The Judicial Bookshelf

Almost anyone who can read would describe the Supreme Court of the United States as a legal body–an institution that says what the law is in the context of deciding cases. May the Court also be fairly described as a political institution? Even to pose the question raises eyebrows, because Americans commonly use the word “political” to refer to partisan politics—that persistent struggle between organized groups called political parties to control public offices, public resources, and the nation’s destiny. In this sense of the word, the federal courts are expected today to be “above politics,” meaning that judges are supposed to refrain from publicly taking sides in elections, from otherwise jumping into the arena of electoral combat, 2 or from deciding cases based on the popularity of the litigants.3 While democratic theory anticipates that elected officials will answer to the people, the rule of law envisions something different: an abiding and even‐handed application by the judiciary of the Constitution and statutes shaped by the people and their representatives.     

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Two decades ago, in the summer of 1987, celebrations of the bicentennial of the United States Constitution were in high gear under the watchful eye of then recently retired Chief Justice Warren E. Burger, who chaired the Commission on the Bicentennial of the United States Constitution between 1985 and 1991. ¹ Numerous lectures, seminars, and conferences across the land made clear not only the role and value of what Chief Justice William Howard Taft once called “the ark of our covenant” ² in the life of the nation but also the central place the judiciary had long occupied in the political system, as state and national courts confronted vital questions of public policy perplexing and dividing the people. As that astute French aristocrat Alexis de Tocqueville first noted in 1835, the “American judge is dragged in spite of himself onto the political field . … There is hardly a political question in the United States which does not sooner or later turn into a judicial one.” ³ With the “right to declare laws unconstitutional,” he explained, the judge “cannot compel the people to make laws, but at least he can constrain them to be faithful to their own laws and to remain in harmony with themselves.” ⁴     

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Change at the Supreme Court may be most visible and frequent in the progression of statutory and constitutional questions the Justices resolve collectively, but it may also be equally highlighted by an individual Justice's decision. This reality became plainly apparent in a letter that Justice John Paul Stevens sent to the White House on April 9, 2010, just eleven days shy of his 90^th birthday: “My dear Mr. President: Having concluded that it would be in the best interests of the Court to have my successor appointed and confirmed well in advance of the commencement of the Court's next Term, I shall retire from regular active service as an Associate Justice … effective the next day after the Court rises for the summer recess this year.” ¹ His statement was dated almost a year after Justice David Souter dispatched a similar notice to President Obama on May 1, 2009, announcing his intention to leave the Bench. Thus, for the fifth time in as many years, the machinery of executive nomination and senatorial advice and consent for the High Court churned again.     

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The death of Justice Byron R. White on April 15, 2002, occasioned numerous assessments, as had happened when he retired in 1993. From his perspective, he was the accidental jurist. "Well, I never wanted to be a judge," he confessed to a reporter in a rare interview in 1999. "I said to the president I would give it a try." White's "try" lasted thirty-one years, among the longest tenures of twentieth-century Justices. Yet many appraisals of White passed over a critical point: the Supreme Court in 1993 was a very different institution from the one he joined in 1962. This was true beyond the obvious changes in personnel. No one on the bench in 1962 was still sitting when White retired. In 1962, Ruth Bader Ginsburg, who succeeded him, was only four years out of Harvard Law School and was completing a year as a research associate at Columbia University Law School prior to joining the professorate at Rutgers in Newark.     

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Spring and summer of 2011 brought to mind two instructive American chronological landmarks: the 235^th anniversary of the signing of the Declaration of Independence and the 150^th anniversary of the outbreak of the Civil War. One was as uplifting as the other was disheartening.     

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Decisions by the Supreme Court that are accorded "landmark" status are chiefly remembered for their holdings and effects. Such cases are also typically linked to a particular era of judicial history, as Marbury v. Madison ¹ was to the Marshall Court and Jefferson's presidency, as Youngstown Sheet & Tube Co. v. Sawyer ² was to the Vinson Court and Truman's presidency, and as Miranda v. Arizona ³ was to the Warren Court and the tumultuous 1960s. But probably only serious students of the Court will recall that Marbury was decided in 1803, Youngstown in 1952, and Miranda in 1966. And fewer still will know, without first consulting a reference, that Marbury came down on February 24, the Steel Seizure Case on June 2, and Miranda on June 13. Scholars typically associate decisions with years, not the day of the month.     

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Americans were reminded last January 20, as they are every four years, of the central moment at the Inauguration: the swearing in of the president. In this republican rite, the new or continuing chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, "[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: 'I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.'" ¹ Justices of the Supreme Court, other federal judges, legislators and officials, as well as state officeholders, likewise govern only upon making a similar pledge. "Senators and Representatives … , and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution." ² And for added emphasis, protection, and insurance, the Constitution crowns itself, national statutes, and treaties as "the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding." ³ Parallel drama unfolds in other venues too. In the half century since all nominees to the Supreme Court have routinely appeared before the Senate Judiciary Committee, it would be difficult to find an example of a would-be Justice who, through one combination of words or another, did not promise senators that she or he would faithfully interpret and apply the Constitution.     

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"In law, also, men make a difference," ¹ counseled Felix Frankfurter the year before his appointment to the Supreme Court. Frankfurter highlighted one of the three critical components of judicial decision-making in constitutional law: alongside the text of the Constitution itself and the cases that pose various questions for decision are the women and men who answer those questions. Those answers, as Frankfurter believed, are invariably influenced by the values Justices bring with them to the Bench. Yet he was expressing no newfound truth, but an awareness that had been apparent for a long time. "Impressed with a conviction that the true administration of justice is the firmest pillar of good government," President George Washington wrote future Attorney General Edmund Randolph in 1789, "I have considered the first arrangement of the judicial department as essential to the happiness of our country and the stability of its political system." To be sure, the Court's role in the political system was unclear, but Washington realized the impact the Court might have in the young Republic. This required, he told Randolph, "the selection of the fittest characters to expound the laws and dispense justice." ² And as he filled the six seats Congress had authorized for the Supreme Court, the first President made sure that each nominee was a strong supporter of the new Constitution.     

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Millions were reminded on January 20, 2009, that the inauguration of an American President is as remarkable as it is routine. In this distinctly republican rite, the chief executive publicly subordinates himself to the fundamental law of the land. As the Constitution dictates, “[b]efore he enters on the Execution of his Office, he shall take the following Oath or Affirmation: ‘I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitution of the United States.’” ¹ This display of constitutional fealty was remarkable because the variety of political systems, experiences, and cultures across today's globe graphically illustrates that the seamless and peaceful transfer of authority from one political party or individual to another, as was witnessed at President Barack Obama's inauguration and at President George W. Bush's inauguration in 2001, is not always a foregone occurrence everywhere. January's event was routine in that, from the outset of government under the Constitution and with the notable and tragic exception of 1860, the defeated party or individual has accepted, if not welcomed, the verdict rendered by the electoral process. That was the outcome even in 1800, when the notion of a violence‐free shift of control in a country founded on the principle of government by the “consent of the governed” ² was first put to the test at the presidential level. The assumption of authority by Thomas Jefferson and the Democratic‐Republicans from John Adams and the Federalists marked the world's first peaceful transfer of power from the vanquished to the victors as the result of an election. ³ Given the stark national partisan differences that had crystallized in the short time since ratification of the Constitution and the fact that finalization of the election required extraordinary intervention by the House of Representatives to break an Electoral College tie, this outcome was a greater achievement than is sometimes acknowledged. “Partisanship prevailed to the bitter end and showed no signs of abating,” according to one historian who has recently revisited this critical and precedent‐setting election. “Over the campaign's course, George Washington's vision of elite consensus leadership had died, and a popular two‐party republic … was born.” ⁴     

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Standard nomenclature in Supreme Court literature contrasts the "old Court" and the "new Court" (or, sometimes, the "modern Court"). By most accounts, the dividing line between the two falls during the years 1937–1940, when the nation witnessed a judicial and constitutional revolution. The proverbial "irresistible force" (in the form of President Franklin Roosevelt's New Deal program to cope with the Great Depression) met the "immovable object" (in the guise of the Supreme Court under the leadership of Chief Justice Charles Evans Hughes that, for a short time, stymied many of the President's initiatives). The result was Roosevelt's audacious assault on the Court through the Court-packing plan and the hasty change of mind by Hughes and Justice Owen J. Roberts that gave Roosevelt the five sure votes he needed so that his agenda could receive the constitutional stamp of approval. This flip-flop was promptly followed by the Court's adoption of a new agenda for itself, one that elevated civil liberties into a preferred position in the hierarchy of constitutional values and demoted property interests, which heretofore had been accorded heightened judicial protection.