

Level of Satisfaction

Not at Not
all 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 say
you are very satisfied, somewhat satisfied, not very satisfied or not satisfied at all with
the 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 not
satisfied at all with the way the (HIGHEST COURT OF YOUR COUNTRY) has been
working?
a
Cross-national differences, 1992: eta = . 2 0 , p < . 0 0 0 0 .
b
Cross-national differences, 1993: eta = .17, p < . 0 0 0 0 .

*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 of
decisions that most people disagree with, it might be better
to do away with [it] altogether.
The right of the European Court of Justice to decide certain
types of controversial issues should be reduced.
Note: p = probability, based on a difference of means F test
ns = not statistically significant at .05.
eta = curvilinear correlation coefficient
R2 = 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. Gibson
Cullen Distinguished Professor
Department of Political Science
University of Houston
Houston, Texas 77204

Gregory A. Caldeira
Professor
Department of Political Science
Ohio State University
Columbus, Ohio 43210

Vanessa Baird
Department of Political Science
University of Houston
Houston, Texas 77204

Prepared for delivery at the 1997 Annual Meeting of the Midwest Political Science
Association, April 10-12, 1997, Palmer House Hikon, Chicago, Illinois.
 ON THE LEGITIMACY OF NATIONAL HIGH COURTS

James L. Gibson
Gregory A. Caldeira
Vanessa Baird

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

The purpose of this research is to examine theories of diffuse support and institutional
legitimacy. In particular, we test hypotheses about the interrelationships among the salience of
courts, 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 mass
attitudes toward high courts in eighteen countries, utilizing twenty mass public surveys conducted
between 1993 and 1996. Because our sample includes many countries with newly formed high
courts, our cross-sectional data support several longitudinal inferences, using the age of the judicial
institution as an independent variable. Moreover, with twenty data points, we are able to conduct
analysis 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 by
no means sui generis.
•National high courts vary enormously in the degree to which they have achieved institutional
legitimacy.
• 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 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. Since
courts often rule against the interests of political majorities, we suspect that support is built through
satisfying 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, 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 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 by
developing support among successive minorities. To the extent that a national high court only appeals
to 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.
 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 support
for 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), Anna
Melich and Eric Marlier (both of the Eurobarometer) for their technical assistance. Without the
extraordinary support and collaboration ofKarlheinz Reif (Director of the Eurobarometer) we could
not have brought this project to fruition. None of these people nor any agencies bears any
responsibility for the results or interpretations.
The paper also uses data from a collaborative project that grew out of the Law and Society
Association'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 were
responsible for the development and implementation of the research design. Funding for the project
was provided by the (U.S.) National Science Foundations (SES 92 13237 and SBR 93 11403) and
the National Council for Soviet and East European Research (#810-07). Our European
collaborators 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 Mikhail
Matskovsky of the Institute of Sociology, Russian Academy of Sciences, were instrumental in
conducting the Russian portion of the research. Another portion of the paper relies on data collected
with support from the National Science Foundation (SES-9023565), die Advanced Research
Program (003652-164), the College of Social Sciences and the Limited-Grant-in-Aid program at
the University of Houston, and the USSR Academy of Sciences. Without our collaboration with
Gennady Denisovsky, Polina Kozyreva, and Mikhail Matskovsky of the Institute of Sociology, USSR
Academy 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 on
an earlier version of this paper. We assume complete responsibility for all interpretations and
conclusions in this paper; none of these colleagues or agencies necessarily endorses our findings.
 ON THE LEGITIMACY OF NATIONAL HIGH COURTS

James L. Gibson
Gregory A. Caldeira
Vanessa Baird

P
erhaps 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); and
Jacob et al. (1996). In his review of important research questions in the contemporary study of
comparative politics, Rogowski (1993) fails to mention law and courts, let alone discuss the small
body of relevant literature. The inattention to law and courts in comparative politics is the rule
rather 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 may
actually enhance the power ofnational courts, since the European Court of Justice has fostered
European law primarily through the national judiciaries (e.g., Weiler 1994). Regarding
institutional legitimacy, Maher has argued that (1994, 234): "The national courts are essential to
the effectiveness of Community law, not only to bring Community rights to Community nationals
but 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

3
A. quick review ofTate and Vallinder (1995a)—the most impressive collection of essays on judicial
systems around the world—reveals just how little attention has been devoted to the relationships
between judicial institutions and their mass publics. In addition, Jacob et al. (1996) pay precious
little attention to this matter. For an exception, see Gibson and Caldeira, who have reported a
series 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 between
Jt-

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 of
collaborators) sought to extend their studies of public support for die U.S. Supreme Court to other
polities, including Ireland, West Germany, Argentina, Canada, and Australia (see Murphy,
Tanenhaus, and Kastner 1973). This project failed for lack of funding. Murphy executed a survey
of elites in Ireland, and the Germans completed studies of both elite and mass opinion, but nothing
came 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 samples
of ordinary citizens are being studied), but also to such crucial issues as the ways in which key
concepts (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 United
States in 1980 of .52; Caldeira and Gibson, using 1987 data, report a correlation of .05; and Lau
and Redlawsk (1996) claim a correlation of .34 in 1992. Indeed, in their causal analysis of the
1992 data, they claim that diffuse support was negatively related to specific support, and strongly
so! Measurement difficulties are simply too severe to warrant drawing any substantive conclusions
about 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

7
1n general, those who arc better educated and more interested in politics arc more aware of
political institutions and arc more exposed to the political norms dominant in the system (cf. Zailer
1992). On this view of the sources of attitudes, citizens develop positive views of national high
court 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.

8
We note an important exception to this point: institutions that function for a long period of time
in 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 the
institution 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 legitimate
institution 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 of
1996. Since such a small percentages of the respondents were interviewed in 1996, we refer to
these 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 Court
Denmark Hojesteret
France Cour de Cassation
German Federal Republic Bundesverfassungsgericht
G reece Anotato Eidiko Dikaste rio
Hungary Hungarian Supreme Court
Ireland Supreme Court of Ireland (Chuirt Uachtarach}
Italy Corte Constituzionale
Luxembourg Cour Supeneure de Justice
The Netherlands De Hoge Raad der Nederlanden
Poland Supreme Court
Portugal 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 of
West European Politics (July 1992) devoted to courts in Western Europe—"Judicial Politics and
Policy-Making in Western Europe."

14
 Russia Supreme Court of the Russian Federation
Spain Tribunal Constitutional
United Kingdom Court of Appeal
United 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

13
European law puts this statement about national courts without the power of judicial review in
a different light. So, for example, although the Courts of Appeal do not have the power to
invalidate a parliamentary law in conflict with the "Constitution," they may do so if it is in conflict
with 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 interpreting
the 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), that
is, one of the high (NATIONALITY) courts? Would you say you are very aware, somewhat
aware, not very aware or have you never heard of the (HIGHEST COURT OF YOUR
COUNTRY)?"

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

15
As Lau and Redlawsk (1996, 3, emphasis in the original) argue: "Thus, members of the public
may agree or disagree with actions of officials or institutions, but that agreement or disagreement
must be predicated on some awareness of die policy outputs of those officials and institutions. This
is a necessity ofdefinition -- an unaware citizen cannot offer specific support, cannot support or
oppose policies that are unknown." The same argument can be made about diffuse support.
16
In the 1995 survey, the question read: "From what you have heard or read, would you say that
you are very satisfied or not satisfied at all with the way the (HIGHEST COURT OF YOUR
COUNTRY) has been working?" In the 1993 survey, the question did not refer to "what you have
heard or read." Instead it read as follows: "Now, returning to the (HIGHEST COURT OF
YOUR COUNTRY), would you say that you are very satisfied or not satisfied at all with the way
the (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-
18
hundred point scale 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

17
It 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 trom
degenerate variance in some countries, which would also account tor the relatively weak loading
of the item
18
We 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 die
frequencies on die variables from country differences attributable to differences in the weighting
of 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

19
Note 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-

20
We 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, in
general, 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 forms
of support. To the extent that die relationship is very strong, the measures may not be registering
the 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

21
The duplication of France and Spain in the macro-level data analysis creates certain statistical
problems since die observations are not, strictly speaking, independent. We have not implemented
the typical corrections for such dependence since we are little concerned with inferential statistics
in this analysis. In no sense are these twenty observations representative of any larger group of
courts, and we mindful indeed of the dangers of generalizing from this particular sample.
22
Hibbing and Theiss-Morse (1995) concluded that one of the things that inoculates the United
States Supreme Court from dissatisfaction is the lack of transparency in Court decision making
procedures. Because the methods used by the Court to make policy decisions are shrouded from
public scrutiny, the sort of disgust that characterizes perceptions of Congressional policy making
procedures does not arise. Ironically, their view is that the more transparent are democratic
institutions, 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.

23
This is contrary to some earlier work in other subfields. See for examples Fiske 1980; Skowronski
and 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

24
his relationship is not a function of the percentage of respondents unable to form an opinion
about the performance of the national high. The correlation between the percentage of people
without 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 the
relationship 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

25
There is some degree ofcurvilinearity in the relationship associated with skewness in the age of
the 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

26
And indeed the correlation between the age of the court and the rate at which awareness
translates 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 t h e
N a t i o n a l High Court

24 .79
.36

Satisfaction with
Court Outputs

. 57
. 42

Institutional ....___________..„_. Institutional

Salience ^09 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

27
We note as well that Hibbing and Theiss-Morse (1995) are not reticent about breaking apart
citizen attitudes toward the U. S. Congress. They show that people have separable views toward
a) their own member in the House, b) members as a collective, and c) the institution. Our proposal
is 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
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 Table 1. Awareness of National High Courts

Mote: The first five columns are percentages and total to 100 percent, across the
rows, 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 for
rounding errors.
Table 3. Support for National High Courts, Attentive Publics
 Table 3 . (Continued)

Note: The f i r s t three rows total to 100 percent, except for rounding errors.

Institutional Commitment: If the highest court of your country started making a lot
of decisions that most people disagreed with, it might be better to do away with thf
highest court of your country altogether.

Court Jurisdiction: The right of the highest court of your country to decide certair
types of controversial issues should be reduced.

Trust: The highest court of your country can usually be trusted to make decisions
that 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 reported
in 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 unstandardized
regression coefficient. Beta is the standardized regression coefficient; s.e. is th<
standard error of the unstandardized regression coefficient. R is simply the square
of 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 unstandardized
regression coefficient. Beta is the standardized regression coefficient; s.e. is the
standard error of the unstandardized regression coefficient. R is simply the square
of the s-tandardized regression coefficient.

* p < . 01.

** p < .001.