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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1702693015 美国最高法院通识读本 [:1702690389]

1702693016 美国最高法院通识读本 Chapter 8The Court and the world

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1702693018 During the first decades after independence, some legislators and other leaders of the new United States were eager to insulate the country’s legal system against corruption from the old regimes of Europe. Between 1799 and 1810 the legislatures of New Jersey, Kentucky, and Pennsylvania passed statutes forbidding the state courts from citing any cases decided by English courts after July 4, 1776. In private correspondence, Thomas Jefferson supported the effort to rid American courts of English law.

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1702693020 But even then, the American attitude toward foreign law was ambivalent, hardly universally hostile. The first paragraph of the Declaration of Independence, after all, referred to “a decent respect for the opinions of mankind.” The Federalist Papers contain references to more than five hundred foreign place-names. Early Supreme Court opinions included abundant references to foreign law, and accounts of Napoleon’s legal reforms in France were widely circulated. Much later, twentieth-century Americans watched with pride as the nations of Europe followed the U.S. model in embracing the idea of a constitutional court, empowered to invalidate legislation deemed incompatible with the country’s basic charter. As these courts spread their wings in new post–World War II or post–Cold War democracies, it was common for their judges to invoke U.S. Supreme Court precedents.

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1702693022 But despite widespread respect for the Supreme Court, no country has simply imported the American experience wholesale. While the Framers of the U.S. Constitution had little in the way of practical experience to guide them, the architects of the new constitutional systems could evaluate the strengths and weaknesses of the American experience. The choices they made are illuminating.

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1702693024 For example, no country in the world has chosen to bestow life tenure on its judges. A single nonrenewable term is the most common model. The fifteen members of the Italian Constitutional Court serve for nine years, whereas the sixteen justices of the Federal Constitutional Court in Germany serve for twelve. South Africa’s Constitutional Court, which was created by the postapartheid constitution in 1994 and quickly established itself in the forefront of constitutional courts, has twelve-year terms for its eleven justices.

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1702693026 While a complete inventory of the judicial tenure of the world’s constitutional courts is beyond the scope of this book, these examples demonstrate that other countries have seen little to emulate in the U.S. model of life tenure. Not coincidentally, the confirmation battles that mark the U.S. judicial selection process, even for lower court judges, are largely absent. This is undoubtedly due in large measure to differences in the rules for selecting and confirming judges. In Germany, for example, confirmation requires a two-thirds majority, a rule that effectively mandates political compromise at the beginning of the process. But the scheduled turnover created by term limits also contributes to the lowered temperature by removing the prospect that a political party temporarily in power can exercise long-lasting control over the judiciary.

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1702693028 Another difference is that European courts, at least, tend to observe a norm of unanimity. Separate opinions are disfavored and, in some countries, even officially forbidden. When judges are permitted to note a dissenting view, they are often required to do so anonymously. Oral arguments are rare. Taken as a whole, rules like these make it less likely that judges will take on the role of public—or polarizing—personalities.

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