About the Author
Christopher L. Tomlins is a senior research fellow at the American Bar Foundation and the editor of Law and History Review. His previous books include The Many Legalities of Early America; Law; Labor and Ideology in the Early American Republic; and The State and Unions.
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Introduction Characterizing the Supreme Court
Morally and legally, the Supreme Court of the United States is the most authoritative branch of the federal government; institutionally, the least powerful. John Marshall has made his decision,” Andrew Jackson is reputed to have said after the Court suggested in Worcester v. Georgia (1832) that the federal government was obliged to ensure that the Cherokee were protected from the state of Georgia’s intrusions on their quiet enjoyment of their lands. Now let him enforce it.” These particular words are apocryphal, but what Jackson actually said on the occasion conveyed the same meaning, albeit in less pithy language: The decision of the supreme court has fell stillborn, and they find that it cannot coerce Georgia to yield to its mandate.”
Jackson’s dismissal of the Court’s significance in this instance is reminiscent of Stalin’s later description of the popea general without tanks.
History offers us a subtler verdict. On one hand, it has indeed been the Court’s fate throughout its existence to make decisions of great moment that must nevertheless depend on others’ resources for meaningful effect.
On the other hand, time and again, the Courta secular papacyhas shown that its declaratory capacity can be determinative, not only of legal matters but also, quite decisively, of political and social outcomes. The outcomes have sometimes been disastrous, as in Dred Scott, or admirable, as in Brown, or deeply controversial, as in Bush v. Gore. That outcomes are readily observable, however, is indisputable.
Perhaps for the very reason that its authority to effect outcomes indirectly looms much larger than its actual instrumental capacities to do so directly, the Court has quite carefully guarded both itself and the processes by which it works from the unmediated gaze of outsiders. Like Oz’s wizard, much of the Court’s public authority lies in appearances. Appearances begin with the Court’s own appearancefamiliar in the modern era as the marble, Roman palace” that opened for business in October 1935, physically reconstituting the Court outside the Capitol for the first time, as a clearly separate and equal third branch of the federal government. It is a magnificent structure,” noted Howard Brubaker, a New Yorker commenta- tor, with fine big windows to throw the New Deal out of.” Brubaker’s words underline the Court’s legal authority (just as the sequel Court-packing controversy would expose its institutional vulnerability to a determined president), but the metaphor of defenestration was apt: Those fine big windows were not for looking in from the outside, and they shed little light on the Court’s shrouded backstage.
This most morally authoritative branch of the government is also, in its interior workings, the least transparent. Unlike the open, messy, partisan chaos of Congress and unlike the brass-band dignities and occasional peep-show notorieties of the presidency, the Supreme Court sits deliberatively apart in its palace, physically separated not only from the other institutions of government but also from the crudities of the Washington street by a mountain of steps and a phalanx of columns. The justices are presented as the nation’s most elevated practitioners of law’s mysterious science, not flamboyant politicians (or trial lawyers) but closeted high priests” engaged in the interpretation of mandarin texts.” Appearing at their bench from behind curtains that bar the inner workings of authority from the public gaze, the justices appear as one, bound together in an essential uniformity of dress and deportment: austere, remote, dignified, and virtually indistinguishable in anonymous black robes. In the 1930s musical comedies Of Thee I Sing and I’d Rather Be Right (Plate B.6),* all nine justices were made to look exactly alike.
If this apparently homogenous institution has a recognizable face, it is almost invariably that of the chief justice. The nine identical justices of the 1930s stage were all made to look exactly like then Chief Justice Charles Evans Hughes. As the essays presented here indicate, every chief justice has had clear opportunities to lead the Court over which he presides. Some have proved masters of the institution; others, completely ineffectual.
Nonetheless, there are clear limitations on the extent to which a chief justice may go in impressing his personality or interpretive preferences on the collectivity of the bench, particularly a bench that has included from time to time such brilliant but intemperate others as Stephen J. Field, George Sutherland, or Felix Frankfurter. The chief justice has means to influence the Court’s agenda but nonetheless casts only one vote. As several authors here show, the story of succeessful judicial leadership on the Court is more one of astute maneuver in a collegial realm of sharp personalities than of institutionally assuuuuured ascendancy.
Nor does the chief elevate himself above his colleagues without risk.
The magnificently authoritative robes worn by the first justices were abandoned by their successors in favor of homogenous black. Chief Justice Rehnquist’s modest attempt to mark the chief justice’s distinctiveness by embroidering his robes with a commander’s distinguishing stripes, which he wore to preside over the impeachment trial of President Clinton, earned him pundits’ ridicule as much as respect. It did not help that the inspiration was a costume designed for the character of the British Lord Chancellor in a production of Gilbert and Sullivan’s mocking Iolanthe.
The abiding characteristic of the Court’s appearance, in short, is not individuality but an elaborate, all but impenetrable uniformity of convention, practice, and ritual. Impenetrability extends even to the conventions and practices of disagreement. Readers will discover here repeated accounts of intense debate, disagreement, and even personal clashes among justices. Yet by design and in function, the Court is the embodiment of a principle of separation of government and governance from the undue influence of human impulse. The public assurance of legitimate rule in a constitutional democracy is, after all, rule not by men, but by law. The Court’s role is to ensure, and itself to stand for, the enduring appearance of that separation. That it is itself composed of men (and, lately, women) who disagree with one another requires that it make particularly athletic efforts to conceal its humanity, efforts not required of the other branches, where maximal self-exposure all too often is considered the key to career success. On the Court, the disembodiment of decision makingits appearance at most in converging or diverging opinions”is necessary if judicial disagreement is to be rendered allowable amid law’s supposed certainties.
At work, the Court is an alchemist, self-consciously transmuting the living ideas of a panel of men and women, and their staffs of law clerks, into collective pronouncement. But the Court’s public pronouncements set conditions of constitutional legality on action. They do not, at least formally, explore political possibility or seek compromise. They are, as far as possible, carefully shorn of personality. The Court’s work” transforms the ideas of men into statements of law. Hence, the Court’s work must be shroudedif not in absolute secrecy, then in enormous discretion. Exposure of the Court’s labors of transformation would undo the rule-of-law principle that inhabits American constitutional democracy and shrouds the men and women whose daily activities make and continually remake it.
Good history should engage with an institution’s myths and practices, not simply reproduce them. An earlier book in this series pointed out how common images of the presidency exaggerate the impact and the magnitude of the personal. Everything a president does,” Alan Brinkley wrote, seems to much of the nation to be larger than life.” Common images of Congress may similarly overemphasize its sausage-making, logrolling approach to governance. To engage properly with the history of the Supreme Court requires close examination of its myths and images. Here, as we recount the Court’s history critically, we watch its members over time continually constructing and reconstructing the law’s rules and their own procedures for making them. We gauge the extent of the Court’s involvement in politics; we analyze how it has been perceived over time and how it presentsitself.
Throughout, we can be sure of only one thing, which is emphasized at the outset, repeated by example throughout the chronological chapters that provide an account of the cycles that characterize the Court’s career across more than two centuries, and repeated again in the later chapters that probe the Court’s place in American legal culture: The path the Court has followedthe way it has turned outwas not foreordained. The Court has traditions that at one and the same time wrap it in a formality that protects its capacity to be closeted and secretive and portray an institution of abiding continuity. This notwithstanding, the Court has no single incarnation, no essence. At the creation of the Republic, it was not clear what precisely the Supreme Court would look like, what its role would be, or whether it would successfully assert a place for itself among the institutions of the federal government. Ever since, the Court can and has changed dramaticallycyclicallyin character and authority. The Court, in other words, is not a constitutional given, an inevitability. Its current incarnation, as at every moment during its history, is a construct of the human choices made by its members, and alternatives always exist to choices made. All the same, traditions that suggest an abiding continuity are an extremely useful resourceperhaps even the Court’s most powerful weapon. They provide the cover that reassures and, in so doing, allows change to occur. From beginning to end, we may say, the history of the Supreme Court of the United States provides cogent proof that appearances matter.
Christopher Tomlins The American Bar Foundation
17 The Supreme Court and Popular Culture Image and Projection
The U.S. Supreme Court has left its imprint on every area of American life. This imprint has included those shared products and practices to which people look when seeking meaning and context for their own daily activities: in short, culture. Popular culture’s images of the Court have historically taken shape within two contexts: the ongoing dispute over the Court’s relationship to partisan politics and an ever-changing media environment that has become dominated by visual imagery.
Popular Images of the Supreme Court
Both those hoping to maximize and those desiring to minimize the Court’s influencealong with those struggling to understand its rolehave always carried their debates beyond the cozy confines of the legal establishment to nonlegal realms, including that of commercial popular culture.
Even before there was a Supreme Court, people able to participate in public discussion were already fighting over what such a tribunal might mean for popular political culture. Opponents of the Constitution of 1787 saw the proposed Supreme Court as a powerful, potentially antidemocratic force.
In contrast, proponents of the new charter, most famously Alexander Hamilton writing in Federalist No. 89, described a Court unable to enforce its own decisions as the weakest branch” of the government created by the Constitution. From the very beginning, its friends recognized (in the later words of Justice Felix Frankfurter) that the Court possessed . . . neither the purse nor the sword” and so depended, more than other governmental institutions, on sustained public confidence in its moral sanction.”
Victorious in the presidential election of 1800, Thomas Jefferson cast himself as the champion of a popular political culture that understood the Constitution far better than the Federalist establishment. To Jefferson and his supporters, any representation that ignored Federalist justices’ partisan role and spotlighted only constitutional arguments seemed badly focused.
The nation’s first popular medium, the Jeffersonian newspapers of the early nineteenth century, presented Supreme Court justices as politicians, like members of Congress and the executive branch, and hence open to ordinary political criticism.
Champions of the Court sketched a different portrait, emphasizing the justices’ unique role in American life as teachers to the citizenry.” Acknowledging the high court’s broad impact, including on national culture, its supporters insisted that the justices conduct themselves in a manner that guaranteed their independence from political influence, guard the Court’s autonomy, and preserve the nation’s constitutional republicwhile imparting republican principles to the masses through educative example. The ideal of a judicial body shielded from partisan politics emerged concretely during the Supreme Court’s first popular test in 18041805. As a way of derailing what they saw as a nationalist assault on state authority by Federalist justices, members of one Jeffersonian faction looked to the impeachment process. Led by John Randolph of Roanoke, they targeted Associate Justice Samuel Chase, an outspoken Federalist. The Chase impeachment attempted to tear down any distinction between Jeffersonianism’s popular politics and the workings of the Supreme Court and seemed the prelude to ousting Chief Justice John Marshall and perhaps other Federalists. But the effort failed. Some Jeffersonians, estranged from Randolph and willing to insulate the high court from this kind of political threat, voted with the Federalists to acquit Chase.
The idea of an independent Supreme Court retained a tenacious, although always contested, hold on the popular imagination. Seen from this perspective, the Supreme Court has historically enjoyed a place and responsibilities in American popular culture distinct from those of other governmental institutions. The dominant image is of a group of specially trained jurists pondering public issues from somewhere above the popular political fray. The justices rule only on genuine legal controversies that require concrete, vital choices over the meaning of the Constitution, the supreme law of the land. (Supreme Court justices, for example, never meet as an advisory body on prospective constitutional questions.) Before issuing any opinion, the Court must reason its way through an actual case, whatever its political origins and ramifications. It must act according to a the supreme court and popular culture uniquely informed view of the meaning of the Constitution itself, a recognized body of legal-constitutional doctrines and procedures, and, ultimately, the ideal of the rule of law.” Disputes about the Court’s relationship to popular politics intertwine with the media environment in which political and legal representations appear. The discussion that follows traces the nature of changing media practices, but one constant in the Court’s popular image should be highlighted at the outset. No one who is not physically present during oral arguments or the announcement of decisions can see the Court at work.
Hence, at the beginning of the twenty-first century, the presence of the Supreme Court is registered visually in much the same ways as during the early nineteenththrough cartoons, illustrations, or fictional dramatizations.
Most state courts now allow, and sometimes welcome, televised coverage of their proceedings. Not the U.S. Supreme Court. The Court has released audiotapes of oral arguments, but these representations remain entirely within the aural and archival realm: They have yet to be broadcast live,” in real time. Nor has the Court even used an in-house” photographer to snap still pictures of the justices and their staffs at work. In an age in which the practice and performance of governance have become inseparable from the art of visual imagery, the Supreme Court has continued to find shelter behind its red velvet curtain. . . . .
-- Norman L. Rosenberg
Copyright © 2005 by Houghton Mifflin Company. Reprinted by permission of Houghton Mifflin Company.
