AMERICANS' FAITH IN THE SUPREME COURT--AND IN THE CONSTITUTION:
A New Survey Shows bush V. Gore's Effect Was Limited

In the immediate aftermath of the United States Supreme Court's ruling ending the contested Presidential election of 2000, commentators complained that the Court had squandered its hard-earned capital as a non-partisan referee by making what appeared to many to be a political decision.

The criticism was not confined to talking heads or legal experts. Even one of the Justices, John Paul Stevens, wrote in dissent that as a result of the majority's decision, the clear loser of the election was "the Nation's confidence in the judge as an impartial guardian of the rule of law."

It now appears that, whatever the short-term effects of Bush v. Gore were, the decision has not done the lasting damage that we commentators and Justice Stevens feared. On the contrary, a nationwide survey commissioned by Columbia Law School finds Americans still overwhelmingly satisfied with the Supreme Court exercising the extraordinary power that it does.

That result may be surprising coming less than a year and a half after Bush v. Gore. But it should not be surprising given the quasi-religious status that Americans have long accorded to the Constitution. Americans' confidence in the Supreme Court, moreover, stands as a challenge to those who criticize the Court from both the right and, increasingly, the left.

The Columbia Law Survey Demonstrates Strong Support for the Court's Role

In my last column, I described a Columbia Law School survey that asked a representative sample of a thousand Americans how they viewed the legal profession. The final question of the survey asked about the Supreme Court. Respondents were asked whether they agreed or disagreed with the following statement: "Even though I sometimes disagree with or dislike the rulings of the United States Supreme Court in particular cases, the fact that the Supreme Court can strike down unconstitutional laws is a good feature of the American system of government."

By setting aside the Court's rulings in particular cases, the survey question asked Americans to think about what lawyers call the power of "judicial review" over the long run.

The survey revealed that Americans are quite happy with the Court's role in our constitutional system. A full 83% of Americans agreed with the statement, with only 13% expressing disagreement. (The remainder had no opinion.) Support for judicial review was strong in every demographic group.

Support was weakest among African-Americans. That is understandable in light of the Court's jurisprudence on civil rights issues over the last generation, and the fact that African-Americans may have been the group that felt most aggrieved by the Court's performance in the 2000 Presidential election. Yet even among this group, support for judicial review was strong, with 74% agreeing with the statement.

A Lesson for Politicians and Political Theorists: The Public Respects the Court

For much of American history, politicians have campaigned against the Supreme Court. Abraham Lincoln denounced the Court's 1856 pro-slavery decision in Dred Scott v. Sandford. Franklin Roosevelt wanted to pack the Court with New Dealers who would uphold his legislative program. Southern Senators denounced the Court's 1954 decision in Brown v. Board of Education invalidating mandatory racial segregation in public schools.

Continuing the pattern, Richard Nixon took aim at Justices who he thought were soft on crime. Then Ronald Reagan and both Presidents Bush echoed new right criticisms of the Court's recognition of a constitutional right to abortion in Roe v. Wade. And most recently, Democratic Senators have decried the current Supreme Court's repeated invalidation of Acts of Congress in the service of states' rights.

Politicians' attacks on the Court have typically been motivated by what the Columbia Law survey question calls results in "particular cases." Yet their rhetoric has often gone much further. When politicians say that judges should "interpret the law rather than make the law," or that judges should not engage in "judicial legislation," the politicians call into question the very practice of judicial review.

The Constitution, after all, is a magisterially vague document. It prohibits "unreasonable searches and seizures." It forbids denials of "the equal protection of the laws." It speaks of "powers . . . reserved to the States." None of these or the many other open-ended provisions of the Constitution is self-defining.

Therefore, except in cases of extraordinarily clear and blatant violations of the Constitution, whenever the Supreme Court decides that some challenged government action violates the Constitution, it makes a somewhat controversial judgment. And precisely because it is controversial, that judgment, from the perspective of those who disagree, can be always characterized as judicial legislation.

Indeed, it is for just this reason that constitutional scholars have long wrestled with their own version of the politicians' complaint, what Yale Law School professor Alexander Bickel called "the counter-majoritarian difficulty." This is simply a fancy term for the fact that judicial review substitutes the views of unelected judges for the views of elected legislatures, and thus often for the views of a majority of Americans. That fact is troubling in a democracy, in which political issues are generally resolved by majority rule.

Justifying Judicial Review: A System That Is Not Always Majoritarian

The Supreme Court and its defenders have at least two answers to the counter-majoritarian difficulty. First, they justify judicial review on the ground that the Constitution's language and structure assume the practice, even though the Constitution nowhere expressly mentions judicial review. In providing for a federal judiciary with the power to decide cases "arising under this Constitution," the argument goes, the Constitution implicitly also provided for judicial review - for that is the very business of the courts.

Second, judicial review can be defended by challenging the premise that our system of government always favors majority rule. The very point of a constitution, according to this argument, is to protect the rights of the minority against the tyranny of the majority. Justice Brennan stated the point well in his dissent from a 1987 decision that held the Georgia death penalty was not administered in a racially discriminatory manner. As Brennan wrote: "It is the particular role of courts to hear" the faint voices of those in the minority, "for the Constitution declares that the majoritarian chorus may not alone dictate the conditions of social life."

To these answers to the counter-majoritarian difficulty, the Columbia Law survey suggests that we may now add a third: At the most fundamental level, judicial review is not counter-majoritarian because an overwhelming majority of the People endorse the practice of judicial review.

In other words, even though judicial decisions "in particular cases" sometimes substitute the Justices' views for those of national, state or local majorities, these particular decisions are taken in the name of the People as a whole, in the sense that the People prefer having the Court decide constitutional matters than leaving such issues entirely to elected representatives.

Put another way, just as democracy is no less democratic because it is representative and not direct, democracy is no less democratic because some of the officeholders the People have approved are judges and not legislators.

Why the People Accept Judicial Review: The Cult of the Constitution

Why would the People want to refer constitutional questions to the unelected Supreme Court, rather than to their own elected representatives? One possibility is that, like Justice Brennan, Americans generally value minority rights as much as majoritarian decisionmaking.

However, I would suggest that this is only a partial explanation. In addition, Americans have long been in the thrall of what may justly be called a cult of the Constitution. For example, for roughly the first fifty years after the Constitution's adoption, it was a commonplace that the new American Republic owed its prosperity to the wisdom of the Founding Fathers. The Philadelphia Convention of 1787 was often described as divinely inspired.

Even when the original Constitution's chief flaw--its compromises over slavery--was tearing the country apart in the decades leading up to the Civil War, partisans on both sides insisted that the true Constitution supported their cause. Reverence for the Constitution, even as particular decisions come in for criticism, remains a staple of our public culture today.

One might think that people could revere the Constitution while despising the Supreme Court, and indeed, that attitude too has been a standard leitmotif in American history. But it is very much an undercurrent. To a much greater degree, the main current has been one of equating the Constitution with the Supreme Court.

The Court itself bears substantial responsibility for this association. Consider, for example, the 1958 decision in Cooper v. Aaron - the only opinion ever signed by all nine Justices. There, the Court affirmed what it called "the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution." It also added that since the early nineteenth century, this principle has "been respected by this Court and the country as a permanent and indispensable feature of our constitutional system."

The actual result in the Cooper case was clearly right. Arkansas Governor Orval Faubus had resisted the desegregation of public schools, and the Court told him in no uncertain terms that willful disobedience of a judicial order would not be tolerated. However, recent cases have relied on Cooper's "basic principle" not only to put down outright defiance but to deny Congress any role in interpreting the Constitution. Using Cooper's precedent that way takes the Court's rhetoric out of context.

Over the last five years, the Court has extended and gone beyond Cooper's reasoning in decisions striking down provisions of the Religious Freedom Restoration Act, the Age Discrimination in Employment Act, the Violence Against Women Act, and the Americans With Disabilities Act. In these rulings the Court has asserted a doctrine of judicial exclusivity - under which the judiciary, and never the legislature, says what the Constitution means - rather than a doctrine of judicial supremacy - under which the Court invalidates political actors' decisions denying minority rights but grants some deference to the legislature when the latter seeks to expand rather than to contract constitutional rights.

As noted above, Democratic Senators have begun to question the Court's efforts to freeze Congress out of constitutional interpretation entirely in decisions like these. Whether these Senators succeed will depend in substantial measure on just why it is that Americans trust the Supreme Court.

To the extent that trust in the Court is based on the view that the Court will protect minority rights, the public may eventually grow tired of the Court's invalidation of civil rights laws. After all, a broad cross-section of Americans was adversely affected by this series of decisions: religious believers, older Americans, women, and the disabled.

On the other hand, to the extent that the Court has successfully fostered the view that the Court alone speaks for the Constitution, the Democratic Senators' complaints will likely fall on deaf ears. If the public respects the Court not just as the ultimate expositor of the Constitution, but as its sole expositor, the current Court's judicial exclusivity doctrine will likely prevail.