The defining characteristic of the American experience is the premise of law as a check on governmental power. Challenged throughout our history and subjected to stresses and strains inflicted by indifference, partisanship and political affiliations that prefer the ends- justify- the- means- philosophy, the premise remains an ideal, though its fibers are frayed.
The institution that most nearly embodies this ideal is the U.S. Supreme Court, the history of which is the story of how a few men and women, when at their best, have exercised their authority to uphold the rule of law in American life. In those moments, when the justices deliver rulings that defend our cherished right and liberties and maintain the doctrines of separation of powers and checks and balances—critical to constitutional equilibrium-- the Court is exalted by commentators as the conscience of the nation, an institution that has fulfilled the aims and purposes of those who wrote our Constitution. When the Court extols the virtues of equal protection of the law and due process of law and avoids strident tones free of individual preferences—social, political and otherwise—its behavior is suggestive of Alexander Hamilton’s representation of the judiciary as an impersonal vessel through which the Constitution speaks, rather than a forum for individual justices to promote their own political goals and agendas. At that moment, warnings from the pens of some founding era writers who opposed the awesome power of judicial review, such as Robert Yates, writing under the pseudonym, “Brutus,” who feared that the power would lead the Justices to “feel themselves independent of Heaven itself,” strike us as an exercise in exaggeration.
Management of the Court’s image has been left, chiefly, to the Justices themselves. The Justices are their own worst enemies when they fail to withdraw from cases when recusal is plainly required, accept millions of dollars in unreported gifts and luxurious vacations from billionaires who would influence the direction of the Court, overturn precedents protective of fundamental rights that are as sturdy as giant oaks and unwisely reveal their political views in speeches and comments to reporters, accompanied by warnings that liberals are threats to freedom of speech and religion. Each act, by itself, would be sufficient to persuade the citizenry that Brutus, not Hamilton, had the better view of what the Court might become. If enough Americans embrace the warnings of Brutus, rather than the assurances of Hamilton, then the all-important mystique of the Court as a law court, rather than a political court, will have been pierced and perhaps shredded.
Justice Louis Brandeis, one of the greatest in the Court’s history, used to say that what the Court did not do was often more important than what it did do. Thus, the Court has refrained from issuing advisory opinions, avoided comments on pending cases and generally abstained from offering sharp public critiques of previous decisions, all of which would lend credence to Brutus’s predictions about the High Tribunal. Regardless of Brutus’s characterizations, Americans, informed by insightful judicial studies and commentary on the work of the Court, are not going to mistake the Supreme Court for the Delphic Oracle. At this juncture, the Court must labor to retore public trust.
There is a role for common sense among the justices. Those who desire the lifestyle of the rich and famous probably should decline a Supreme Court appointment at the “paltry” salary of $275,000 a year and virtual guarantees of hundreds of thousands of dollars in book royalties, if their thing is travel by private jets and yachts. They should find a different job, one that will support those extravagant tastes. Two centuries ago, attorneys in line for a seat on the Court declined offers of appointment in favor of jobs that were more lucrative. Those were wise choices by wise men who understood that life requires choices.
The Court is under intense scrutiny today, as it should be, but it has always drawn criticism. Horace Greeley, the famous New York antislavery newspaper editor, once wrote that he would just as soon trust the judgment of his dog than that of Chief Justice Roger Taney. Management of the Court’s image should be a priority for the justices, if they hope to regain the confidence of the American people.
David Adler is president of The Alturas Institute, created to advance American Democracy through promotion of the Constitution, civic education, equal protection and gender equality. He has lectured nationally and internationally on the Constitution and the Bill of Rights. His scholarly writings have been quoted by the US Supreme Court, lower federal courts and by both Republicans and Democrats in Congress.
