"The Cult of the Robe": The U.S. Supreme Court in the American Mind. (Cases, Controversy, and the Court)

By Perry, Barbara A. | Social Education, January-February 2002 | Go to article overview
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"The Cult of the Robe": The U.S. Supreme Court in the American Mind. (Cases, Controversy, and the Court)


Perry, Barbara A., Social Education


IF SOME AMERICANS lapsed into thinking that the Supreme Court of the United States was becoming irrelevant, the historic controversy over Election 2000 disabused them of that misconception. With the number of cases decided by flail opinion now less than half of what it was just a decade ago, the court has simply garnered fewer headlines in recent years. Yet Americans, indeed the world, focused their attention on the Supremes" as the justices grappled with litigation over the outcome of the presidential election. Talk about a teachable moment! Students wanted to know more about the Supreme Court, its justices, and the impact of their decisions on the nation's most important electoral decision.

Bush v. Gore

With the benefit of hindsight, we can begin to analyze the crucial work of the nation's highest court in Bush v. Gore (1) and place it in the context of how the court presents itself to the American people. Commentators, pundits, scholars, politicians, and average citizens alike criticized, as the epitome of partisan judicial behavior, the court's ultimate 54 decision to stop the ballot-counting in Florida. Wasn't it more than coincidental, these critics noted, that the more conservative members of the Court (Rehnquist, Thomas, Scalia, O'Connor, Kennedy, all appointed by Republican presidents) voted to elect the Republican candidate despite the fact that Al Gore had received over 500,000 more popular votes? How could the maintain its traditional legitimacy the face of such criticism? Fortunately for the nation's least democratic branch of government, it had developed a store of goodwill and political capital on which it could draw, as if it had saved for a rainy day. Justice David Souter, in a dramatic voice-over that concludes the court's film designed for visitors, sums up the reservoir of public trust that the Supreme Court has managed to amass throughout its history:

   Most people are willing to accept the fact that the Court tries to play it
   straight. That acceptance has been built up by the preceding hundred
   justices on this Court, going back to the beginning. We are, in fact,
   trading on the good faith and the conscientiousness of the justices who
   went before us. The power of this Court is the power of trust earned-trust
   of the American people. (2)

The most striking fact of the period since Bush v. Gore is how the justices, despite the bitterness displayed in their written opinions, have maintained a dignified public posture in explaining how the court will survive what Justice Ruth Bader Ginsburg (who wrote an angry dissent from the majority's decision in the case) described as "the December storm over the Supreme Court? In a speech that she delivered in Australia just two months after the decision, Ginsburg declared, "Whatever final judgment awaits Bush v. Gore in the annals of history, I am certain that the good work and good faith of the U.S. federal judiciary as a whole will continue to sustain public confidence at a level never beyond repair." (3)

Even as early as the day after the Bush v. Gore decision, Justice Thomas kept a previously scheduled appointment to meet with high school students at the Supreme Court. In a session that C-SPAN broadcast, he explained how civil the justices are to one another, despite the differences among them. Justice Breyer repeated his colleague's description of the justices' relations, using similar language, in an August 2001 address to the American Bar Association. Breyer reported, "In the seven years I have been a member of the Court, I have never heard a voice raised in anger, or the use of any slighting remark, during any of the Court's discussion, no matter how contentious the case." (4)

How different from the other branches of government, where members of Congress, for example, take every opportunity to criticize one another, especially in the media. Justice Anthony Kennedy faced such criticism while representing the court, along with Justice Thomas, at an otherwise routine March 2001 congressional appropriations subcommittee hearing on the Supreme Court's annual budget request.

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