Social Education 66(1), pp.30-33
©2002 National Council for the Social Studies
Barbara A. Perry
If some Americans lapsed into thinking that the Supreme Court of the United States was becoming irrelevant, the historic controversy over Election 2000 disabused them of that misconception. With the number of cases decided by full opinion now less than half of what it was just a decade ago, the court has simply garnered fewer headlines in recent years. Yet Americans, indeed the world, focused their attention on the Supremes as the justices grappled with litigation over the outcome of the presidential election. Talk about a teachable moment! Students wanted to know more about the Supreme Court, its justices, and the impact of their decisions on the nations most important electoral decision.
Bush v. Gore
With the benefit of hindsight, we can begin to analyze the crucial work of the nations highest court in Bush v. Gore1 and place it in the context of how the court presents itself to the American people. Commentators, pundits, scholars, politicians, and average citizens alike criticized, as the epitome of partisan judicial behavior, the courts ultimate 5-4 decision to stop the ballot-counting in Florida. Wasnt it more than coincidental, these critics noted, that the more conservative members of the Court (Rehnquist, Thomas, Scalia, OConnor, and Kennedy, all appointed by Republican presidents) voted to elect the Republican candidate despite the fact that Al Gore had received over 500,000 more popular votes? How could the court maintain its traditional legitimacy in the face of such criticism? Fortunately for the nations least democratic branch of government, it had developed a store of goodwill and political capital on which it could draw, as if it had saved for a rainy day. Justice David Souter, in a dramatic voice-over that concludes the courts film designed for visitors, sums up the reservoir of public trust that the Supreme Court has managed to amass throughout its history:
Most people are willing to accept the fact that the Court tries to play it straight. That acceptance has been built up by the preceding hundred justices on this Court, going back to the beginning. We are, in fact, trading on the good faith and the conscientiousness of the justices who went before us. The power of this Court is the power of trust earnedtrust of the American people.2
The most striking fact of the period since Bush v. Gore is how the justices, despite the bitterness displayed in their written opinions, have maintained a dignified public posture in explaining how the court will survive what Justice Ruth Bader Ginsburg (who wrote an angry dissent from the majoritys decision in the case) described as the December storm over the Supreme Court. In a speech that she delivered in Australia just two months after the decision, Ginsburg declared, Whatever final judgment awaits Bush v. Gore in the annals of history, I am certain that the good work and good faith of the U.S. federal judiciary as a whole will continue to sustain public confidence at a level never beyond repair.3
Even as early as the day after the Bush v. Gore decision, Justice Thomas kept a previously scheduled appointment to meet with high school students at the Supreme Court. In a session that C-SPAN broadcast, he explained how civil the justices are to one another, despite the differences among them. Justice Breyer repeated his colleagues description of the justices relations, using similar language, in an August 2001 address to the American Bar Association. Breyer reported, In the seven years I have been a member of the Court, I have never heard a voice raised in anger, or the use of any slighting remark, during any of the Courts discussion, no matter how contentious the case.4
How different from the other branches of government, where members of Congress, for example, take every opportunity to criticize one another, especially in the media. Justice Anthony Kennedy faced such criticism while representing the court, along with Justice Thomas, at an otherwise routine March 2001 congressional appropriations subcommittee hearing on the Supreme Courts annual budget request. Representative Jose E. Serrano (D.-N.Y.) launched an attack on the courts Bush v. Gore decision. Describing his mostly black and Hispanic constituents reaction to the case as angry, bitter, and disenchanted, he pointedly told the justices that by intervening in the disputed 2000 presidential election, You went and broke my heart.5
Kennedy, who at this point had already testified for an hour before the subcommittee on the smallest details of the Supreme Court buildings upcoming renovationall without notesbegan a dramatic soliloquy.6 He noted that the justices knew, even as they decided the presidential election case, that their opinion would provoke strong feelings among the American people. (They could not have thought otherwise when protesters for each side in the presidential race staged loud demonstrations at the courts very doorstep.) Launching an institutional defense of the tribunal he represented, Kennedy attempted to distinguish the court from the other two branches by virtue of its language, ethic, discipline, dynamic, grammar, and logic of the law. Thus, he contended, the Supreme Court would be judged on Bush v. Gore not by what the justices say after the fact, but by what we put in the appellate reports.
Kennedy also revealed the courts consideration of its institutional capital, observing,
Ultimately, the power and the prestige and the respect of the Court depend on trust. My colleagues and I want to be the most trusted people in America. How do you instill that trust? Over time you build up a deposit, a reservoir, a storehouse of trust. And when we make a difficult decision . . . you draw down on that capital of trust.
Kennedy then admitted, You must make sure that you are listening to the right voice, not the wrong voice. Ive been a judge for [more than] twenty-five years, and I know how hard it is to search for that voice and make sure youre doing whats neutral.
Kennedy then turned to the substance of Bush v. Gore, citing its two main themes: the fundamental right to vote, which the Florida Supreme Court had violated with its equal protection transgressions (by allowing varied counting criteria for the now-infamous chads), and the supremacy of the U.S. Supreme Court to decide such a case. On the latter contention, Kennedy grew particularly grave, observing that the justices did not bring [the election case to the Court]. . . . [I]t involved a constitutional issue of the gravest importance, decided 4 to 3 by a state court on a federal issue, . . . [and thus] it was our responsibility to take the case.7 Paraphrasing the closing refrain of Bush v. Gores per curiam8 opinion, Kennedy concluded, Sometimes its easy, so it seems, to enhance your prestige by not exercising your responsibility, but thats not been the tradition of our Court. Summing up his oration, he declared, Im confident that the people will understand the position that the Court was in and will trust the institution for what it is. A much subdued Serrano responded to Kennedys explanation by saying, I think you just went a long way [in speaking to the American people], and I certainly respect your comments.
A Stately Image
Kennedys remarks, as those of his colleagues, on Bush v. Gore represent a tradition as old as the court itselfa tradition of creating and nurturing positive images and symbols of the court that have helped it weather storms in its storied history. Despite notable controversies in the courts past (including Marbury v. Madison, McCulloch v. Maryland, Dred Scott v. Sandford, conflict over the New Deal, Brown v. Board of Education, Abe Fortass resignation, Roe v. Wade, publication of The Brethren and Closed Chambers, and Clarence Thomass nomination), the justices have managed to preserve an image of themselves as a priestly tribe.9 In fact, that image of majesty and mystery has allowed the court to endure occasional outrage from the people, the press, the president, and Congress. The court has cultivated positive symbolic impressions through the noble language of its opinions, the majestic emblems of its power and physical environment, and the honorable behavior of its justices and support personnel. Although recent academic literature10 portrays judges as political actorsdifferentiated from those in the other two branches only by their unique institutional milieuthe cult of the robe continues to play a role in the imagery and symbolism of the court. Scholars will continue, as they should, to explore the reality behind the courts famed red curtains; but to the extent that the general public still judges the court by its external imagery, we must recognize the importance of judicial symbolism. Moreover, social scientists have noted that political symbols convey emotional, moral, or psychological impact that may not be independently true but may tap ideas people want to believe in as true.11
Undoubtedly, the media play a crucial role in the transmission of the courts image to the American people (see the article by Charles Bierbauer, p. 63). Although rampant sensationalism and cynicism characterize the modern media, coverage of the Supreme Court has tended to accentuate the positive without completely eliminating the negative. The justices decision to remain aloof from the media and the public at large, moreover, ensures them some semblance of control over how they are portrayed. Traditional limits on public access to the court help preserve its integrity and legitimacy by preventing the kinds of overexposure and trivialization experienced by the presidency and Congress.
Although the Supreme Court is now associated with the architectural icon that has served as its home since 1935, the tribunal initially had to develop its place in the American governmental system and the public consciousness without a physical presence. As historian Michael Kammen noted, Although John Marshall [the great chief justice who served from 1801-35] lacked a temple of justice, his greatest legacy may very well have been a template of justice consisting of credible and consensual judgments that could constitute a gauge and a guide that successors might use in rendering judgments that achieve legitimacy and endure.12 Although it would be overshadowed by the subsequent tenure of John Marshall, the Supreme Court in its first decade of existence also demonstrably contributed to establishing the high courts place in the constitutional order.13
In addition to benefiting from the wisdom and astute strategic reasoning of Marshall and his predecessors, the Supreme Court has always profited from the unique status that the founders granted to it. As justices constitutionally appointed for good behavior, they avoid the rigors, pitfalls, and indignities of having to run for elective office (as some state jurists must). They do not have to campaign periodically for reelection or stoop to fund-raising or selling themselves to the public. Although the courts decisions and members have occasionally become controversial and the subjects of adverse public reaction, the justices do not face electoral opponents who regularly take aim at their character. The constitutional requirement that the federal judiciary decide only bona fide cases and controversies means that the courts role is circumscribed. It may not simply wade into political conflicts prior to the litigations arrival at its doorstep; even then, the Supreme Court has complete discretion to refuse to hear a case on appeal. Indeed, in the courts first per curiam opinion in the Election 2000 litigation,14 which remanded the case to the Florida Supreme Court with hints from the skeptical justices on how to proceed, the highest court in the land signaled that it was uncomfortable wading into the thicket of presidential electoral politics.
Furthermore, the courts traditions and mores buttress the advantages of its constitutional structure. Selecting, discussing, and voting on cases within the bounds of strict privacy are a luxury in the modern world. Political scientist John Roche once observed that the secrecy in which the 1787 Constitutional Convention itself was conducted in Philadelphia allowed the delegates to retain that freedom of maneuver which is only possible when men are not forced to take public stands in the preliminary stages of negotiation.15
The same benefit accrues to the justices from the high courts norm of confidentiality. The Supreme Courts policy of opening oral arguments to the public and journalists, but not to cameras, helps preserve its stately image. In addition, most of the 108 individuals who have served on the high tribunal have represented the highest standards of professionalism and personal conduct, and they have conducted their public work with civility, rationality, and efficiency.
The substantive and symbolic aspects of the Supreme Court are therefore mutually reinforcing. The court is a uniquely positioned political institution, whose symbols and images serve to emphasize that it is sui generis. No wonder the Supreme Court has consistently outscored the president and Congress in opinion polls that measure levels of public trust and confidence in the three branches. Political scientists John Hibbing and Elizabeth Theiss-Morse, having gathered extensive data on public attitudes toward national government institutions, describe this phenomenon: The public views the court and its members as one entity that is isolated from the president, Congress, and the Washington system. Although people envision the legislative and executive branches as mired in the evil and nasty system inside the Beltway, they picture the Supreme Court as part of the constitutional system, a separate and purer element of the political cosmos.16 Bush v. Gore was potentially dangerous to the courts image because the justices might have appeared to have waded into the evil and nasty political quagmire. That is why the controlling per curiam opinion in the case tried mightily to situate the decision on constitutional foundations of equal protection of the law and the supremacy of the U.S. Supreme Court to determine national questions of electoral politics. Only time, and public opinion polls, will gauge any lasting damage, if any, to the courts image and legitimacy.
At least in the short run, however, as Justice Breyer observed, Losers as well as winners will abide by the result [in Bush v. Gore], and so will the public.17 That is the irony of the courts place in American life and politics. Losing parties and their supporters may criticize the unelected tribunal as anti-majoritarian, but its final arbiter status is secure in the American political and legal systems. Al Gore conceded the election within twenty-four hours of the courts ruling, the country went back to its work, George W. Bush was inaugurated and began to govern, and no violence erupted in the streets.
An Unwavering Institution
Holding firmly to its emblems of power and prestige, the U.S. Supreme Court will survive what some saw as its most recent self-inflicted wound. Yet the teachable moment continues. Students can learn about the courts image by taking a virtual tour of its building on the Internet (www.supremecourtus.gov), examining the justices biographies, reading their opinions for style as well as substance, and surveying media coverage of the court. They can then debate whether and how the court differs from the other branches of government and their respective images in the American mind.
1. 531 U.S. 70 (2000).
2. York Associates Television, Inc. (producer), The Supreme Court of the United States (Washington, D.C.: Supreme Court Historical Society, 1997).
3. Ginsburg Recalls Florida Recount Case, New York Times (February 4, 2001).
4. Justice Finds the Positive in Bush v. Gore, Washington Post (August 5, 2001): A14.
5. Charles Lane, 2 Justices Defend Courts Intervention in Fla. Dispute, Washington Post (March 30, 2001): A13.
6. C-SPAN, America and the Courts (March 31, 2001).
7. Original emphasis.
8. Per curiam means by the court as a whole rather than by a single justice and usually without extended discussion.
9. Federal Judge Jerome Frank used the term more than a half-century ago to critique judicial robes, which, he argued, give the public an unrealistic view of judges as attaining their wisdom from a single superhuman source. Frank thought the uninformed public mistakenly believed that judges individual attitudes must never have any effect on what they decide.
10. See the two most influential works, Jeffrey A. Segal and Harold J. Spaeth, The Supreme Court and the Attitudinal Model (New York: Cambridge University Press, 1993); and Lee Epstein and Jack Knight, The Choices Justices Make (Washington, D.C.: Congressional Quarterly, 1998).
11. Barbara Hinckley, The Symbolic Presidency: How Presidents Portray Themselves (New York: Routledge, 1990), 4-7.
12. Michael Kammen, Temples of Justice: The Iconography of Judgment and American Culture, in Origins of the Federal Judiciary: Essays on the Judiciary Act of 1789, ed. Maeva Marcus (New York: Oxford University Press, 1992), 276.
13. Scott Douglas Gerber, ed., Seriatim: The Supreme Court Before John Marshall (New York: New York University Press, 1998).
14. Bush v. Palm Beach County Canvassing Board, 531 U.S. ___ (2000).
15. John P. Roche, The Founding Fathers: A Reform Caucus in Action, American Political Science Review 55 (1961): 799.
16. John R. Hibbing and Elizabeth Theiss-Morse, Congress as Public Enemy: Public Attitudes Toward American Political Institutions (New York: Cambridge University Press, 1995), 87-88.
17. As quoted in Justice Finds the Positive in Bush v. Gore.
Barbara A. Perry is Carter Glass Professor of Government at Sweet Briar College in Virginia. She is the author of The Priestly Tribe: The Supreme Courts Image in the American Mind and The Supremes: Essays on the Current Justices of the Supreme Court of the United States.