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Keep Your (Horse) Hair On? Experimental Evidence on the Effect of Exposure to Legitimising Symbols on Diffuse Support for the High Court

Published online by Cambridge University Press:  01 January 2025

Ingrid Nielsen ,
Zoe Robinson Open the ORCID record for Zoe Robinson [Opens in a new window]  and
Russell Smyth
Ingrid Nielsen*
Affiliation:
Monash Business School, Monash University
Zoe Robinson*
Affiliation:
School of Politics and International Relations, Australian National University, Deakin University
Russell Smyth*
Affiliation:
Monash Business School, Monash University
*
The author may be contacted at ingrid.nielsen@monash.edu.
The author may be contacted at zoe.robinson@anu.edu.au.
The author may be contacted at russell.smyth@monash.edu.
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Abstract

Positivity theory posits that the courts rely on powerful legitimising symbols—such as elaborate judicial attire, honorific forms of address and imposing courtroom design—to ensure legitimacy in the eyes of the public in the absence of an electoral mandate. The argument is that such legitimising symbols evoke images of learning and pageantry and create the presumption that the process by which the decision was made was fair. Typically, positivity theory has been tested by examining whether people who have a greater awareness or knowledge of the courts express higher diffuse support for their decisions. Yet, such an approach assumes that those who know more about the courts will have greater exposure to their legitimising symbols. It does not directly test if exposure to the courts’ legitimising symbols causes people to be more acquiescent with decisions with which they disagree. In this article we use a survey-based experiment to examine if exposure to the legitimising symbols of the High Court makes people more willing to accept decisions of the Court with which they disagree. We assess whether the decision of the High Court Justices to simplify their attire, including, since 1988, ceasing to wear wigs when sitting on the Bench, has adversely affected the Court’s institutional legitimacy by removing some of the mystique associated with the decision-making process. We find that exposure to the Court’s legitimising symbols is associated with higher acquiescence with decisions which people disagree with, but the Court’s decision to simplify the Justices’ attire has not adversely affected diffuse support for its decisions. Our findings are important because the Court is reliant on maintaining legitimacy to enforce the rule of law. Our results speak directly to how the Court can best take steps to increase its institutional legitimacy in the eyes of the public.

Type
Articles
Information
Federal Law Review , Volume 48 , Issue 3 , September 2020 , pp. 382 - 400
Copyright
Copyright © 2020 The Author(s)

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Footnotes

Earlier versions of this article were presented at the Eighth Annual Conference of the Australian Society for Quantitative Political Science at the University of Melbourne and the Fourteenth Annual Conference of the Australian Law and Economics Association at Swinburne University. We thank participants in these conferences, as well as Catrina Denvir, Matthew Groves, Shiri Krebs and the anonymous reviewers for several helpful suggestions on earlier versions of this article, although the views expressed here and any errors are ours alone. This research was approved by Monash University Human Ethics Committee (Project 16996).

References

1. Marc A Loth, ‘Courts in a Quest for Legitimacy: A Comparative Approach’ in Nick Huls, Maurice Adams and Jacco Bomhoff (eds), The Legitimacy of Highest Courts’ Rulings: Judicial Deliberations and Beyond (TMC Asser Press, 2009) 267, 268 cited in Sarah Murray, ‘Preventative Justice, the Courts and the Pursuit of Judicial Legitimacy’ in Tamara Tulich (ed), Regulating Preventative Justice: Principle, Policy and Paradox (Routledge, 2017) 195, 202.

2. John M Scheb and William Lyons, ‘Diffuse Support, Specific Support and Attentiveness: Components of the Public’s Assessment of the Supreme Court’ (1999) 27(4) Politics and Policy 765.

3. James Gibson, ‘Legitimacy Is for Losers: The Interconnections of Institutional Legitimacy, Performance Evaluations and the Symbols of Judicial Authority’ in Brian Bornstein and Alan Tomkins (eds), Motivating Cooperation and Compliance with Authority: The Role of Institutional Trust (Springer, 2015) 81.

4. Gregory Caldeira and James Gibson, ‘The Etiology of Public Support for the Supreme Court’ (1992) 36 American Journal of Political Science 635, 658.

5. Alexander Bickel, The Least Dangerous Branch (Bobbs Merrill, 1962).

6. Benjamin Woodson, ‘The Dynamics of Legitimacy Change for the US Supreme Court’ (2018) 39(1) Justice System Journal 75, 75.

7. Russell Smyth and Vinod Mishra, ‘Judicial Review, Invalidation and Electoral Politics: A Quantitative Survey’ in Rosalind Dixon and George Williams (eds), The High Court, the Constitution and Australian Politics (Cambridge University Press, 2015) 18. In that study being counter-majoritarian is defined in the Dahl sense of propensity to strike down legislation enacted by the current government (or a previous government of the same political persuasion). See Robert A Dahl, ‘Decision-Making in a Democracy: The Supreme Court as a National Policy-Maker’ [1957] (Fall) 6 Journal of Public Law 279.

8. The power of judicial review could arguably be implied from Chapter III of the Constitution, which separates out judicial power from legislative and executive power. See George Williams, ‘Judicial Power’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 376, 377.

9. 5 US 368 (1 Cranch) 137 (1803).

10. Sir Owen Dixon, ‘Marshall and the Australian Constitution’ (1955) 29 Australian Law Journal 429, 425 states: ‘To the framers of the Commonwealth Constitution the thesis of Marbury v Madison was obvious. It did not need the reasoned eloquence of Marshall’s utterance to convince them that simply because there were to be legislatures of limited powers, there must be a question of ultra vires for the courts’.

11. Australian Communist Party v Commonwealth (1951) 83 CLR 1.

12. Australian Communist Party v Commonwealth (1951) 83 CLR 1, 262. See also Attorney General (WA) v Marquet (2003) 202 ALR 233, 24 (Gleeson CJ, Gummow, Hayne and Heydon JJ) ‘it is the courts, rather than the legislature itself, which have the function of finally deciding whether an Act is, or is not, within power’.

13. Alexander Hamilton, The Federalist Papers No 78 (Random House) 504.

14. Chief Justice Murray Gleeson, ‘Public Confidence in the Judiciary’ (2002) 14 Judicial Officers’ Bulletin 49, 49.

15. See, eg, James Gibson and Gregory Caldeira, Citizens, Courts and Confirmations: Positivity Theory and the Judgments of the American People (Princeton University Press, 2009).

16 Similarly, studies suggest this extends to when people are better informed of the operation of courts. Once they have procedures and practices explained to them, people become more accepting of both individual decisions and the courts as a whole. See, eg, Tom R Tyler, ‘Procedural Justice, Legitimacy and the Effective Rule of Law’ (2003) 30 Crime and Justice 283.

17. James Gibson and Michael Nelson, ‘Reconsidering Positivity Theory: What Roles do Politicization, Ideological Disagreement, and Legal Realism Play in Shaping US Supreme Court Legitimacy?’ (2017) 14(3) Journal of Empirical Legal Studies 592, 593.

18. On the symbolism of courtroom design more generally, see Linda Mulcahy, ‘Architects of Justice: The Politics of Courtroom Design’ (2007) 16(3) Social and Legal Studies 383; Judith Resnik and Dennis Curtis, ‘Representing Justice: From Renaissance Iconography to Twenty-First Century Courthouses’ (2007) 151(2) Proceedings of the American Philosophical Society 139; Norman Spaulding, ‘The Enclosure of Justice: Courthouse Architecture, Due Process and the Dead Metaphor of Trial’ (2012) 24(1) Yale Journal of Law and Humanities 311.

19. See Richard Edney, ‘Use of the Prisoners’ Dock Under Australian Criminal Law: Desirable Practice of Impediment to a Fair Trial?’ (2001) 25(2) Criminal Law Journal 194.

20. Gibson and Nelson (n 17) 593. It is termed ‘positivity theory’ because it is argued that exposure to legitimising symbols produces a positivity bias in favour of enhancing the legitimacy of the Court as an institution. See, eg, Gibson and Caldeira (n 15).

21. Gibson and Nelson (n 17) 593.

22. Tom Tyler, ‘Does the American Public Accept the Rule of Law—The Findings of Psychological Research on Deference to Authority’ (2007) 56(2) DePaul Law Review 661, 663.

23. James Gibson, Milton Lodge and Benjamin Woodson, ‘Losing, but Accepting Legitimacy, Positivity Theory and the Symbols of Judicial Authority’ (2014) 48 Law and Society Review 837, 838.

24. Bickel (n 5).

25. Exceptions were Starke J, for a time, and Murphy J, who did not wear a wig, when sitting on the High Court. See Graham Fricke, Judges of the High Court (Hutchinson, 1986) 106.

26. Ian Holloway, ‘Court Attire’ in Anthony Blackshield, Michael Coper and George Williams (eds), Oxford Companion to the High Court of Australia (Oxford University Press, 2001) 168.

27. See, in general, Ingrid Nielsen and Russell Smyth, ‘What the Australian Public Knows About the High Court’ (2019) 47(1) Federal Law Review 31.

28. Holloway (n 26) 168; Simona Kljun, ‘A Short History of High Court Robes’ (2017) 39 Bulletin (Law Society of South Australia) 14, 14. That United States Supreme Court Justices just wearing black gowns is a norm, rather than a rule. See Stephen C O’Neill, ‘Why Are Judges Robes Black?’ (2001) 119(7) Massachusetts Legal History 119, 121–2 who describes how the norm evolved. There have been a few exceptions to the norm. A notable instance is former Chief Justice William Rehnquist who added gold stripes to one arm of his robe in 1995—see Henry J Reske, ‘Showing His Stripes: Operetta Inspires Chief Justice to Alter His Robe’ (1995) 81 American Bar Association Journal 35. Justice Sandra Day O’Connor notes: ‘It was an unannounced departure: He simply surprised us with the change one morning. He said he had recently seen a Gilbert & Sullivan opera in which the lord chief justice wore a robe with gold stripes’—see Sandra Day O’Connor, ‘Justice Sandra Day O’Connor on Why Justices Wear Black Robes’, Smithsonian Magazine, November 2013 <https://www.smithsonianmag.com/history/justice-sandra-day-oconnor-on-why-judges-wear-black-robes-4370574/#exRvbBllPlwLJRXb.99>.

29. Holloway (n 26).

30. Kljun (n 28) 14.

31. See Richard Macey, ‘Judges Ready to Deliver Verdict on Calling It a Bad Horsehair Day’, Sydney Morning Herald (online), 16 July 2007 <https://www.smh.com.au/national/judges-ready-to-deliver-verdict-on-calling-it-a-bad-horsehair-day-20070716-gdqmkl.html>.

32. Brian Masters, ‘In His First Interview Since Being Sworn in as Lord Chief Justice, Lord Taylor of Gosforth Tells Brian Masters of His Aspirations’, Sunday Telegraph (London), 31 May 1992, 10.

33. Ron Swanwick, ‘Keep the Faith, Look the Part and Wear the Wig’ (2012) 56 (June) Hearsay <https://www.hearsay.org.au/index.php?option=com_content&task=view&id=1383&Itemid=48>.

34. See, eg, Damon Cann and Jeff Yates, ‘Homegrown Institutional Legitimacy: Assessing Citizen’s Diffuse Support for State Courts’ (2008) 36(2) American Politics Research 297; Sara Benesh, ‘Understanding Public Confidence in American Courts’ (2006) 68(3) The Journal of Politics 697; James Gibson, Gregory Caldeira and Lester Kenyetta Spence, ‘Measuring Attitudes Toward the United States Supreme Court’ (2003) 47(2) American Journal of Political Science 354; James Gibson and Gregory Caldeira, ‘Knowing the Supreme Court? A Reconsideration of Public Ignorance of the High Court’ (2009) 71(2) Journal of Politics 429; James Gibson and Gregory Caldeira, ‘Confirmation Politics and the Legitimacy of the US Supreme Court: Institutional Loyalty, Positivity Bias and the Alto Nomination’ (2009) 53(1) American Journal of Political Science 139; James Gibson, ‘The Legitimacy of the US Supreme Court in a Polarized Polity’ (2007) 4 Journal of Empirical Legal Studies 507; James Gibson, ‘New Style Judicial Campaigns and the Legitimacy of State High Courts’ (2009) 71(4) Journal of Politics 1285; Dino Christenson and David Glick, ‘Chief Justice Roberts’ Health Care Decision Disrobed: The Microfoundations of the Supreme Court’s Legitimacy’ (2015) 59(2) American Journal of Political Science 403; James Gibson and Michael Nelson, ‘Is the Supreme Court’s Legitimacy Grounded in Performance Satisfaction and Ideology’ (2015) 59(1) American Journal of Political Science 162.

35. Gibson and Caldeira, ‘Knowing the Supreme Court?’ (n 34) 437 (emphasis in original).

36. Nielsen and Smyth (n 27).

37. Ibid 32.

38. Shiri Krebs, Ingrid Nielsen and Russell Smyth, ‘What Determines the Institutional Legitimacy of the High Court of Australia?’ (2020) 43(2) Melbourne University Law Review (advance).

39. Gibson, Lodge and Woodson (n 23).

40. Ibid 849–50.

41. Ibid 853.

42. See, eg, Francine Sanders Romero, ‘The Supreme Court and the Protection of Minority Rights: An Empirical Examination of Racial Discrimination Cases’ (2000) 34(2) Law and Society Review 291.

43. Nielsen and Smyth (n 27) 36.

44. Straight-lining refers to the practice of providing the same answer to every question. The multiple-choice questions require one of five possible answers labelled A to E. A participant who straight lined through the questionnaire would, for example, answer ‘A’ to every multiple-choice question.

45. Brandon L Bartels and Christopher D Johnson, ‘On the Ideological Foundations of Supreme Court Legitimacy in the American Public’ (2013) 57(1) American Journal of Political Science 184, 189.

46. ‘World Values Survey Wave 6: 2010–2014’, World Values Survey (online) <http://www.worldvaluessurvey.org/WVSOnline.jsp>.

47. For previous research to use this four-item index, see James Gibson, Overcoming Apartheid: Can Truth Reconcile a Divided Nation? (Russell Sage Foundation, 2004); James Gibson, ‘Changes in American Veneration for the Rule of Law’ (2007) 56(2) DePaul Law Review 593; Gibson and Nelson (n 17); Krebs, Nielsen and Smyth (n 38).

48. Jeffrey J Mondak, ‘Developing Valid Knowledge Scales’ (2001) 45(1) American Journal of Political Science 224, 229–30.

49. Nielsen and Smyth (n 27) 44.

50. Gibson, Lodge and Woodson (n 23) 851.

51. This adopts the same approach as used in Gibson, Lodge and Woodson (n 23) 846–7.

52. Obviously, the High Court did not decide recent cases on these topics. Telling participants that it did and adjusting the outcome to oppose their stated preferences merely facilitated the experiment.

53. These four questions are the same as those asked in Gibson, Lodge and Woodson (n 23) in order to ascertain willingness to accept a decision of the Court with which the participant disagreed.

54. The 10 photos shown to participants in the wig treatment group, together with the description that appeared below each photo, were: (i) The first sitting of the High Court of Australia in 1903; (ii) the Justices of the High Court of Australia in 1952; (iii) the Justices of the High Court of Australia in the late 1970s; (iv) Chief Justice Marilyn Warren, former Chief Justice of Victoria; (v) Judge’s wig and law reports; (vi) the first three Justices of the High Court, 1903; (vii) Dame Roma Mitchell, Australia’s first female QC who often appeared before the Court; (viii) High Court of Australia, Canberra—Court Room 2; (ix) the High Court of Australia building in Canberra; and (x) the High Court of Australia in Canberra in session.

55. The 10 photos shown to participants in the no-wig treatment group, together with the description that appeared below each photo, were: (i) The Justices of the High Court of Australia in 2009; (ii) the Justices of the High Court of Australia in 2016; (iii) the Justices of the High Court of Australia in 2012; (iv) Susan Kiefel, Chief Justice of Australia; (v) the black robes worn in the Court by Justices (after 1988); (vi) the Justices of the High Court of Australia in 2008; (vii) Susan Crennan, Justice of the High Court 2005–2015; (viii) High Court of Australia, Canberra—Court Room 2; (ix) the High Court of Australia building in Canberra; and (x) the High Court of Australia in Canberra in session.

56. The 10 photos shown to participants in the control group consisted of a mix of people in business attire, random office buildings in Canberra and lecture theatres.

57. Dame Roma was the first woman to be appointed a Queens Counsel in South Australia (in 1962) and the first woman to be appointed a judge of the Supreme Court of South Australia in 1965. She was also the first woman to appear as counsel before the High Court (Meader v Busch (1938) 59 CLR 684). The photo that we showed participants is of Dame Roma attired as a judge of the Supreme Court of South Australia in 1965.

58. Gibson, Lodge and Woodson (n 23) 853.

59. James Gibson and Michael Nelson, Black and Blue: How African Americans Judge the US Legal System (Oxford University Press, 2018).

60. Krebs, Nielsen and Smyth (n 38).

61. Nielsen and Smyth (n 27).

62. Krebs, Nielsen and Smyth (n 38).

63. Nielsen and Smyth (n 27) 41–8.

64. Judges of the Federal Court wear robes without wigs, as do counsel that appear before them. See Georgina Schoff, ‘Farewell to the Wig’ (2016) 159 Victorian Bar News 38, 40.

65. ‘UK Supreme Court Throws Out Legal Dress’, BBC News (online), 21 November 2011 <https://www.bbc.com/news/uk-15816497>.

66. Emma Mead, ‘Is it Time to Ditch the Wigs?’, Burke Mead (online), 1 February 2017 <https://www.burkemeadlawyers.com.au/general-legal-information/time-ditch-wigs/>. For more details on Warren CJ’s statement that judges of the Supreme Court of Victoria were to no longer wearing wigs, see also ‘Wig Era Over in the Supreme Court’ (2016) 90(5) Law Institute Journal 10 <https://www.liv.asn.au/mobile/home/law-institute-journal/Article?NodeID=663377&NodeParentID=663371> where Warren CJ is recorded as stating, ‘The wearing of wigs represents the past and does not contribute to the administration of justice in a modern court in the 21st century’.

67. The transcript of the exchange between Bell J and counsel is reported here: Van Thoang Tran v Venture Solutions Australia (Supreme Court of Victoria, Bell J, 25 May 2016) <http://static1.1.sqspcdn.com/static/f/556710/27049205/1464578618617/Wigs_Bell_Victoria.pdf?token=R9uAUxhZM8ElS8T1sK566xIEy3w%3D>. It was widely reported in the media: see, eg, James Hancock, ‘Senior Lawyer Backs Victorian Chief Justice’s Ban on Barristers Wearing Wigs to Court’, ABC News (online), 27 May 2016 <https://www.abc.net.au/news/2016-05-27/victorian-lawyer-backs-ban-on-barristers-wearing-wigs-to-court/7451510>. Similarly, wigs were abandoned in Western Australia in 2009. In other state jurisdictions, much depends on whether it is a criminal or civil case with wigs typically worn in criminal cases, but not civil case: see Schoff (n 64) 40 for a detailed account of differing practices across jurisdictions.

68. While we primarily focus on the judges’ attire, the move from Queens Counsel (QC) to Senior Counsel (SC) and back again is also worth noting. Essentially, the move away from using QC was about modernisation and the vast majority of people moved to SC. Then the option of assuming the title of QC was returned and a huge majority of barristers took that up. Victoria, for example, introduced SC in 2000 and returned the option of QC in 2014 and about 89 per cent took up the option of being QC rather than SC. For example, Victoria’s most recently anointed silks have been given the option of adopting the Queen’s Counsel (QC) title: Felicity Nelson, ‘New Victorian Silks Given Choice of QC or SC’, Lawyers Weekly (online), 27 January 2015 <https://www.lawyersweekly.com.au/wig-chamber/16084-new-victorian-silks-given-choice-of-qc-or-sc>.

69. Krebs, Nielsen and Smyth (n 38).

70. Gibson and Caldeira, ‘Knowing the Supreme Court?’ (n 34) 430.

71. Anthony Mason, ‘The Courts and Public Opinion’ (2002) 11 Bar News 30.

72. Gerard Brennan, ‘Courts for the People—Not People’s Courts’ (1995) 2(1) Deakin Law Review 1.

73. Murray Gleeson, ‘Public Confidence in the Judiciary’ (Conference Paper, Judicial Conference of Australia, 27 April 2002) <http://www.hcourt.gov.au/assets/publications/speeches/former-justices/gleesoncj/cj_jca.htm>.

74. See, eg, The Highest Court (Australian Film Finance Corporation and Film Art Deco, 1988), in which the Court was interviewed in a documentary on the Court. Sir Anthony Mason has also regularly given interviews to promote understanding of the Court. One example is when his Honour was interviewed on the television program, Four Corners (ABC) to discuss media responses to the Mabo judgment (Mabo v Queensland (No 2) [1992] HCA 23). See ‘Judge Breaks Ranks to Lash Media Over Mabo CASE’, ABC News (online), 7 May 2012 <https://www.abc.net.au/news/2012-05-07/mabo-high-court-anniversary-judge-anthony-mason/3995060>.

75. ‘About the Justices’, High Court of Australia (online) <https://www.hcourt.gov.au/justices/about-the-justices>; ‘2018 Judgment Summaries’, High Court of Australia (online) <https://www.hcourt.gov.au/publications/judgment-summaries/2018-judgment-summaries>.

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