Michael A. Zilis
Associate Professor, University of Kentucky
AMERICAN POLITICS | Political Behavior | Law and Courts
Research
My research focuses on law and courts, political behavior, political communication, and race and politics. In addition to the publications below, some of my other ongoing work includes NSF-funded research, joint with Justin Wedeking, on new media and support for the rule of law; research joint with Joshua A. Douglas on elections in the midst of the COVID-19 pandemic; and research on police misconduct and trust in government.
Compliance and the Rule of Law in America
Under contract, Cambridge Elements in Experimental Political Scince
The Rights Paradox
Cambridge University Press
Summary: The US Supreme Court is the chief institution responsible for guarding minority rights and equality under the law, yet, in order to function authoritatively, the Court depends on a majority of Americans to accept its legitimacy and on policymakers to enforce its rulings. The Rights Paradox confronts this tension, offering a careful conceptualization and theory of judicial legitimacy that emphasizes its connection to social groups. The manuscript demonstrates that attitudes toward minorities and other groups are pivotal for shaping popular support for the Court, with the Court losing support when it rules in favor of unpopular groups. Moreover, justices are aware of these dynamics and strategically moderate their decisions when concerned about the Court's legitimacy. Drawing on survey and experimental evidence, as well as analysis of Court decision-making across many recent high-profile cases, The Rights Paradox examines the implications for 'equal justice under the law' in an era of heightened polarization and conflict.
The Limits of Legitimacy: Dissenting Opinions, Media Coverage, and Public Responses to Supreme Court Decisions
The University of Michigan Press
Summary: When the U.S. Supreme Court announces a decision, reporters simplify and dramatize the complex legal issues by highlighting dissenting opinions and thus emphasizing conflict among the justices themselves. This often sensationalistic coverage fosters public controversy over specific rulings despite polls which show that Americans strongly believe in the Court’s legitimacy as an institution. The Limits of Legitimacy illuminates this link between case law and public opinion. It draws on a diverse array of data and methods, including a case study of eminent domain decisions, analyses of media reporting, an experiment on media messaging, and a study of the controversy over the Affordable Care Act, popularly known as Obamacare. The manuscript shows that the media tends not to quote from majority opinions. However, the greater the division over a particular ruling among the justices themselves, the greater the likelihood that the media will criticize that ruling, characterize it as "activist," and employ inflammatory rhetoric. The book demonstrates that the media’s portrayal of a decision, as much as the substance of the decision itself, influences citizens’ reactions to and acceptance of it.
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Ascriptive Traits and Perceptions of Impropriety in the Rule of Law: Race, Gender, and Public Assessments of Whether Judges Can Be Impartial.”
American Journal of Political Science, with Yoshikuni Ono
Perceptions of procedural fairness influence the legitimacy of the law, and because procedures are mutable, reforming them can buttress support for the rule of law. Yet legal authorities have recently faced a distinct challenge: accusations of impropriety based on their ascriptive characteristics (e.g., gender, ethnicity). We study the effect of these traits in the context of the U.S. legal system, focusing on the conditions under which citizens perceive female and minority judges as exhibiting impropriety, and how this compares with perceptions of their white and male counterparts. We find that Americans use a judge’s race and gender to make inferences about which groups the judge favors, whether she is inherently biased, and whether she should recuse. Notably, we find drastically different evaluations of female and Hispanic judges among the political right and left.
How Identity Politics Polarizes Rule of Law Opinions
Political Behavior
Popular support for the rule of law supplies political systems a basic ingredient required to function effectively, yet increasing tribalization and polarization in American politics may undermine this fundamental concept. Harkening back to Aristotelean concerns about influences that corrupt the rule of law, I argue that support for the concept stems in part from the intersection of legal policy and group identity in the political system. Using original survey experiments administered to representative and convenience samples, I find that the institutional legitimacy of the Supreme Court depends upon the groups that benefit from a ruling. I also find that the public’s acceptance of decisions is conditioned on group considerations. These findings raise basic questions about the health of the rule of law in the U.S. today.
Cognitive Heuristics, Inter-Institutional Politics, and Public Perceptions of Insulated Institutions: The Case of the U.S. Supreme Court
International Journal of Public Opinion Research
How do citizens form perceptions about the ideological priorities of insulated institutions? Currently, there is little consensus on how or even whether citizens form such views. Focusing on the Supreme Court, I argue that perceptions of institutional ideology are influenced by an inter-institutional heuristic, or the popular perception that the president directly and indirectly influences the Court’s ideological direction. Using a multiple method approach, I demonstrate that citizens perceive the Court’s preferences to coincide with the president’s, changing predictably in the aggregate and varying substantially at the micro-level. The findings speak to debates about polarization in politics, showing that citizens may perceive insulated institutions as ideologically extreme due to factors beyond their control.
Defying the Supreme Court: The Impact of Overt Resistance to Landmark Legal Rulings
Social Science Quarterly, with Xander Borne
We explore the political impact of overt resistance to judicial rulings. Focusing on the Supreme Court’s ruling in Obergefell v. Hodges and resistance by local county clerks, we model the relationship between resistance and public opinion. We demonstrate that disobedience affected the media’s framing of same-sex marriage, changing it from an issue framed primarily around equal rights to one in which alternative, anti-same sex marriage frames proliferated. We then use these frames to design an externally valid survey experiment, which we administer to a national sample. We find that resistance framing depresses support for same-sex marriage and increases support for defying the Court. The findings suggest that political resistance to the judiciary continues to resonate in the modern era, although not in the ways that many assume.
Judicial Legitimacy, Political Polarization, and How the Public Views the Supreme Court
Oxford Research Encyclopedia of Politics, with Rachael Blandau
As of 2020, the makeup of the U.S. Supreme Court consists of five generally conservative Republican-appointees and four generally liberal Democratic-appointees, one of the first times such a configuration has occurred in decades. In addition, contentious recent confirmation battles may have fundamentally altered public views about the Supreme Court. This essay examines the nature of public opinion about the Supreme Court, giving particular attention to Court legitimacy and its relationship with political polarization. We begin by discussing the importance of institutional legitimacy for political bodies – and courts in particular – and shows how scholarly conceptions differ from popular commentary on legitimacy. Thus, to understand the nature of public opinion towards the Court in a polarized era, one must distinguish between specific support, a type of short-term satisfaction or approval, and diffuse support, commonly known as institutional legitimacy Then, we turn to the literature on political polarization, considering the effects of partisan and ideological cleavages on support for the Supreme Court. With an eye towards recent developments, we pay particular attention to confirmation battles and contentious rulings. Finally, we chart a course forward for research on Supreme Court legitimacy in a time of political polarization.
The Conditional Effectiveness of Legislative Threats: How Court Curbing Alters the Behavior of (Some) Supreme Court Justices
Political Research Quarterly, with Alyx Mark
Summary: The separation of powers literature focuses on how the preferences of one branch constrain the behavior of its counterparts. Yet in much of this work, scholars do not address how responsive behavior varies across particular members. Focusing on Court curbing legislation in Congress, we develop a model of heterogeneous responsiveness. Our theory identifies two distinct mechanisms that underpin responsiveness in judicial behavior, implying that the chief justice and the most moderate (swing) justice are more likely than their colleagues to adjust their behavior in response to external threats from Congress. We find that these two justices are significantly less likely to vote to invalidate legislation than their colleagues during periods of heightened Court curbing and provide evidence that distinct mechanisms shape their behaviors. Additionally, we offer justice-specific evidence using a pre/post promotion analysis, demonstrating that Justice Rehnquist became responsive to Court curbing only after becoming chief justice. Our model highlights the micro-level underpinnings of judicial responsiveness to inter-institutional politics and, most broadly, speaks to the need for separation of powers models to differentiate the preferences of individual political actors when seeking to understanding inter-institutional responsiveness.
The Strategic Components of Rhetorical Choice: Negative Rhetoric in Supreme Court Opinions
Journal of Law and Courts, with Justin Wedeking
Summary: How do political actors use rhetoric after an initial policy battle? We explore factors that lead Supreme Court justices to integrate disagreeable rhetoric into opinions. Although disagreeable language has negative consequences, we posit that justices will pay this cost for issues with high personal significance. At the same time, we argue that integrating disagreeable rhetoric has a deleterious effect on the institution by reducing majority coalition size. Examining opinions from 1946-2011 using text-based measures of disagreeable rhetoric, we model the language of opinion writing as well as explore the consequences for coalition size. Our findings suggest serious implications for democratic institutions and political rhetoric.
Negative Media Coverage of the Supreme Court: The Interactive Role of Opinion Language, Coalition Size, and Ideological Signals
Social Science Quarterly, with Alexander Denison and Justin Wedeking
Summary: We offer a novel consideration of how judicial behavior influences Court coverage, examining when the media use negative language to cover the Supreme Court, and the consequences of this portrayal. We use regression analysis to examine over 1,000 news articles from 29 diverse outlets covering rulings from the 2014 term, using text-based measures of the Court and media’s negative coverage. We find that the Court sends an important signal of conflict when using negative language in its decisions, leading to increases in negativity in subsequent coverage. We also show that this effect is conditional upon both the degree of consensus and ideological signals the Court sends when it rules. The media’s treatment of the Supreme Court is in many ways a product of the conflict and ideological positioning that can be observed from the Court’s rulings. It suggests that court signals can attenuate media slant.
Minority Groups and Judicial Legitimacy: Group Affect Theory and the Incentives for Judicial Responsiveness
Political Research Quarterly
Summary: This paper introduces a new perspective into the literature on judicial legitimacy by examining the incentives for courts to cater to a popular majority and offering a novel model of legitimacy that has consequences for judicial responsiveness. The account integrates into the literature classic research on how strategic social groups shape public opinion. I theorize that citizens use their perceptions of the judiciary’s support for various social groups as a means to assess the institution overall. From this insight, I derive specific expectations about the conditions under which the Supreme Court’s protection of minority groups like gays and immigrants can damage its legitimacy. Using national survey data, I demonstrate that dislike for the beneficiaries of recent Court rulings systematically diminishes the institution’s legitimacy. The influence of these group-based considerations shapes individual-level attitude change and can be observed at various points in time.
Restraining the Court: Assessing Accounts of Congressional Attempts to Limit Supreme Court Authority
Legislative Studies Quarterly, with Alyx Mark
Summary: We propose a multilevel account of legislative Court curbing in order to assess existing explanations as to why such proposals come about. We argue that although Court curbing is commonly seen as the result of institutional conflict between Congress and the Supreme Court, it is best understood as a product of three interrelated factors: the individual motivations on the part of lawmakers, the partisan context in which they operate, and institutional disagreements between Court and legislature. We find strong evidence that the preferences of individual lawmakers and the dominant legislative coalitions in Congress drive Court curbing.
Disagreeable Rhetoric and the Prospect of Public Opposition: Opinion Moderation on the U.S. Supreme Court
Political Research Quarterly, with Justin Wedeking
Summary: Elite rhetoric is an important aspect of democracy, and understanding why elites alter their rhetorical tone is vital to understanding the nature of public-elite interaction. In this paper we identify the conditions under which insulated elites respond to public opinion by changing the amount of disagreeable rhetoric they emphasize. We examine Supreme Court opinions and theorize that the majority limits the use of disagreeable rhetoric - language with harsh, unpleasant, or negative connotations - in salient cases with the intention of dulling public opposition to rulings. We test our expectations on two levels, the first using a broad measure of public mood on a large sample of cases, and the second using a small sample with issue-specific public opinion measures. We find that as public opinion diverges from the Court, the majority tones down its disagreeable rhetoric, but only in salient cases.
Blurring Institutional Boundaries: Judges' Perceptions of Threats to Judicial Independence
Journal of Law and Courts, with Alyx Mark
Summary: The separation of powers literature provides mixed evidence about the likelihood that the federal courts respond to Congressional threats. Furthermore, little work has sought to adjudicate between the various threats Congress employs to ensure a compliant judiciary and the expected responses from the courts. In this paper, we take advantage of an underutilized source of data. We conduct original interviews with over two dozen sitting federal judges in order to distill how judicial actors interpret threats from Congress. We demonstrate that judges are less concerned with what they perceive as policy-based threats from Congress, and we posit that this is the case because they tend to understand these as a part of a legitimate system of checks and balances. Instead, judges interpret institutional threats, or attempts to curtail the institutional independence of the judiciary, as the most concerning tool wielded by Congress, as well as the least legitimate. Further, since most studies focus on the Supreme Court, we show that scholarship tends to ignore that all levels of the federal judiciary are attuned to the actions of Congress as a result of shared concerns about institutional maintenance.
The Political Consequences of Supreme Court Consensus: Media Coverage, Public Opinion, and Unanimity as a Public-Facing Strategy
Washington University Journal of Law & Policy
Summary: I conceive of consensus as a signal that has consequences for how the media and the public respond to rulings. I argue that high levels of support for rulings decided by large majority coalitions arise from the more favorable treatment the press gives these decisions. Because most citizens do not read judicial opinions and only sporadically pay attention to the Court, they are unlikely to have noticed the recent push for consensus. Yet consensus allows the judiciary to effectively legitimate decisions by increasing favorable media coverage of them. This is important because most citizens learn about Court decisions through the press. I theorize that the press uses voting signals from the Court when shaping coverage of rulings. The press is more likely to frame non-unanimous decisions in unfavorable terms than otherwise similar unanimous ones. This difference in coverage in turn informs public opinion about high profile rulings. The Court can foster support for its rulings by signaling its consensus to the press, which then offers favorable coverage that can increase popular approval of the Court’s actions.
Hitting the 'Bullseye' in Supreme Court Coverage: News Quality in the Court’s 2014 Term
Elon Law Review, with Justin Wedeking and Alexander Denison
Summary: We seek to understand the central components of coverage quality when it comes to the media’s reporting on the Supreme Court and specifically as it relates to the idea of citizen competence.We theorize that the quality of coverage is shaped by the relationship between the content of news reports and the Court’s opinion in a given case. We argue that quality coverage should convey, with some degree of accuracy, the substance of Court rulings to the public. We specifically focus on both the complexity and negativity of news coverage relative to the opinions they discuss. Our conceptualization implies that as coverage deviates markedly from written opinions on either of these dimensions, it falls short of the quality that is necessary to adequately inform citizens about what the Court has ruled.
Stepping on Congress: Congress, Courts, and Inter-Institutional Relations
Journal of Law and Courts, with Forrest Maltzman, Alyx Mark, and Charles Shipan
Summary: Legislative enactment is only one step in the life of a law. How a law shapes public life after enactment is frequently the result of whether the judiciary interprets the provisions contained in a law and how courts reconcile provisions within and across laws. Although it is well understood that the judiciary may be crucial in determining the effect that legislation has on public life, the factors that determine whether the judiciary ends up playing such a role are not well understood. We investigate why the courts, through statutory interpretation, address some major laws but not others and why some laws are addressed soon after enactment, while others are on the books for years before they reach the judicial branch. By investigating these factors, we develop a greater understanding of how the crafting of a law shapes the judiciary’s role in interpreting it. Our evidence shows that conditions at the time of enactment, plus features of the law, play a major role in determining whether, and when, a law reaches the courts. More specifically, both divided government and disagreement between the two chambers increase the likelihood that the courts will address significant laws. We also analyze the effects of severability clauses and find that their inclusion has no effect on this likelihood.
Copyright © Michael Zilis