Why America Puts Its Supreme Court On Lofty Pedestal
WASHINGTON — When nine unelected US officials recently told the world's most powerful leader he wasn't above the law, the applause was nearly universal. The Supreme Court's 9-to-0 decision last month not to give President Clinton immunity from a civil suit, a ruling written by the court's most liberal member, is being called remarkable - both for its unanimity and its matter-of-fact approach in dealing with the fundamental powers of America's highest office.
But it also illustrates the stellar stature of America's highest court.
These days, in marked contrast to a White House nagged by scandal and a Congress often locked in bickering, the Supreme Court is riding high in terms of its public image and esteem.
The court does not have the power of purse or sword, but Americans continue to trust it as a fair arbiter of the nation's business - more than other branches of government, according to recent surveys.
Possibly adding to the court's prestige, the justices are deciding more major cases than at any time in the past decade - in areas such as religious freedom, the line-item veto, regulation of the Internet, and assisted suicide.
There's even a popular new mystery novel out this year about the lives of Supreme Court clerks. "The stature and credibility of the court is higher than ever," says Akhil Amar, a scholar at Yale University in New Haven, Conn. "There's an aura around it at the moment."
The positive image of the court notwithstanding, legal scholars continue to ask questions: Does the high court deserve its high rating? Are the caliber of decisions, and their impact, commensurate with the court's image as a shining repository of "equal justice for all"?
More mainstream image
One view is that the court's rulings have become more technocratic and less substantial in the 1990s and that the institution has lost the leadership it developed in the past through a broad vision of rights. Americans like the court because they are reading into it their own desire for something just and equitable, it is felt, not because they follow closely its inner workings or dictums that emanate from behind the imposing Corinthian columns.
"To not know the court is to like it," says Richard Paccele, who studies the court at the University of Missouri. "The court today is cultivating a positive mainstream image, but the cost is its role as a protector of minority rights."
Critics cite the removal of affirmative-action standards by the court in a 1996 decision, involving set-asides for minority contractors, which has hurt minority firms. After not reviewing a federal-court decision that abolished race as a factor in graduate-school admissions at the University of Texas, the rate of black and Hispanic graduate students at top colleges in Texas and California dropped 80 percent.
But other people are more favorable and say the court is handing down the most original rulings in decades. "These are sophisticated rulings, the best in years," says Jeffrey Rosen, legal-affairs editor of The New Republic and a law professor at George Washington University. "It's not fashionable right now for justices to play philosopher kings, that's true. But some exciting things are happening."
In this view, the court is taking up the major issues of the day like assisted suicide. It is participating in the culture wars of recent years, as in last year's gay-rights decision from Colorado and the ruling that women can attend all-male military academies. By its decision on campaign finance and by decisions on redistricting and the upcoming line-item veto - the court is setting the rules for the exercise of power.
For others, decisions in coming days will say much about where the court is headed. The justices "certainly have the raw material to do something that would be important and interesting," says Michael Seidman of Georgetown University in Washington.
A peacetime favorite
Historically, in times other than war, the court has scored higher with the public than other branches of government.
Today this holds true even more. In one sense, the reason is obvious: With divided government and partisan sniping in Washington, when politicians must create a TV image and constantly raise funds, the scholarly-looking justices seem a refreshing alternative. They come out in black robes from behind red silk curtains, and everyone stands. They ask incisive questions. They disappear. It looks like competence personified.
And there's some truth to it. The members of the court don't need to campaign for office every few years. They were selected for life. They don't need speech writers or have to check the polls. The current justices, unlike earlier courts, generally write their own opinions. They are free to dissent, and their rulings are not tied to interest-group pressure.
Moreover, as an institution, the court is uniquely constituted. It is not one targetable political persona, as is a single chief executive. Yet it is smaller than a Congress of 535 people. Congress is covered by TV four times as much as the court is. The White House is covered eight times as much, says Lee Epstein of Washington University in St. Louis.
The court stands out now because it is not part of Washington's political swamp. The carefully cultivated aloofness of the Supreme Court is, in the Washington scene, almost countercultural in nature. The court's warts don't show.
"People don't see the court infighting; it seems more harmonious and less political," says one court-watcher. "With Congress and the White House, we see the blood-letting on the street." Importantly, say scholars, current justices benefit from courageous stands the court took in cases like Brown school desegregation, and the Roe abortion-rights case - when the majority was fragile and the justices felt under great pressure. Those decisions are a main reason the court image is so buffed today.
Justices Don't Have to Wade in Washington Swamp