This Article critically examines the role of procedural justice in shaping public perceptions of the U.S. Supreme Court’s legitimacy, particularly in light of recent Court actions, including the leak of a major opinion and the increasing, potentially politicized, use of its shadow docket. Drawing from the procedural justice model—which posits that legitimacy is primarily founded on the decision-making processes and principled judgments of the Court—this Article investigates whether the decline in confidence experienced by the Court can be attributed, at least in part, to its shadow docket.
Utilizing an experimental survey conducted over three critical time points—coinciding with the leak of the Dobbs v. Jackson Women’s Health Organization decision, its subsequent announcement, and a period of procedural calm—this Article measures the public’s reaction to various procedural scenarios, including the usage of the emergency docket. Results indicate that while the use of the emergency docket doesn’t substantially erode the Court’s diffuse support, it does impact how much respondents approve of how well the Court is doing its job, significantly so when filtered through policy agreement. This Article further finds that the Court’s Dobbs decision strongly influenced perceptions, particularly among those aware of the leak or the opinion, with disagreement causing more pronounced and consistent negative effects than the partial positive effects from agreement.
These findings underscore the impact of the Court’s own behaviors on its perceived authority, suggesting that the justices’ actions, particularly their adherence to fair and transparent procedures, can bolster the Court’s legitimacy. As such, this Article highlights the urgent need for the Supreme Court to embrace resolving legal questions via due process in order to reaffirm its critical role in our democracy and regain public trust.
Taraleigh Davis & Sara C. Benesh,
Procedural Justice and the Shadow Docket,
Emory L. J.
Available at: https://scholarlycommons.law.emory.edu/elj/vol73/iss2/4