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Policy Disagreement and Judicial Legitimacy: Evidence from the 1937 Court-Packing Plan

Alex Badas

The Journal of Legal Studies, 2019, vol. 48, issue 2, 377 - 408

Abstract: Judicial politics scholars are currently engaged in a debate over whether policy disagreement with the Supreme Court causes individuals to view the Court as less legitimate. Traditional legitimacy theory makes the argument that policy incongruence does not affect legitimacy judgments. However, recent research challenges this assertion and demonstrates that incongruence is associated with diminished evaluations of the Court’s legitimacy. I contribute to this debate by analyzing public support for the 1937 Court-packing plan. The Court-packing plan is a unique context in which to test theories of legitimacy because the Court’s institutional structure faced a credible threat. I find that support for New Deal policies predicts support for the Court-packing plan, a desire to see Congress pass the plan, and wanting to limit the Court’s ability to exercise judicial review to invalidate acts of Congress. These results support the emerging notion that policy disagreement is associated with diminished legitimacy.

Date: 2019
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