Academic journal article The Yale Law Journal

Making Our Democracy Work: The Yale Lectures

Academic journal article The Yale Law Journal

Making Our Democracy Work: The Yale Lectures

Article excerpt

This is a time when many Americans distrust our governmental institutions. Perhaps that is a good reason to discuss the institution I know best, the Supreme Court, and to ask why the public trusts that institution. When I first was appointed to the Court, Justice Blackmun, my immediate predecessor, told me about two interesting features of the job. First, he said, you will find this "an unusual assignment." Second, he said, ordinary Americans have "an unquenchable thirst" for knowledge about the Supreme Court. He told me, whenever I have an opportunity to explain to others what I do, particularly those who are not judges or lawyers, to take that opportunity. And that is what I shall try to do in these lectures.

My reason for doing so is Justice Blackmun's reason. Unless the public understands the institution, it is unlikely to support it. And in a democracy public support for any public institution is necessary. Without it the institution may wither, perhaps die. Part of my job, then, is to explain what we do and why it is valuable for ordinary Americans. By doing so, perhaps I can help the public at least put in perspective their questions about the value to our democracy of an independent judiciary.

I have organized my discussion through the use of two questions. The first, which I shall discuss this afternoon, focuses upon judicial review--the fact that the Court has the power to set aside as unconstitutional an act of Congress. Where did it come from? Why does the Court have it? These are very old questions, which have spawned a voluminous literature. But I shall rephrase these questions, emphasizing one aspect of the general problem: Why does the public do what the Court says? How has the Court earned the public's trust?

I hear these latter questions asked frequently by judges from other countries, particularly those from Asia, Africa, and Latin America. What is the secret? they ask. Where does the Court's enforcement authority come from? Why does it work? This afternoon I shall tell you what I tell them. I shall illustrate what I think of as a matter of public trust. Tomorrow afternoon, I shall consider a second matter: what can the Court do to help maintain that public confidence?


When I try to answer the foreign judges' questions, I show them the Constitution itself, a brief document phrased in general terms. And I tell them that most who read it will find in it a coherent effort at its heart to create a democracy, a certain kind of democracy. Its seven articles (and a few later amendments) create basically democratic political institutions, so that the people themselves can decide for themselves (through elected representatives) what kind of nation they want, how public policy problems should be solved, and what laws they should enact. At the same time, the Constitution, mostly through amendments, protects basic individual liberties, assures a degree of equality, divides power both vertically (state/federal) and horizontally (legislative/executive/judicial) so that no single group of officials will become too powerful, and guarantees a rule of law. The Constitution sets boundaries within which the institutions of government must act. And the Court's constitutional job is primarily that of a boundary patrol. It typically decides difficult close questions, such as whether, say, abortion, prayer in schools, or assisted suicide falls on one side or another of the boundary lines that the Constitution sets.

This explanation, however, does not offer the foreign judges much help. They still want to know why Americans follow what the Court says. There is no secret answer, I reply. The answers lie in history, in judicial and public practices, in the development of customs and understandings among the public. And I use several cases to illustrate what I mean.

A. Marbury

Who gave the Court the power of judicial review--the power to set aside a federal statute as unconstitutional? …

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