Supreme Court Justice Stephen Breyer spoke last week at the Aspen Ideas Festival. It was a stirring speech. He’s an eloquent and passionate speaker, and like all good orators, he got me to thinking.
Justice Breyer’s point was the importance of the Court to democracy. The Court serves the vital and essential function of a neutral actor in the mix to play referee, to stand in the fray and call foul, to stop the action and consider what really is fair, no matter the size or skill of the players. That sounds right. Without this role, games and democracies easily devolve to chaos or bullying. With this role, we can all relax into our own – whether as player or spectator.
I recognize the referee role only too well since I play a similar one. As a facilitator of process, I design and then monitor the way something gets done. The larger and more diverse the group, the more contentious the issues, the more important this work is — if I hold the space and monitor the established rules of engagement, the people participating can relax into dealing with the subject at hand. It can take a while to establish trust in this role, there may even be tests – people pushing the limits of the “rules” to see if they can be bent or broken, to see if I will notice, if I will act. But if I play it fairly, applying the same rules to everyone, people will stop worrying over process and really start attending to the issues.
So, when Justice Breyer recounted his story of this country’s test of the Supreme Court’s authority, I listened with great interest. The heart of the story involved two moments in American history. The first was in the 1830s, from when our democracy was still young. At the time, the state of Georgia, having found gold on Cherokee Indian land, wanted the Indians out. In a series of cases, known as the Marshall Trilogy, Chief Justice John Marshall wrote decisions that set precedent for tribal sovereignty. Breyer then referred to President Jackson’s response “John Marshall has made his decision. Now let him enforce it.” Although this quotation is disputed, it is undoubtedly representative of Jackson’s sentiments. He sent federal troops into Georgia to move the Cherokee off their lands, disregarding the Marshall Court and inciting what would result in the Trail of Tears.
Breyer’s point was, early in our nation’s history, the Court was still establishing the authority of its supreme arbiter role. And clearly, that power was dubious at best if the President so readily flouted it.
Breyer then turned to a case much more familiar: Brown v. Board of Education. Although the landmark case ruled segregation unconstitutional in 1954, it took three more years for it to be tested. As we all know, the test happened in the fall of 1957 in Little Rock, Arkansas. Little Rock’s school board and the NAACP planned to have nine carefully chosen students enroll at Central High. Governor Orval Faubus wouldn’t hear of it and called out the Arkansas National Guard to block the students. Like Jackson, according to Breyer, President Eisenhower sent in federal troops – and his choice of the 101st Airborne was brilliant strategy since the 101st was beloved for its role in Normandy. This time the troops backed the Supreme Court’s decision.
Breyer’s argument was that, even if we disagree with a decision, Bush v. Gore for example, or Roe v. Wade, the fact is that we, as a country, as a democracy, depend on the authority of the Court as our supreme arbiter, as the final say. And, what’s more, we adhere to it. For those of us who think we want the Court’s decisions challenged, Justice Breyer urged us to look carefully at the images of anarchy coming from places around the globe. Do we really want to live in a country where the role of referee is tenuous, even nonexistent?
His question is a good one. But then a fellow from the audience asked another.
“Would the cynicism toward the Court be reduced if the decisions could be 6-3 instead of 5-4?” Justice Breyer responded to this question by talking about our desire for a Court more in agreement with itself, citing Europe’s policy not to publish dissenting opinions as a way of solidifying the rule of law. This surprised me. What I heard in the fellow’s question was not a desire for more agreement, but for less partisanship among the Justices.
Too many of the major decisions (e.g., Citizens United and Wal-Mart v. Dukes) being made by the Court are being decided 5-4, with the conservative Justices (Roberts, Scalia, Kennedy, Thomas and Alito) on one side and the liberal ones (Ginsburg, Breyer, Sotomayor and Kagan) on the other. It is this, more than what the actual decisions are, that is so inimical to our trust in the Court as the neutral actor we need it to be. This partisanship is what is eroding our confidence in the Court as the ultimate power of judicial review in this country. If the Court can do no better than Congress in deciding the issues that threaten to tear us apart, if the Court is no more than a reflection of the rancor and polarity that run through our public discourse, then the Court is no longer deserving of the role of supreme arbiter and the ensuing powers that role commands.
Like any leader, I am only able to function as an effective facilitator as long as the people I serve perceive me as such. When I start to show bias, when I begin to take sides, especially if I do so under the guise of fairness, I am no longer useful in my role. If I do not correct my behavior, or step aside, the people will (and should) take care of it themselves. This too is inherent to democracy. In fact, it is the very idea upon which this country was founded: equal justice under the law.
For a related blog from Aspen Institute: http://www.aspeninstitute.org/about/blog/does-supreme-court-follow-people
Congratulations on the new look and feel of the blog. Great job. Very slick, lean and clear. Sophisticated and gently to the point—in keeping with the thinking and writing.
Jenifer
Thanks Jenifer – Glad to see you over here!
I wish that presidents would resist the temptation to seek nominees who reflect their own most extreme leanings (e.g. Thomas, Scalia), and that the confirmation process were not so fraught as to prevent senators from learning anything of value. Nominees are chosen for their lack of a “paper trail,” are coached, and craft answers carefully worded to avoid exposing any of their deeply-held beliefs about our Constitution and the system it undergirds.
I must say, reluctantly, that I believe liberals now have cause to regret the treatment shown to Robert Bork as a nominee; it was short-sighted. I believe that moment has led us more or less directly to where we are today with the politicization of the court. But it is not primarily the fault of the justices themselves. In large measure, the change was brought about by presidents and senators seeking a way to enshrine in law, or in the legal system, their own political biases.
With all of that said, the Supreme Court is still the best thing we’ve got to avoid bloodshed in the streets. And it is still capable of rendering nonpartisan decisions, e.g., the Westboro Baptist Church decision. While I abhor what they do, the Court was correct to uphold their right to do it.
Thanks for the thoughtful reply, Sarah. While I agree with your points about the selection process and those administering it sharing in the “blame” for the court’s current level of partisanship, I do note the fact that Justices are given a life tenure. Justices enjoy the security of a position that allows them to mature their application of Constitutional law and deeply reflect on the long term effects of their decisions. I place the blame on the individual Justices for not availing themselves more of this opportunity, which repeated 5-4 decisions evidence. Ultimately though, it is we The People who are responsible in our democracy for insisting it work for us – when it does no longer, it is time for us to rethink our governance (the structures, processes and roles of our design to ensure effective decision-making). I think it is possible to do this without bloodshed. For instance, if the court has become so calcified in polarity, is it time to consider term limits? See this interesting article on the idea.
Addressing the latter “and Should We?”
In principle, the Supreme Court decisions are still good law but often times the lower courts have gotten in the habit of ignoring them.
Several weeks ago, I was thrilled to hear one of my favorite radio stations, NPR, take up the issue of software patents. For decades, this alarm has been sounded, and it is great to see mainstream media finally start to give the issue the kind of attention it deserves.
Last month Bilski v. Kappos case wound up being a 5-4 nail-biter, with a conservative majority striking down the particular business method patent in the case, but refusing to rule out business method patents in general. Bilski case focused on “business method” patents, was legalized in the 1998 and which legalized software patents. The Supreme Court has ruled and stated several times software is not eligible for patent protection. Unfortunately, the last decision was so muddled and provided gaping loopholes, which allowed lower courts to make software patents easier to get. The patent reform legislation now working its way through Congress is woefully inadequate and at this point, software patents simply benefit too many entrenched interests to expect Congress to enact serious reforms.
A starting point would be reformation of laws/governance to reflect innovative ideas of the 21st Century. Currently our systems are antiquated and ambiguous and that is problematic, and create precarious situations which, in my observation, inevitability results in an increased number of loopholes chasers and or those who choose to totally ignore governance. Even more disurbing is the non-compliance of the very ones in positions of governance. Another issue at another time.
Thanks Rebecca, for providing such a crisp forum. I enjoy and look forward to your readings.
Thank you for such a thoughtful reply – and one that links in the very important issues of governance and the changing business landscape. I could not agree more that reformation of laws\governance is needed to reflect innovations abounding — I may have a more radical idea that the very institutions upon which we have depended for our governance need to be re-thought, perhaps even overhauled. I am not an anarchist, just an observer of social trends, and it looks to me like new forms of governance that are more inclusive, transparent and accountable are in the incubation stages. These may or may not include some of our traditional governance systems and institutions! To keep abreast of this trend, subscribe to All About Governance.
[...] have written before of my concerns about the Court’s diminishing credibility at the hand of its too-often politicized [...]