Making Our Democracy Work (37 page)

After the Civil War the nation adopted the Thirteenth, Fourteenth, and Fifteenth amendments, which ended slavery, guaranteed constitutional protection of individual liberties from infringement by the states, assured individual citizens fair and equal treatment, and sought to guarantee racial minorities the right to vote. Later amendments, among other things, assured the popular election of senators, extended suffrage to women, forbade the poll tax, and lowered the voting age to eighteen.

Moreover, Congress cannot set aside a Court interpretation of the Constitution simply by passing an ordinary law. Rather, unless the Court itself modifies or overturns a constitutional decision, that decision can be changed only by amending the Constitution. And the Constitution is difficult to amend, requiring the affirmative vote of two-thirds of each house of Congress plus approval by three-quarters of the states or the calling of a special national convention (which has never been done). In a word: The framework-creating document, namely, the Constitution, is brief, general, practical, and permanent.
³

The Court’s work has four important general features. First, specific, often determinative criteria normally govern the Court’s decision about which cases to hear in full. These basic criteria do not rest upon the intrinsic interest of the legal questions in the case. Nor do they assume that the Supreme Court will reach a “better” decision than did the lower courts. As Justice Robert H. Jackson noted, we are not final because we are infallible; rather, we are infallible only insofar as our word is final.
⁴

Neither do the criteria require the Court to examine each petition (asking the Court to hear a case) in order to decide whether the lower courts decided the case correctly. Basic fairness does not require such an examination. Each litigant has previously received a trial and taken an appeal. And in any event, a Supreme Court bench of only nine judges could not fully consider and evaluate the soundness of eight thousand lower-court decisions each year.

As Chief Justice William Howard Taft, a former president of the United States, explained, the basic criterion for hearing a case is the need for federal law to be uniform throughout the nation. If all lower courts have reached similar conclusions about the meaning of a statutory
or constitutional phrase, the law is already uniform. And there is normally no need for the Court to hear the case. If, however, the lower courts disagree, with some applying the law one way and others a different way, then there is a need for the Court to hear the case—to achieve national uniformity. We may also grant a petition for hearing if there is some other particular need for a single, authoritative court decision—for example, when a lower court has held a federal statute unconstitutional. But still, disagreement among the lower courts is the most commonly used criterion.
⁵

Second, in carrying out its responsibilities to interpret statutes and the Constitution, the Court typically must decide how to apply a word or phrase in a document to a particular set of circumstances. To do so, the judges must interpret that word or phrase, that is, explain its meaning. Does the word “costs,” for example, in a statute that awards “costs” to a parent (who successfully shows that a school board must provide a better education to his disabled child) include the expense of hiring an expert witness? Does the Fourth Amendment’s language prohibiting “unreasonable searches and seizures” require police to obtain a search warrant for a car whose driver they have properly arrested and already restrained?
⁶

Third, when deciding a typical case, each justice will read the same set of ten to fifteen (or more) briefs (legal documents of thirty to fifty pages each containing arguments) filed by the parties and other interested persons. Those persons can include the federal government, state governments, law enforcement officials, businesses, labor unions, environmental associations, public interest associations, and so forth. After reading the set of briefs, the justices will hear an hour-long oral argument, giving them an opportunity to ask the lawyers questions. Within a few days, the justices will discuss the case in a private conference and reach a preliminary decision. The chief justice, if he sides with the majority (or, if he doesn’t, then the most senior justice in the majority), will assign one justice to write a draft opinion (usually fifteen to thirty pages) explaining the Court’s legal conclusion and its reasons. The draft opinion’s author circulates the draft internally; other justices make suggestions; and eventually every justice joins the draft or writes a concurrence (an opinion agreeing in the result but for different or
additional reasons) or a dissent or joins a concurrence or a dissent written by another justice. When all have written or joined, the work is done. The opinion upon which at least five members of the Court have agreed is the Court’s majority opinion. (Where a justice is disqualified from hearing a case and the Court then divides 4 to 4, the lower-court decision is automatically affirmed.) All opinions are then released to the public and eventually published. About 30 percent of the decisions are unanimous. About 25 percent are closely divided (5–4). However closely divided and controversial a decision may be, the justices maintain good personal relations with one another.

Fourth, when considering the Court’s interpretation of the Constitution, one needs to keep in mind that the Constitution sets forth a framework for government. It sets boundaries within which other government bodies must act. The boundaries not only structure government but also set limits upon its authority, explicitly defining, and thereby protecting, individual liberties that government cannot infringe. The Court, in a sense, patrols those boundaries, deciding when an action by a state or federal government falls outside the bounds and lies in forbidden territory. The legal questions about where the boundaries lie may be difficult. When, for example, does a law affecting speech (say, restricting political campaign contributions) fall outside the boundary that the First Amendment puts in place? When does a law prohibiting abortion fall outside the boundary’s limits? Nonetheless, remember that difficult boundary-defining decisions constitute but a tiny part of the vast number of government decisions (embodied in laws, ordinances, rules, and regulations) that determine the kinds of communities, cities, states, and nation that Americans seek to maintain. The Constitution assumes that Americans will make these latter decisions, the vast bulk of government decisions, democratically through the direct or indirect actions of elected officials.

Within this basic decision-making framework the issues that this book discusses arise. How has the public come to accept the Court’s decision-making role as legitimate—to the point where it will typically follow even Court decisions with which it strongly disagrees? What can the Court do to merit the public’s confidence in the institution and to help maintain it?

S
OME PORTIONS OF THIS BOOK HAVE PREVIOUSLY APPEARED AS
lectures at the University of Oklahoma (the Henry Family Lecture), the Rehnquist Center at the University of Arizona, Yale University, the New York Public Library, the American Academy in Berlin (the Cutler Lecture), and the Supreme Court Historical Society.

I should like to thank Charles Nesson, with whom I worked in the 1970s at Harvard bringing together materials that evolved into the chapters about the Cherokee Indians and
Korematsu
. Similarly, material that Charles Ogletree gathered for a seminar about
Dred Scott
at Harvard in 2007 helped me write the chapter on that case. I owe a great intellectual debt to my teachers and my colleagues at Harvard Law School, who helped teach me how to think about law, for example, Paul Freund, Al Sacks, Henry Hart, Ben Kaplan, Louis Jaffe, John Hart Ely, Richard Stewart, and Charles Fried; to judges and legal scholars, such as Arthur Goldberg, Ronald Dworkin, Michael Boudin, and Richard Posner; and to many others as well.

I should like especially to thank Michael Bosworth for his great help with this book, for tirelessly devoting much time and effort to reading manuscripts and making enormously constructive comments. I also thank my friends, former law clerks, and others who have had the patience to read ever-changing manuscripts and the willingness to provide structural insights, numerous helpful comments, and useful suggestions. They include Georges de Ménil, Lois de Ménil, Strobe Talbott, Lisa Bressman, Sally Rider, Paul Gewirtz, and Elizabeth Drew.

They include as well members of my own family: Joanna, Chloe, Nell, and Michael.

I thank my research assistants at Yale for their helpful footnoting work: Hunter Smith, Elina Tetelbaum, Thomas Schmidt, and Benjamin Ewing.

And, of course, I very much thank my editor, Pat Hass, for her continuous encouragement, her perseverance, and her fine editing work.

1.
Gordon S. Wood,
Empire of Liberty
468 (2009).

2.
Stephen Breyer,
Active Liberty
(2005).

1.
For a description of the “Commonwealth model” of judicial review and its operation in Canada, the U.K., New Zealand, and elsewhere, see Janet L. Hiebert,
Parliamentary Bills of Rights: An Alternative Model?
69 Mod. L. Rev. 7, 11–16 (2006); Stephen Gardbaum,
The New Commonwealth Model of Constitutionalism
, 49 Am. J. Comp. L. 707 (2001).

2.
See, e.g., David Johansen & Philip Rosen, Parliamentary Information and Research Service Background Paper BP-194E,
The Notwithstanding Clause of the Charter
10–13 (2008),
www.parl.gc.ca/information/library/PRBpubs/bp194-e.pdf
(describing limited usage, outside of Quebec, of the “notwithstanding clause” of the Canadian Charter).

3.
Reference to the “people drunk” and the “people sober,” common among constitutional law scholars, may find its origin in an ancient discussion of an appeal from Philip drunk to Philip sober. See Valerius Maximus,
Facta et dicta memorabilia
, bk. 6, ch. 2 (
A.D
. 32).

4.
James Madison, Speech in Congress Proposing Constitutional Amendments (June 8, 1789), in James Madison,
Writings
437, 449 (Jack N. Rakove ed., 1999).

5.
Federalist 78 (Alexander Hamilton).

6.
1
The Records of the Federal Convention
97 (Max Farrand ed., 1966) (Madison’s notes, June 4, 1787);
id
. at 109 (Pierce’s notes, June 4, 1787); Speech of James Wilson at Pennsylvania Ratifying Convention, in 2
Documentary History of the Ratification of the Constitution
451 (Merrill Jensen et al. eds., 1976); Saikrishna B. Prakash & John C. Yoo,
The Origins of Judicial Review
, 70 U. Chi. L. Rev. 887, 952 (2003). For a book with an excellent history of judicial review at the founding and in the early Republic, see Larry D. Kramer,
The People Themselves
(2004).

7.
Federalist 78 (Alexander Hamilton).

8.
Id.;
Federalist 81 (Alexander Hamilton).

9.
Federalist 78 (Alexander Hamilton); Federalist 81 (Alexander Hamilton).

10.
Federalist 78 (Alexander Hamilton); Federalist 81 (Alexander Hamilton).

11.
Federalist 78 (Alexander Hamilton).

12.
Calder v. Bull
, 3 U.S. (3 Dall.) 386, 398–99 (1798) (Iredell, J., concurring in judgment).

13.
James Iredell to Richard Spaight (Aug. 26, 1787), in 2
Life and Correspondence of James Iredell
172, 175 (Griffith J. McRee ed., 1858).

14.
James Iredell,
To the Public
(1786), reprinted in
id
. at 145, 146; Iredell,
supra
note 14 at 173.

15.
Id
. at 175.

1.
Marbury v. Madison
, 5 U.S. (1 Cranch) 137 (1803).

2.
See Louise Weinberg,
Our
Marbury, 89 Va. L. Rev. 1235, 1255–57 (2003) (describing the Court’s business around the time of
Marbury
as modest in volume and importance and noting the onerous circuit-riding duties of the justices); 1 Charles Warren,
The Supreme Court in United States History
171–74 (1922); John A. Garraty, Marbury v. Madison:
The Case of the “Missing” Commissions
, Am. Heritage (June 1963), at 6, 84.

3.
Garraty,
supra
note 2, at 7; Warren,
supra
note 2, at 185–215; Gordon S. Wood,
Empire of Liberty
415–20 (2009); see generally
id
. at 400–68.

4.
Thomas Jefferson to Spencer Roane (Sept. 6, 1819), in
The Essential Jefferson
250, 252 (Jean M. Yarbrough ed., 2006) (emphasis added); Larry D. Kramer, Marbury
at 200: A Bicentennial Celebration of
Marbury v. Madison, 20 Const. Comment. 205,224 (2003).

5.
4
The Documentary History of the Supreme Court of the United States
292–94 (Maeva Marcus & James R. Perry eds., 1992).

6.
Mark Tushnet,
Introduction to Arguing
Marbury v. Madison 3–4 (Mark Tushnet ed., 2005); Weinberg,
supra
note 2, at 1264–65;
id
. at 1287–93. On the impeachment of Justice Chase, see William H. Rehnquist,
Grand Inquests
15–113 (1992).

7.
Warren,
supra
note 2, at 200–201.

8.
See Susan Low Bloch,
The
Marbury
Mystery: Why Did William Marbury Sue in the Supreme Court?
18 Const. Comment. 607 (2001); Weinberg,
supra
note 2, at 1303–10 (2003); Judiciary Act of 1789, ch. 20, § 13, 1 Stat. 73 (emphases added).