Although the board’s segregationists continued to press their cause, they were largely unsuccessful. When they sought to deny contract renewal to forty teachers who had tried to help the black students, the moderate members walked out. In the recall election the moderates won a close but clear victory. The newly constituted board then voted to reopen the schools. In 1959, one year after the Court decided Cooper v. Aaron, integrated schools returned to Little Rock.53
The turmoil and the school closings imposed a high personal cost on many students. Students of both races suffered, some suffering permanent harm. The Little Rock Nine displayed much bravery and dignity in dealing with the hatred around them. Some students (including members of the Little Rock Nine) attended schools in other districts or out of state. Others took correspondence courses from the University of Arkansas. Some followed their teachers’ presentations on local television stations. But for many these alternatives did not work. Central High’s all-state football team fell apart, and many members never received high school diplomas. And what was true of the team was true of the entire class. Many of Central High’s “Lost Class of ’59” were unable to qualify for admission to college. Many found their lives changed permanently and for the worse.54
In addition to losing their education, their high school activities, perhaps their chance of college, many later came to regret their behavior at the time. They did not know how to explain their refusal to help their new black classmates. Some in later life worked to improve race relations. And in 1999, over forty years after troops appeared at Central High, Hazel Bryan, the woman photographed with her face contorted in rage, appeared publicly with one of the Nine, Elizabeth Eckford, to explain how they had achieved reconciliation.55
Others suffered setbacks. Brooks Hays, the congressman who arranged for Governor Faubus to meet with President Eisenhower, became known as a “moderate.” He lost the next election, while Governor Faubus remained in office until 1967.56
What happened in Little Rock did not produce speedy integration throughout the South. The civil rights movement was just beginning. Judges had not yet tried school busing as a remedy. But the Little Rock case did help prevent further violent community confrontations. It helped begin a process of integration that, in practice, is not complete. But today Central High is integrated. Fifty-two percent of its twenty-five hundred students are black; 42 percent are white. It has become one of the best public high schools in America, with 867 students taking at least one Advanced Placement course.57
For present purposes, the Little Rock story represents a hard-earned victory for the rule of law. The Court’s determination to enforce Brown was not solely responsible. The arrival of 101st Airborne paratroopers made a critical difference, as did the juxtaposition of two photographs, the first showing a white woman’s enraged face, the second showing federal troops surrounding and protecting the black children. So did the decision of a district judge ordering a governor to stop his interference, a decision that the president later enforced by sending troops. But the Court’s assertion of judicial supremacy—similar to that made earlier by the president, repeated by the Little Rock Chamber of Commerce, and used by others who sought integration (and an end to racial violence) in the South—was a critical ingredient.
Today, only a mile away from Central High, one can find the grave of the wife of the Cherokee chief Ross. That grave marks the spot where she died on the Trail of Tears on her way to Oklahoma—after the government evicted her and her fellow Cherokees from their Georgian lands. The grave and the school together tell a story about acceptance of the rule of law in America. Although the distance between the grave and the school is small, the nation had come a long way in the time between the two decisions that they symbolize. It was moving in the right direction.
Chapter Six
A Present-Day Example
IN RECENT DECADES any number of Court decisions have closely divided the justices and proved highly unpopular with large numbers of Americans. Consider, for example, the decisions protecting a woman’s decision to have an abortion in the early months of pregnancy. Or consider the decisions forbidding prayer in public schools. In such cases the constitutional questions are difficult; not surprisingly, the judges, who patrol the Constitution’s boundaries, have reached different conclusions. As the issues divide judges, they divide communities. Supporters and opponents have marshaled strong arguments as to why the other side is wrong. Some feel strongly that the life of an embryo must be protected or that young students who attend public schools should be exposed to religion. Others feel strongly to the contrary. Nonetheless, despite the disagreement and related emotions, despite protests, Americans by and large have adhered to the Court’s decisions. And most opponents, even, for example, opponents of the abortion decisions, look for lawful methods to change unwanted decisions (for example, through constitutional amendment, the president’s appointment power, and consequent erosion of, or change in, current law made by the Court itself).1
Focus for a moment on Bush v. Gore. The 2000 presidential election was close. The Democratic Party candidate, Albert Gore, won the popular vote nationwide. But the Republican Party candidate, George Bush, after litigation that ultimately reached the Supreme Court, secured Florida’s disputed electoral votes, won a majority of the votes in the Electoral College, and became president of the United States.2
That result turned on technical but important constitutional matters. The Constitution provides that the “Person having the greatest Number” of (currently 538) electoral votes for president, “shall be the President, if such Number be a Majority of … Electors appointed.” The Constitution entitles each state to a number of electors equal to the “Number of Senators and Representatives” from that state. Furthermore, it requires each state to select its electors “in such Manner as the Legislature thereof may direct.” Florida’s legislature, like that in almost every state, directed that the presidential candidate who receives the highest popular vote would receive all the state’s electoral votes.3
Initially, Bush led Gore in Florida by fewer than two thousand votes out of the roughly six million votes cast. After an automatic recount diminished Bush’s margin of victory but still showed him coming out ahead, Gore challenged the results and sought recounts in four congressional districts that traditionally voted Democrat. On December 8, after a series of lower-court decisions, the Florida Supreme Court agreed to order a recount of the entire state. Bush immediately claimed that the Florida court’s decision ordering these recounts violated the federal Constitution. On December 9, the Supreme Court agreed to hear the case. And three days later it held in favor of Bush by a vote of 5 to 4.4
Three members of the Court majority believed the Florida court’s decision strayed so far from what Florida statutes required that it violated the federal constitutional provision empowering the state’s legislature (not its courts) to direct how the state should choose its electors. Other members of the Court found a fundamental unfairness in the fact that the Florida court had permitted its statewide recount to proceed with different counties judging the validity of ballots according to different standards, including standards that might favor the candidate of one party over the other. For a combination of these reasons (along with the fact that the Electoral College was soon due to meet) the Court majority ordered Florida to stop its recount—at a point when Bush still held a narrow majority of the popular vote.5
Four members of the Court (including me) dissented on the critical point of continuing the vote count. Pointing to statutes that permitted Congress to eventually resolve electoral disputes of this kind, they argued that political institutions and state courts, not the U.S. Supreme Court, should decide the questions at issue. They concluded that Florida should be allowed to continue to its statewide recount as it wished. I agreed with the dissent. Because I believed that Congress and other political institutions were fully capable of resolving this intensely political dispute, I thought the Court should not have decid
ed to hear the case. I thought the Court, having decided to hear the case, should have decided it differently. I could find no good reason for ordering the Florida Supreme Court to stop its recount, and I would have allowed the recount to continue. Because I believed that the public would consider the Court’s decision to be based on political preferences rather than law, I wrote that the decision was a “self-inflicted wound.” By stopping the recount, perhaps calling the election, the Court had hurt itself.6
Whether the decision was right or wrong is not the point here. If I and three other members of the Court thought the decision was very wrong, so did millions of other Americans. For present purposes, however, what is important is what happened next. Gore, the losing candidate, told his followers not to attack the legitimacy of the Court’s decision. And despite the great importance of the decision, the strong disagreement about its merits, and the strong feelings about the Court’s intervention, the public, Democrats as well as Republicans, followed the decision. They did so peacefully, with no need for troops as in Little Rock, without rocks hurled in the street, without violent massive protest. The leader of the U.S. Senate, Harry Reid, a Democrat, later said that the public’s willingness to follow the law as enunciated by the Court constitutes a little-remarked, but the most remarkable, feature of the case. I agree.7
THE CHEROKEE CASE, Dred Scott, Little Rock, and Bush v. Gore are all different. In the Cherokee case the president sent troops not to enforce the Court’s decision but, on the contrary, to evict the Cherokees and send them to Oklahoma. In Dred Scott the Court’s own faulty decision helped bring about a war that the Court had sought to avoid. In Little Rock a president and the Court together enforced a decision that was highly unpopular in the South and together helped to eventually make the Constitution’s protection of racial minorities effective. In Bush v. Gore the public simply assumed, as it does today, that it should peacefully follow an important controversial decision.
The cases show that public opposition to a Court decision can take many forms. Like Georgia’s governor and his fellow Georgians in the Cherokee case, a public official or the public itself might refuse to follow a Court order. Like Andrew Jackson, opponents might find a way to avoid violating the order in an individual case but still refuse to apply the Court’s legal principle to other instances. Like Abraham Lincoln after Dred Scott, opponents might express uncertainty about whether the Court has more right to interpret the Constitution than do the states or the people. Or, like much of the South after Brown, opponents might simply delay, trying to wait out or outmaneuver attempts at enforcement.
The examples taken together nonetheless make a simple point: America’s public officials and the American public have come to accept as legitimate not only the Court’s decisions but also its interpretations of the Constitution. The public has developed a habit of following the Court’s constitutional interpretations, even those with which it strongly disagrees. Today we find it as normal to respect the Court’s decisions as to breathe the air around us.
This public habit has obvious advantages. An effective judiciary, capable of enforcing contracts honestly without corruption, helps, as much as any other institution, to encourage economic investment, and thus growth and prosperity. An increasingly diverse American population has come to realize the importance of resolving serious differences through law, hence following a court’s conclusion even when it is unpopular. Furthermore, experience abroad, say in pre–World War II Europe, makes clear that majorities can become tyrants, and it thereby underlines the importance of making effective the Constitution’s efforts to protect minorities and to protect individual liberty—even when their enforcement is unpopular.
But that is not the end of the matter. The examples also show that the public’s trust cannot be taken for granted. Public trust does not follow automatically from the existence of a written constitution. It must be built, and once built, it must be maintained. To maintain the necessary public confidence in the Court’s decisions, each new generation has certain obligations. It must learn how our constitutional government works, become aware of its history, be encouraged to participate in the democratic process, and observe the preceding generation as it builds on those public customs.
This must happen primarily through civic education. But the Court too has responsibilities. Abraham Lincoln, after reading the Dred Scott decision, said he doubted that the public was always obligated to follow the Court’s “last word.” To help maintain the public’s confidence, the Court must exercise its power of judicial review in a manner that honors the lessons of the past. Part II will examine some of the ways in which I believe the Court itself can help accomplish this difficult but critical task.
PART II
DECISIONS THAT WORK
THE COURT HAS A SPECIAL RESPONSIBILITY TO ENSURE THAT the Constitution works in practice. While education, including the transmission of our civic values from one generation to the next, must play the major role in maintaining public confidence in the Court’s decisions, the Court too must help maintain public acceptance of its own legitimacy. It can do this best by helping ensure that the Constitution remains “workable” in a broad sense of that term. Specifically, it can and should interpret the Constitution in a way that works for the people of America today. Here I explain why and how it can do so.
Part II discusses what the Court must do to deserve and to maintain the public trust it has earned. I argue that the Court can best fulfill this obligation through rulings and interpretations that help the Constitution work in practice. This requires applying constant constitutional principles to changing circumstances. I argue that in making difficult decisions, the Court should recognize and respect the roles of other governmental institutions—Congress, the president, executive branch administrators, the states, other courts—and it should take account of the experience and expertise of each. I describe several distinct approaches, each specific to a particular institution, that I believe will help the Court build productive governmental relationships—but without the Court’s abdicating its own role as constitutional guardian.
In addition, I argue that the Court should interpret written words, whether in the Constitution or in a statute, using tools that help make the law effective in practice. Judges should use traditional legal tools, such as text, history, tradition, precedent, and purposes and related consequences, to help find proper legal answers. But courts should emphasize certain of these tools, particularly purposes and consequences. Doing so will make the law work better for those whom it affects.
Taken together, the following chapters describe a set of pragmatic approaches to interpreting the law. I do not argue that judges should decide all legal cases pragmatically. Rather, I suggest that by understanding that its actions have real-world consequences and taking those consequences into account, the Court can help make the law work more effectively and thereby better achieve the Constitution’s basic objective of creating a workable democratic government. At the same time, the Court can help maintain the public’s confidence in the legitimacy of its interpretive role. This point, which returns full circle to Part I, is critical.
Chapter Seven
The Basic Approach
MAINTAINING PUBLIC ACCEPTANCE requires a Constitution that works well for the people today. The Court can help achieve this objective in two ways. First, the Court should reject approaches to interpreting the Constitution that consider the document’s scope and application as fixed at the moment of framing. Rather, the Court should regard the Constitution as containing unwavering values that must be applied flexibly to ever-changing circumstances. The Court must consider not just how eighteenth-century Americans used a particular phrase but also how the values underlying that phrase apply today to circumstances perhaps then inconceivable. Second, when the Court interprets the Constitution, it should take account of the roles of other governmental institutions and the relationships among them.
The Constitution must work in both senses, that is, t
he Court must interpret the law in ways that help that document work well for Americans, and the public must accept the Court’s decisions as legitimate. But this book is essentially about the Court. Thus this part will focus on how the Court might go about producing workable interpretations of the law. (Before continuing to read this part, the reader should now turn to Appendix B and review how the modern Court works.)
ALTERNATIVE APPROACHES: ORIGINALISM, POLITICS, SUBJECTIVE PREFERENCE
SOME JUDGES BELIEVE the best way to interpret the Constitution, while building the public’s confidence in the objectivity of the Court’s decisions, lies in an approach called originalism. The judges who follow this approach look to history to discover what those who wrote the Constitution most likely thought about the content and scope of a constitutional phrase, and they interpret the phrase accordingly. The Sixth Amendment, for example, says that in “criminal prosecutions, the accused shall enjoy the right … to be confronted with the witnesses against him.” Does this phrase mean that a child witness, testifying against an accused abuser, must face the accused directly in court—despite the trauma this may cause the child and the potential that he or she will be intimidated by the accused’s presence? Does it mean that a prosecutor cannot introduce into evidence the dying statement (obviously made out of court) of a murder victim identifying the accused?1
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