ArchivesProfessor William G. Ross, Cumberland School of Law, Samford University
The Court’s authority — possessed of neither the purse nor the sword — ultimately rests on sustained public confidence in its moral sanction. Such feeling must be nourished by the Court’s complete detachment, in fact and appearance, from political entanglements and by abstention from injecting itself into the clash of political forces in political settlements.
– Felix Frankfurter, dissenting in Baker v. Carr, 1962.
Justice Frankfurter’s eloquent warning about the Supreme Court’s need to remain detached from political entanglements was echoed yesterday by Justice Stephen Breyer in his dissent in Bush v. Gore. Breyer aptly warned that “the appearance of a split decision runs the risk of undermining the public’s confidence in the Court itself. That confidence is a public treasure.” Borrowing language that Charles Evans Hughes used to describe the Court’s disastrous Dred Scott decision, Breyer expressed fear that the Court risked “a self-inflicted wound — a wound that may harm not just the Court, but the Nation.”
The danger that the Court’s decision in Bush will be viewed as partisan is particularly acute because all five “conservative” members opposed Gore’s plea for additional vote recounts, while all four “liberal” members took a contrary position. Each of the Justices moreover favored a position on federalism that is ostensibly contrary to his or her usual position. The five Justices who usually favor states’ rights displayed the least deference to the Florida Supreme Court’s decision, while the four Justices who normally support stronger federal power advocated a higher level of deference to the Florida court. The appearance of partisan division is only partly mitigated by the willingness of Justices Souter and Breyer to agree with the conservative majority that “there are constitutional problems with the recount ordered by Florida that demand a remedy.”
Of course, the appearance of partisanship is not the same as the reality of partisanship. Indeed, a Justice who ruled against his opinion of the law in order to avoid the appearance of partisanship would be as miscreant as a Justice who based his ruling on his partisan preferences. As the Democratic Chief Justice of Arizona observed in a 1917 decision in which the Supreme Court of Arizona ruled in favor of a Democratic gubernatorial candidate in an election dispute that had dragged on for more than a year, the court could not allow “the political affiliations of its members” to influence its decision even though to some critics its judgment “may appear not to be impartial unless it be against the [Democratic] contestant or unfair to him.”
Critics of the Court decision contend that the Court’s need to decide the Bush case was less compelling than it has been in cases in which the other branches of the state or federal governments had failed to properly redress wrongs. As Justice Breyer observed, “the Court is not acting to vindicate a fundamental constitutional principle, such as the need to protect a basic human liberty.” Breyer declared that “no preeminent legal concern, or practical concern related to legal questions, required this Court to hear this case, let alone to issue a stay that stopped Florida’s recount process in its tracks.” In contrast, Chief Justice Rehnquist contended in his concurring opinion that a disputed presidential election raised issues of compelling national importance that were appropriate for the Court to decide.
Although Breyer acknowledged that “the selection of the President is of fundamental national importance,” he declared that this “importance is political, not legal. And this Court should resist the temptation unnecessarily to resolve tangential legal disputes, where doing so threatens to determine the outcome of the election.”
Breyer compared the Court’s intervention in the 2000 election with the membership of five U.S. Supreme Court Justices in the congressionally-created Electoral Commission that in 1877 settled the disputed election of 1876. Breyer contended that the participation of the five Justices “did not lend that process legitimacy,” but “[r]ather, it simply embroiled Members of the Court in partisan conflict, thereby undermining respect for the judicial process.”
Breyer recalled that Justice Joseph P. Bradley, a Republican Justice who cast the decisive vote in favor of the Republican candidate Rutherford B. Hayes, “immediately became the subject of vociferous attacks” in which he was accused of accepting bribes and succumbing to pressure from railroad interests and Republican politicians. Breyer did not mention that Bradley received so many threatening communications that the government placed his house under guard.
In his book From Confederation to Nation: The American Constitution, 1835-1877, Bernard Schwartz acknowledged that the “charge against Bradley’s integrity severely tarnished his remaining career” and that the “spectacle of the justices casting their votes on partisan lines cannot but have had a deleterious effect upon the Court’s reputation.” Schwartz indicated, however, that the Court’s participation in the dispute was worth the price. In contrast to Breyer’s contention that the participation of the five Justices in the settlement of the election failed to legitimize the process, Schwartz plausibly argued that “it is doubtful that the Electoral Commission could ever had been approved — much less had its decision accepted by the country” if the five Justices had not served as members of the Commission.
Although criticism of Bradley and the other justices was widespread and intense, the episode produced no significant or sustained effort to curb the Court’s power. Moreover, the Court’s prestige does not appear to have suffered for long, and the episode did not prevent the Court from embarking on a new era of dubious activism during the next few years, when it began to craft doctrines that limited the powers of state and federal authorities to enact economic regulatory legislation and to prevent racial discrimination. When the Court came under prolonged attack during the period between 1890 and 1937 for its hostility toward economic regulatory legislation, the role of the five Justices in the 1876 election was virtually ignored even by ferocious critics of the Court who copiously attacked the Court and various Justices for alleged misdeeds that long predated 1876.
Additionally, Breyer’s analogy to the election of 1876 is not altogether apt because the Justices who sat on the Electoral Commission were acting extra-judicially and were exercising a quasi-political function. The tenacious public deference toward the Supreme Court is a respect for the Court as an institution and for the rule of law and it does not extend to the non-judicial activities of the Justices. This is why one reason why Chief Justice Warren was so reluctant to chair the commission that investigated the John F. Kennedy assassination, and why Justices generally abjure extra-judicial activities. Although the participation of the five Justices in the Electoral Commission did not deter the Court from soon embarking on a new era of judicial activism, it discouraged Justices from undertaking other public functions and has served as an object lesson down to the present day.
The deleterious impact of the 1876 election dispute on the Court was not that it damaged its prestige but rather that the end of Reconstruction, to which Republicans agreed in return for Democratic acquiescence to Hayes’s election, encouraged some Justices — including Bradley — to begin dismantling civil rights protections for African-Americans.
Like Breyer, Justice Stevens warned in dissent in Bush that the Court’s decision could adversely affect judicial prestige, but he ostensibly confined his remarks to the decision’s impact upon state courts.
Stevens charged that the Court had endorsed Bush’s tacit “lack of confidence in the impartiality and capacity of the state judges who would make the critical decisions if the vote count were to proceed.” He expressed fear that “[t]he endorsement of that position by the majority of this Court can only lend credence to the most cynical appraisal of the work of judges throughout the land.” Declaring that “the true background of the rule of law” is “confidence in the men and women who administer the judicial system,” Stevens declared that while “we may never know with complete certainty the identity of the winner of this year’s Presidential election, the identity of the loser is perfectly clear. It is the Nation’s confidence in the judge as an impartial guardian of the rule of law.”
Stevens’ fear is misplaced. There is little likelihood that many members of the public will understand the Court’s complex opinion well enough to interpret it as lacking confidence in the state judiciary. And those who understand the opinion well enough to draw this conclusion are well able to form an independent opinion about the fairness of state judges. Even if the Court’s opinion did adversely affect public perception of the Florida courts, the opinion would not necessarily tarnish public respect for other state courts.
Stevens’ remarks about the impact of the decision on public confidence in the state judiciary would have greater resonance if applied to public confidence in the Supreme Court. The greatest danger is that, by spending some of its precious goodwill — Breyer’s “public treasure” — the Court will enjoy less public support in future years when it adjudicates controversial public issues that more clearly lie within its jurisdiction and about which it has a more compelling need to make a decision.
This danger is subtle and is part of the very delicate balance between public opinion and judicial power that has enabled the Court to command obedience even when its decisions have been controversial. The threat is not immediate. Since the Court’s intervention in the election is an isolated incident rather than part of any on-going controversy, the Court’s decision — as Justice Breyer acknowledged in his dissent — is not likely to precipitate any movement to curtail the Court’s powers. Any intense animosity arising out the decision may fade as quickly as did the rancor that was directed against the Court in 1877.
Critics of the Court’s decision are more likely to direct their wrath against individual Justices rather than against the Court as an institution. Gore supporters who revile the Court’s decision are mostly liberals who are likely to continue to revere the Court for its historic services to the cause of civil liberties and to maintain their faith in the Court’s role as the ultimate guardian of justice. The abiding respect of liberals for the Court was demonstrated during this year’s presidential campaign, when the Court emerged as a significant election issue for the first time since 1968. Although liberals castigated the Court for its many recent five-to-four conservative decisions, their remedy was not to curb the Court’s powers but rather to elect a president who would appoint liberals to the Court. Since many liberals have alleged for years that the conservative Justices have politicized the Court, the Justices who ruled in favor of Bush had little goodwill to lose among liberals.
Despite the real threats to the Court’s prestige, the Bush v. Gore decision may ultimately help to inspire greater confidence in the Court among many Americans who may have despaired of the ability of the Florida courts or legislature, or the U.S. Congress, to resolve what had rapidly become a constitutional crisis. Although critics of the Court’s decision make a good argument that other political agencies were at least as well able to ensure a lawful and peaceful transfer of presidential power, the immense public respect that the Court commands almost certainly will help to confer greater legitimacy on the outcome on the election than if other public entities had resolved the constitutional issues. The paradox is that the Court’s adjudication of the controversy may have caused the Court to lose some of its own legitimacy.
Meanwhile, any Justices who are wrongly accused of partisanship should take solace in Justice Bradley’s equanimity in responding to the widespread vituperation that he suffered for casting the vote that threw the 1876 election to Hayes: “So far as I am capable of judging my own motives, I did not allow political, that is, party, considerations to have any weight whatsoever in forming my conclusion. I know it is difficult for men of the world to believe this, but I know it, and that is enough for me.”
December 13, 2000
William G. Ross teaches Constitutional Law and Constitutional History at Cumberland School of Law, Samford University, Birmingham, Alabama. He is a 1979 graduate of Harvard Law School.
