The Legitimacy-Conferring Capacity of Constitutional Courts: Evidence From a Comparative Survey Experiment
Abstract
Can constitutional court decisions shape public opinion on a governmental policy? Previous
studies have focused on the US Supreme Court, which enjoys a high degree of public support as the
major resource of power for courts. In this study, we examine the extent to which courts can
influence public opinion regarding a government bill at European courts. First, we argue that the
public support for courts also allows them to move public opinion on policies into the direction of
their decisions. This works in both directions: they can confer legitimacy to a policy that they
support, but they can also de-legitimize a policy that they oppose. Second, we argue that this
mechanism strongly depends on the amount of support that a court receives. It only has an effect
for courts that possess a higher institutional legitimacy and among the group of citizens trusting a
court.
We test our arguments by combining a most different systems design for France and Germany
with a survey priming experiment on a school security bill. France and Germany are selected for a
most different systems design as they exhibit different institutional designs as well as different levels
of support for the court at the aggregate level. The survey experiment is implemented within large
national election surveys, the German Internet Panel and the French National Election Study. Both
experiments contain more than 2,600 respondents each. Our survey experiment primes for decision
outcomes and different institutions to understand whether there are differences between an
institution supporting and opposing a policy and between a court and alternative institutions.
Our findings confirm that with higher public support, courts can move the opinion of citizens to
both legitimize and de-legitimize a policy. This effect can be found at the aggregate level for a court
enjoying higher public support, but also at the individual level for respondents with higher trust in
the court. Interestingly, courts can even move the opinion of citizens with strong prior attitudes in
the opposite direction, if these citizens highly trust the court.
These findings have implications beyond the study itself. First, they confirm that the legitimacyconferring
effect can also be observed for European courts, not only for the US Supreme Court.
Second, they show that the relevance of a mechanism identified for a single case, like the US
Supreme Court, might only hold for specific conditions. As public support for courts strongly varies
across countries in Europe, we also expect the impact of any mechanism relying on public support to
strongly vary, as we can observe in our own analysis.