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