The Legitimacy-Conferring Capacity of Constitutional Courts: Evidence From a Comparative Survey Experiment

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Can constitutional court decisions shape public opinion on a governmental policy? Previousstudies have focused on the US Supreme Court, which enjoys a high degree of public support as themajor resource of power for courts. In this study, we examine the extent to which courts caninfluence public opinion regarding a government bill at European courts. First, we argue that thepublic support for courts also allows them to move public opinion on policies into the direction oftheir decisions. This works in both directions: they can confer legitimacy to a policy that theysupport, but they can also de-legitimize a policy that they oppose. Second, we argue that thismechanism strongly depends on the amount of support that a court receives. It only has an effectfor courts that possess a higher institutional legitimacy and among the group of citizens trusting acourt.We test our arguments by combining a most different systems design for France and Germanywith a survey priming experiment on a school security bill. France and Germany are selected for amost different systems design as they exhibit different institutional designs as well as different levelsof support for the court at the aggregate level. The survey experiment is implemented within largenational election surveys, the German Internet Panel and the French National Election Study. Bothexperiments contain more than 2,600 respondents each. Our survey experiment primes for decisionoutcomes and different institutions to understand whether there are differences between aninstitution 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 toboth legitimize and de-legitimize a policy. This effect can be found at the aggregate level for a courtenjoying higher public support, but also at the individual level for respondents with higher trust inthe court. Interestingly, courts can even move the opinion of citizens with strong prior attitudes inthe opposite direction, if these citizens highly trust the court.These findings have implications beyond the study itself. First, they confirm that the legitimacyconferringeffect 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 USSupreme Court, might only hold for specific conditions. As public support for courts strongly variesacross countries in Europe, we also expect the impact of any mechanism relying on public support tostrongly vary, as we can observe in our own analysis.