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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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1702692998 The obvious answer lies with the parties themselves and the briefs they submit in advance of the argument. But just as cert petitions have word limits (9,000 words), so do the briefs on the merits that the parties submit once a case is granted (15,000 words for each side, plus an extra 6,000 words for the petitioner to file a reply brief). Often, the parties consume nearly all the allotted space in setting out the background of the case and the legal arguments. There is little room left for what the justices may most want to know: the larger context, the implications of ruling for one side or the other.

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1702693000 This is where the amicus curiae, the friend of the court, comes in. Assuming each side agrees to the other’s list of amici, as is almost always the case, there is no upper limit on the number of “friends” the parties can marshal. (The Court itself can grant permission for an amicus filing if there is a dispute between the parties over the issue.) While an amicus is, of course, primarily a friend of the particular party in support of which it is submitting a brief, the phrase “friend of the court” is not a misnomer. An informative amicus brief does the justices a favor by presenting, within a 9,000-word limit, useful and relevant information that supplements, without duplicating, the information in the party’s brief. Justice O’Connor’s reliance on the amicus briefs in the University of Michigan Law School admissions case is an example of how important these filings can be. The helpful potential of a good amicus brief is not lost on the lawyers who appear before the Court, and the number of such briefs has grown substantially. While there were only fifteen amicus briefs filed in Roe v. Wade, today there are often at least that many in fairly routine cases, and in major cases the number runs into the dozens. Amicus briefs are often used by interest groups to stake out a public position in cases within the group’s area of interest. The brief can then be distributed to members and potential donors as a way of indicating that the group is a player on the Supreme Court stage.

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1702693002 The solicitor general’s office, which represents the federal government as a party in many of the Court’s cases, is also an active amicus, informing the justices of the potential impact on federal programs in cases that do not involve the government directly. In order to evaluate the advisability of filing a brief, the solicitor general’s office has a system for learning which federal agencies might have a stake in the outcome of a pending non-federal case. But no system is perfect, and a recent failure illustrates what can happen when the justices unknowingly rely on partial information.

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1702693004 In Kennedy v. Louisiana, a case decided in 2008, the question was whether it was constitutional to impose the death penalty for the rape of a child if the crime did not also involve murder. Years earlier, shortly after restoring capital punishment, the Court had ruled in Coker v. Georgia (1977) that the death penalty was not constitutionally acceptable for the rape of an adult woman. Louisiana was one of a handful of states that sought to extend its death penalty, beyond murder, to child rape. Was such a penalty one of the “cruel and unusual punishments” that the Eighth Amendment prohibits?

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1702693006 As in other categorical challenges to the application of the death penalty, the Court surveyed the sentencing landscape. With only six states imposing capital punishment for the rape of a child, the majority concluded that there was a national consensus against this use of the death penalty. The vote to declare the Louisiana law unconstitutional was 5 to 4. Writing for the majority, Justice Kennedy noted that while Congress had expanded the federal death penalty during the 1990s, none of the new applications involved the rape of a child. The observation bolstered the majority’s conclusion.

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1702693008 But the observation was incorrect. Neither the parties, nor the solicitor general, nor any of the amici were aware that only two years earlier, Congress had made the rape of a child subject to the death penalty for members of the armed forces governed by the Uniform Code of Military Justice. This inconvenient fact came to light after the Court had delivered its decision and recessed for the summer. Both Louisiana and the solicitor general’s office filed briefs asking the justices to reconsider the case. Briefs flew back and forth for weeks. Eventually, the Court announced that it would stand by its decision.

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1702693010 In addition to institutional embarrassment in many quarters, there was a particular irony to this failure of information. The Court’s Eighth Amendment jurisprudence depends to a considerable measure on the justices’ assessment of public opinion as reflected in statutes. A punishment that is demonstrably “unusual” is deemed constitutionally problematic. On this basis, the Court has invalidated the death penalty for mentally retarded defendants who commit murder (Atkins v. Virginia, 2002) as well as for youthful killers (Roper v. Simmons, 2005). But this type of analysis depends on accurate information. The Court is vitally interested in public opinion, but it can’t read minds. Like the rest of us, the justices only know what they learn on their own or what someone tells them.

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