James L. Gibson (Washington University, St. Louis), Challenges to the Impartiality of State Supreme Courts: Legitimacy Theory and “New-Style” Judicial Campaigns (102:59-75):
Institutional legitimacy is perhaps the most important political capital courts possess. Many believe, however, that the legitimacy of elected state courts is being threatened by the rise of politicized judicial election campaigns and the breakdown of judicial impartiality. Three features of such campaigns, the argument goes, are dangerous to the perceived impartiality of courts: campaign contributions, attack ads, and policy pronouncements by candidates for judicial office. By means of an experimental vignette embedded in a representative survey, I investigate whether these factors in fact compromise the legitimacy of courts. The survey data indicate that campaign contributions and attack ads do indeed lead to a diminution of legitimacy, in courts just as in legislatures. However, policy pronouncements, even those promising to make decisions in certain ways, have no impact whatsoever on the legitimacy of courts and judges. These results are strongly reinforced by the experiment’s ability to compare the effects of these campaign factors across institutions (a state Supreme Court and a state legislature). Thus, this analysis demonstrates that legitimacy is not obdurate and that campaign activity can indeed deplete the reservoir of goodwill courts typically enjoy, even if the culprit is not the free-speech rights the U.S. Supreme Court announced in 2002.
Roger B. Myerson (University of Chicago), The Autocrat’s Credibility Problem and Foundations of the Constitutional State (102:125-139):
A political leader’s temptation to deny costly debts to past supporters is a central moral-hazard problem in politics. This paper develops a game-theoretic model to probe the consequences of this moral-hazard problem for leaders who compete to establish political regimes. In contests for power, absolute leaders who are not subject to third-party judgments can credibly recruit only limited support. A leader can do better by organizing supporters into a court which could cause his downfall. In global negotiation-proof equilibria, leaders cannot recruit any supporters without such constitutional checks. Egalitarian norms make recruiting costlier in oligarchies, which become weaker than monarchies. The ruler’s power and limitations on entry of new leaders are derived from focal-point effects in games with multiple equilibria. The relationships of trust between leaders and their supporters are personal constitutions which underlie all other political constitutions.
nt