1702692947 美国最高法院通识读本 [:1702690388]

1702692948 美国最高法院通识读本 Chapter 7The Court and the public

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1702692950 Judges “do not stand aloof on these chill and distant heights,”Benjamin N. Cardozo once said. “The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.” Cardozo was a state court judge, not yet a Supreme Court justice, when he delivered those words in 1921, at the conclusion of a series of lectures on “the nature of the judicial process.” His words ring true these many years later, while also hinting at a mystery. Given that judges, Supreme Court justices among them, live in the world, how do their perceptions shape their judging? More specifically, what is the relationship between the Supreme Court and the public?

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1702692952 Justices themselves have had something to say on this subject. “We all rely on public confidence and trust to give the courts’ decisions their force,” Justice O’Connor said in a lecture on “public trust as a dimension of equal justice.” She explained: “We don’t have standing armies to enforce opinions, we rely on the confidence of the public in the correctness of those decisions. That’s why we have to be aware of public opinions and of attitudes toward our system of justice, and it is why we must try to keep and build that trust.”

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1702692954 Chief Justice Rehnquist said it would be “remarkable indeed” if judges were not influenced by the broad currents of public opinion.“Judges, so long as they are relatively normal human beings, can no more escape being influenced by public opinion in the long run than can people working at other jobs,” he said in a lecture on “constitutional law and public opinion.” Further, he added, “if a judge on coming to the bench were to decide to seal himself off hermetically from all manifestations of public opinion, he would accomplish very little; he would not be influenced by current public opinion, but instead would be influenced by the state of public opinion at the time he came to the bench.”

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1702692956 In their somewhat different formulations, these judicial colleagues with distinct approaches to judging were in agreement that a judge’s awareness of public opinion is not only inevitable but desirable, even necessary. And these two justices put their observations into practice. Chief Justice Rehnquist was for years a vigorous critic of the Court’s decision in Miranda v. Arizona, the 1966 ruling that requires the police, before interrogating a suspect in custody, to deliver the now-familiar warnings about the right to remain silent and the right to counsel. But when the Supreme Court had the opportunity to overturn Miranda in 2000, the chief justice led the Court in the opposite direction. Instead of overturning Miranda, his majority opinion in Dickerson v. United States declared unconstitutional an effort by Congress to overturn the decision legislatively. “ Miranda has become embedded in routine police practice to the point where the warning has become part of our national culture,” Rehnquist wrote.

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1702692958 Justice O’Connor had been a critic of affirmative action throughout more than twenty years on the Court when a case arrived challenging an effort by the University of Michigan Law School to increase the racial diversity of its student body by means of an admissions policy that took into account an applicant’s race. O’Connor voted to uphold the plan and wrote the Court’s majority opinion in the case, Grutter v. Bollinger (2003). She cited briefs filed on the law school’s behalf by educational leaders, corporate executives, and military officers. “In order to cultivate a set of leaders with legitimacy in the eyes of the citizenry, it is necessary that the path to leadership be visibly open to talented and qualified individuals of every race and ethnicity,” is how O’Connor summarized the core of the argument for the law school’s position. She left little doubt that she had been persuaded not only by this argument but by the fact that it was put forward by those representing a broad segment of elite opinion.

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1702692960 It is not necessary to conclude that either of these justices experienced sudden epiphanies when confronted with cases that put their own frequently expressed principles to a concrete and highly visible test. The point is rather that each considered the case at hand not as an abstract legal proposition but as a dispute arising in a social and political as well as legal context. It is not necessary to agree with either outcome—indeed, Rehnquist dissented in the Michigan case and denounced the law school’s admission plan as “a naked effort to achieve racial balancing”—in order to appreciate that the majority in both saw itself as navigating on a sea of public opinion.

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1702692962 Scholars regard the relationship between the Supreme Court and public opinion as elusive. Lee Epstein and Andrew D. Martin, two leaders in the empirical study of judicial behavior, titled an article:“Does Public Opinion Influence the Supreme Court? Possibly Yes (But We’re Not Sure Why).” The article surveyed the political science literature on the question, much of it inconclusive and contradictory. At best, the authors conclude, there seems to be an association between the Court and public opinion, but not enough evidence to “make the leap from association to causality,” that is, to prove that public opinion actually influences the Court.

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1702692964 But in any event, public opinion does not travel a one-way street. While the public may influence the Court, at least some of the time, the Court may also influence the public. One classic image, dating to early in the country’s history, is of the justices as teachers,“the Supreme Court as republican schoolmaster,” in the phrase of a well-known article that documents the role of the early justices as they rode circuit, summarizing the law in their charges to grand juries, and serving in this manner as “teachers to the citizenry.” The author concludes that “whether the justice should teach the public is not and cannot be in question since teaching is inseparable from judging in a democratic regime.”

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1702692966 As in the Lilly Ledbetter episode (Ledbetter v. Goodyear Tire & Rubber Co., Inc., 2007), a Supreme Court decision can serve as a catalyst for public debate. Sometimes a grant of cert serves that function, well before a case has been decided or even argued. The Court’s willingness in the mid-1990s to consider whether the Constitution protects a right to physician-assisted suicide brought that issue from the shadows and placed it under a public spotlight. Public conversation and debate continued even after the Court answered the constitutional question in the negative in Washington v. Glucksberg (1997), and polls have subsequently shown steadily rising support for the ability of terminally ill people to have a doctor’s assistance in ending their lives. One study of public opinion on this issue concluded: “Court cases, in this realm as in others, place a human face on an otherwise quite abstract philosophical and legal controversy.”

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1702692968 Defenders of the Supreme Court’s exercise of judicial review must occasionally contend with the criticism that it is essentially undemocratic—“counter-majoritarian”—for unelected life-tenured judges to have the last word on the constitutionality of legislation enacted by the people’s elected representatives. The force of this critique waxes and wanes to the extent that the Court appears out of alignment with public opinion. It is not hard to understand why misalignment would occur with some regularity. Shifts in electoral majorities in response to changes in the public mood can occur much faster than changes on the Supreme Court, where tenures last decades. The first of Franklin D. Roosevelt’s nine Supreme Court appointees, Hugo L. Black, not only outlasted the Roosevelt administration but remained on the Court through the Truman, Eisenhower, Kennedy, and Johnson presidencies before retiring more than halfway through Richard Nixon’s first term. Between mid-1994 and mid-2005, a period of considerable political turmoil, punctuated by the contested election of 2000, there were no Supreme Court vacancies at all. The justices whose behavior provoked the Roosevelt court-packing plan were criticized from the Left; the Warren Court from the Right; and the Roberts Court, to a somewhat more modulated degree, from the Left again.

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1702692970 And yet, over time, the Court and the public seem to maintain a certain equilibrium. Public opinion polls regularly reflect that“diffuse” approval for the Supreme Court—that is, approval of the institution in general, rather than of particular actions—is higher than for other institutions of government. Of course, that fact alone is not particularly revealing. Surveys also demonstrate repeatedly that the current state of civics education is poor, and that the general public knows very little about the Court. For example, only 55 percent of the respondents in a 2005 survey agreed that the Supreme Court can declare an act of Congress unconstitutional. (Only one-third could name the three branches of government.) So perhaps the public expression of trust in the Supreme Court reflects a leap of faith rather than actual knowledge; people want to believe in some governmental institution, and they are more likely to be able to identify what they don’t like about the political branches. Or perhaps the expression of public support for the Court reflects what political scientists call the “legitimation hypothesis,” the theory that once the Supreme Court rules on an issue, a measurable proportion of the public will come to the conclusion that “if they believe it, it must be right.”

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1702692972 Or perhaps, reflecting the awareness of public opinion displayed by the justices quoted at the beginning of this chapter, the Court brings itself into alignment over time, avoiding decisions that will take it far out of the mainstream of public opinion. That would not be surprising. The political scientist Robert A. Dahl observed more than a half century ago that the Supreme Court “is an essential part of the political leadership,” part of the “dominant political alliance.” It was therefore understandable, Dahl said, “that the policy views dominant on the Court are never for long out of line with the policy views dominant among the lawmaking majorities of the United States.”

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1702692974 Since the relationship between the Supreme Court and the political branches is dynamic rather than static, the Court’s actions produce reactions that may in turn reflect back on the Court and, over time, move the Court in a different direction. So a presidential candidate may make the Court a target, as Richard Nixon did when he criticized the criminal procedure rulings of the Warren Court and pledged to appoint justices who would be “tough on crime.” Nixon’s four appointees, some of whom undoubtedly disappointed him in other respects, did over time stop the expansion of criminal defendants’ rights, even if the major Warren Court rulings remained on the books.

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1702692976 Perhaps another way of making Robert Dahl’s point would be to note that Supreme Court justices are members of the nation’s elite, and they tend to share the elite’s perceptions. That was almost certainly the case for the seven justices who in 1973 comprised the majority that declared a constitutional right to abortion, in Roe v. Wade. Four of the seven were appointees of Republican presidents and three of those—Chief Justice Warren E. Burger and Justices Lewis F. Powell Jr. and Harry A. Blackmun, the author of the majority opinion—were named to the Court by Richard Nixon. The Roe v. Wade majority responded to the fact that during the decade before the case reached the Court, leaders of the public health and legal professions had been calling for the decriminalization of abortion, which at the beginning of the 1960s was illegal in every state. In addition, a Gallup poll that was published in newspapers across the country while the Court was working on the case showed that a substantial majority of the public agreed with the statement, “The decision to have an abortion should be made solely by a woman and her physician.” A majority of men, women, Protestants, Catholics, Democrats, and Republicans (68 percent of Republicans, compared with 59 percent of Democrats) agreed with the statement. So the justices could plausibly assume that the decision they were about to hand down would meet with general public approval—as in fact it initially did, before the abortion issue became entangled, later in the 1970s, with partisan politics and the rise of the religious Right.

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1702692978 The political reaction against Roe v. Wade built slowly. The first justice to join the Court after the January 1973 decision was John Paul Stevens, named by President Gerald Ford in December 1975. Yet remarkably enough, the nominee was not asked a single question about abortion during his confirmation hearing. If the senators’ questions during a Supreme Court confirmation hearing provide a reliable window onto the country’s law-related concerns, then it is reasonable to conclude that abortion had not yet become a national political issue nearly three years after the Court’s decision.

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1702692980 During the 1980s, however, the Court came under increasing pressure to repudiate Roe v. Wade. First the Reagan administration and then the administration of President George H. W. Bush asked the Court to overturn the decision, on five separate occasions. In 1980 the Republican party’s platform had called for the first time for the appointment of judges “who respect traditional family values and the sanctity of innocent human life.” With new Supreme Court appointments during the ensuing decade, the margin of support within the Court for maintaining the right to abortion appeared to shrink to the vanishing point.

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1702692982 This was the context in which the Court, on the eve of the 1992 presidential election, confronted a challenge to a restrictive Pennsylvania abortion law. The case, it was clear to all, was a potential vehicle for overturning Roe v. Wade. The votes appeared to be there. Yet the Court, to the surprise of nearly everyone, declined to take that step, instead reaffirming the “essential holding” of the 1973 decision by a vote of 5 to 4 in Planned Parenthood of Southeastern Pennsylvania v. Casey (1992). In an unusual joint opinion by Justices O’Connor, Kennedy, and Souter—all post-1980 Republican appointees—the majority described the pressure on the Court and explained why “principles of institutional integrity” required that Roe v. Wade be reaffirmed. A “terrible price would be paid for overruling,” the three justices wrote, adding that such a step “would seriously weaken the Court’s capacity to exercise the judicial power and to function as the Supreme Court of a Nation dedicated to the rule of law.”

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1702692984 The joint opinion is so revealing of the Court’s view of its connection to the public that it is worth quoting at some length:

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1702692986 The root of American governmental power is revealed most clearly in the instance of the power conferred by the Constitution upon the Judiciary of the United States and specifically upon this Court. As Americans of each succeeding generation are rightly told, the Court cannot buy support for its decisions by spending money and, except to a minor degree, it cannot independently coerce obedience to its decrees. The Court’s power lies, rather, in its legitimacy, a product of substance and perception that shows itself in the people’s acceptance of the Judiciary as fit to determine what the Nation’s law means and to declare what it demands.

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1702692988 The opinion went on to say that “to overrule under fire in the absence of the most compelling reason to reexamine a watershed decision would subvert the Court’s legitimacy beyond any serious question.” Then, it continued:

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1702692990 The promise of constancy, once given, binds its maker for as long as the power to stand by the decision survives and the understanding of the issue has not changed so fundamentally as to render the commitment obsolete… .

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1702692992 A decision to overrule Roe ‘s essential holding under the existing circumstances would address error, if error there was, at the cost of both profound and unnecessary damage to the Court’s legitimacy, and to the Nation’s commitment to the rule of law. It is therefore imperative to adhere to the essence of Roe ‘s original decision, and we do so today.

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1702692994 The Casey decision sparked strong dissent within the Court as well as sustained criticism from outside. It did not, as the three justices explicitly hoped, relieve pressure on the Court or cause those who sought Roe’ s repudiation to withdraw. Acutely self-conscious and somewhat overwrought in tone, the decision nonetheless stands as a fascinating example of the Court’s response to a perceived threat to its own legitimacy in the eyes of the public.

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1702692996 There was nothing subtle about the Casey decision. The issue was familiar, and the Court knew where the support and the attacks were coming from. But suppose an issue is relatively novel, or reaches the Court in a new or unfamiliar context. Where can justices turn for knowledge that they themselves lack?

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