Who Participates?



When the Court interprets the Constitution, it has plenty of company. Congress, the White House, government agencies, interest groups, the general public, and the states are all legitimate players. Before a case is ever considered, Congress or the states must enact a law, or the executive branch must promulgate a regulation. Once a case is in court, the states, the Justice Department, and congressional coalitions—sometimes as parties to the case and sometimes as amici (“friends of the court”)—press their views upon the judiciary. After a decision is issued, elected government officials may seek to expand or limit the holding through a number of techniques, including subsequent statutory action, creative interpretation and enforcement (to the point of nonenforcement), or nullifying the ruling through constitutional amendment. If a court lacks jurisdiction to decide a constitutional issue, the resolution of the dispute is left entirely to the elected branches.

Elected government influences extend well beyond particular adjudicated disputes. The number of Justices who sit on the Supreme Court and the Court’s appellate jurisdiction are both subject to elected branch tinkering, as discussed in the previous chapter. Federal judges depend on presidential nomination and Senate confirmation. They depend on congressional support for their budgets, which must be justified and defended as with any agency. All of these actions are exposed to the full glare of social and political scrutiny.

Social Pressures

Just as the Supreme Court leaves its mark on American society, so are social forces added to the mix of constitutional law. The Court, frequently regarded as a nonpolitical and independent branch of government, is very much a product of its times. Justice Cardozo reminded us that the “great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by.”1 In 1905, the Supreme Court remarked that as a result of the general grant of powers expressed in the Constitution, “as changes come in social and political life it embraces in its grasp all new conditions which are within the scope of the powers in terms conferred.”2 At times, those social and political changes are recognized and accepted by the Court; on a number of occasions, they force the Court to make changes in judicial doctrines. Max Lerner noted that judicial decisions “are not babies brought by constitutional storks, but are born out of the travail of economic circumstance.”3

Morris Raphael Cohen, an early student of legal realism, denied that the law is a “closed, independent system having nothing to do with economic, political, social or philosophical science.”4 Lord Radcliffe counseled that “we cannot learn law by learning law.” Through this tantalizing phrase, he meant that law must be “a part of history, a part of economics and sociology, a part of ethics and a philosophy of life. It is not strong enough in itself to be a philosophy of itself.”5

Social and political forces affect the process by which a multimember Court gropes incrementally toward a decision. In such areas as civil rights, sex discrimination, church and state, abortion, and criminal procedures, the Court moves with a series of half steps, disposing of the particular issue at hand while preparing for the next case. Through installments, it lays the groundwork for a more comprehensive solution, always sensitive to the response of society and the institutions of government that must enforce judicial rulings. This social and political framework sets the boundaries for judicial activity and influences the substance of specific decisions, if not immediately then within a few years. A purely technical approach to the law misses the constant, creative interplay that takes place between the judiciary and society at large.

The Constitution’s framers understood that public opinion would shape constitutional discourse.6 Alexander Hamilton and James Madison both recognized that a written Constitution could never trump the will of the people. Hamilton, commenting on freedom of the press, said that “whatever fine declarations may be inserted in any constitution respecting it, [it] must altogether depend on public opinion, and on the general spirit of the people and of the government.”7 Madison also heralded the power of public opinion, arguing that the “ultimate authority … resides in the people alone.”8

Public debate over the death penalty is instructive. In 1972, the Supreme Court of California declared the death penalty a violation of the state constitutional ban against cruel or unusual punishments. Within nine months, the voters of California amended the state constitution to reinstate the death penalty.9 At the national level, in 1972, the Supreme Court abruptly struck down death penalty statutes in Georgia and Texas as cruel and unusual because of the erratic nature of their application. The 5 to 4 majority focused on the arbitrariness and inequalities in state practices: the increasing rarity of executions and the application of that punishment to blacks more than whites, to men more than women, and to the poor more than the rich.10 The Court acknowledged that cruel and unusual punishment requires “a flexible analysis that recognize[s]‌ that as public opinion change[s], the validity of the penalty would have to be re-examined.”11 Following that decision, the majority of states immediately reinstituted the death penalty while adding new procedures. The Court reviewed the changes in Georgia’s statute and upheld, 7 to 2, the new guidelines.12

Twenty-five years later, when death penalty opponents had won several important political victories, the annual number of executions began to decline.13 Consistent with this shift in public attitude, the Supreme Court found it unconstitutional to execute mentally retarded people and to have judges, not juries, impose death penalty sentences.14 In its ruling on mentally retarded offenders, the Court specifically pointed to “a national consensus” having developed against such executions.15 It did not look to the text of the Constitution or to the framers’ intent, and certainly not to its own decisions.

It is too flippant to say that the Supreme Court follows the election returns, but a number of studies show that the Court often stays within the political boundaries of its times.16 When it strays outside and opposes the policy of elected leaders or social trends, it does so at substantial risk to its legitimacy. The Court maintains its effectiveness by steering a course that fits within the permissible limits of public opinion.

The judiciary is not a political body in the same sense as Congress and the President, but pragmatism and statesmanship must temper abstract legal analysis. Tocqueville noted in the 1840s that the power of the Supreme Court “is enormous, but it is the power of public opinion. They are all-powerful as long as the people respect the law; but they would be impotent against popular neglect or contempt of the law.” Federal judges “must be statesmen, wise to discern the signs of the times, not afraid to brave the obstacles that can be subdued, nor slow to turn away from the current when it threatens to sweep them off. …”17

During his service as a federal appellate judge, William Howard Taft commented on the interplay between judicial decisions and public opinion. He said that the right to publicly criticize judicial action is “of vastly more importance to the body politic than the immunity of courts and judges from unjust aspirations and attack.” He added: “Nothing tends more to render judges careful in their decisions and anxiously solicitous to do exact justice than the consciousness that every act of theirs is to be subjected to the intelligent scrutiny of their fellow-men, and to their candid criticism.”18 Some of this criticism would come from “learned text-writers” and law reviews, but Taft also saw the value of scrutiny from the general public. He observed: “[I]‌f the law is but the essence of common sense, the protest of many average men may evidence a defect in a judicial conclusion though based on the nicest legal reasoning and profoundest learning.”19

Opposition to slavery came from the public, not from judicial, executive, or legislative actions. Individual Americans, untutored in the fine points of constitutional law, viewed slavery as repugnant to fundamental political and legal principles, especially those embedded in the Declaration of Independence. The essential antislavery documents were private writings and speeches, not court decisions or legislative statutes.20 Citizens felt a strong duty to express their opinions on constitutional rights. They deferred neither to courts nor legislatures. Americans of the mid-nineteenth century “were not inclined to leave to private lawyers any more than to public men the conception, execution, and interpretation of public law. The conviction was general that no aristocracy existed with respect to the Constitution. Like politics, with which it was inextricably joined, the Constitution was everyone’s business.”21

The responsiveness of courts to the social community is felt especially at the local level. District judges have strong ties to their local communities. They are selected in part because often they were born and educated in their district, practiced law there, and participated in local politics. These local allegiances affect their decisions in such areas as civil rights, labor relations, and sentencing of Vietnam draft resisters. As public opinion turned against the Vietnam war, federal district judges responded by handing down lighter sentences against draft resisters.22 A conference of federal judges in 1961 agreed that public opinion “should not materially affect sentences” and that the judiciary “must stand firm against undue public opinion.” Nevertheless, after adding the qualifier “undue,” the judges cautioned that “this should not mean that the community’s attitude must be completely ignored in sentencing: although judges should be leaders of public opinion, they must never get so far out in front that the public loses sight of them.”23

Federal judges are appointed for life and are immune from periodic campaigning for electoral office, but they know that the ability to write acceptable opinions depends on sensitivity to the public. This consideration plays into the assignment of opinions. In 1944, Chief Justice Stone initially assigned the Texas “White Primary” case to Justice Frankfurter. Justice Jackson expressed his misgivings to both Frankfurter and Stone, suggesting that because of “Southern sensibilities,” it was unwise to have a Vienna-born Jew, raised in New England (the seat of the abolition movement), write the majority opinion striking down a Texas statute governing the election of Democrats. With Frankfurter’s knowledge and consent, Stone transferred the case to Stanley Reed, a native-born, Protestant, and old-time Kentuckian. Reed was a Democrat of long standing, whereas Frankfurter’s past ties to the Democratic party were suspect.24

New appointments allow the Supreme Court to incorporate contemporary social and political attitudes. So long as judges “are relatively normal human beings,” observed Chief Justice William Rehnquist, they cannot “escape being influenced by public opinion.”25 Consequently, a judge who decided “to seal himself off hermetically from all manifestations of [current] public opinion, … would [nevertheless] be influenced by the state of public opinion at the time he came to the bench.”26 Although Justices sometimes object that precedents are too easily abandoned and the principle of stare decisis ignored, new Justices bring fresh ideas and philosophies to the Court. In a dissent, Justice Black complained in 1971 that constitutional protections “should not be blown around by every passing political wind that changes the composition of this Court.”27 No doubt he was frustrated by policy shifts from the Warren Court to the Burger Court, yet Black himself had been one of the Roosevelt appointees in the late 1930s and early 1940s who helped chart a new course in constitutional interpretation and broke sharply with conservative doctrines.

Justice Robert Jackson, using characteristically blunt language, recognized that changes in the Court’s composition enable it to stay abreast of contemporary views. He denied that this capacity did violence to the notion of an independent, nonpolitical judiciary:

[L]‌et us not deceive ourselves; long-sustained public opinion does influence the process of constitutional interpretation. Each new member of the ever-changing personnel of our courts brings to his task the assumptions and accustomed thought of a later period. The practical play of the forces of politics is such that judicial power has often delayed but never permanently defeated the persistent will of a substantial majority.28

When public opinion is divided, judicial appointments may favor the views of one or the other political party. Beginning with the 1990 appointment of Republican Clarence Thomas, Democratic and Republican appointees have divided on the issues of abortion, campaign finance, and voting rights.29

Although proponents of judicial supremacy pay homage to the Court’s power to strike down elected government action, such as nullifying the acts of Congress, the President, and the states, it is a mistake to think of judicial review in a purely negative sense. This treatment overlooks the more important and frequent process where the Court affirms and legitimates the actions of the elected branches. Charles L. Black, Jr. has explained the way this works: “[T]‌he prime and most necessary function of the Court has been that of validation, not that of invalidation. What a government of limited powers needs, at the beginning and forever, is some means of satisfying the people that is has taken all steps humanly possible to stay within its powers. … the Court, through its history, has acted as the legitimator of the government.”30

Individual and Group Lobbying

Public attitudes and preferences are often funneled through individuals and groups that press their constitutional agendas on Congress, the executive branch, and the courts. In a speech in 1969, Justice Thurgood Marshall emphasized the importance of public participation: “No matter how solemn and profound the declarations of principle contained in our charter of government, no matter how dedicated and independent our judiciary, true justice can only be obtained through the actions of committed individuals, individuals acting both independently and through organized groups.”31

One of these “committed individuals,” Belva Lockwood, completed her legal studies and was admitted to the bar of the District of Columbia in 1873. However, she was denied the right to practice in the federal courts, solely because she was a woman. She “immediately laid siege” to Congress and by “energetic lobbying” was able to secure the passage of legislation in 1879 permitting women to practice in the federal courts.32 For her efforts, she became the first woman admitted to practice before the U.S. Supreme Court.

Lockwood’s experience shows that the courts are hardly the “last word” on constitutional law, nor are they reliable guardians of individual and minority rights. With no opportunity to gain satisfaction in the courts, which had regularly denied women the right to practice law, Lockwood was able to convince Congress—an all-male body—to give her the appropriate relief.33 Senator George Hoar strongly disagreed with those who believed that the issue of practicing law should be left to the courts: “[W]‌ith the greatest respect for that tribunal, I conceive that the law-making and not the law-expounding power in this Government ought to determine the question what class of citizens shall be clothed with the office of advocate.”34

At the turn of the twentieth century, the National Consumers’ League channeled its resources to win important protections for factory workers, both legislatively and through the courts. After successfully lobbying the Oregon legislature to limit women’s workdays to 10 hours, the League’s general counsel (and later Supreme Court Justice) Louis Brandeis set about defending the law in court. By incorporating into his brief facts assembled by experts regarding women’s hours of labor, he convinced the Court that long work hours threatened the health and well-being of women workers.35 In response, conservative businessmen organized the American Liberty League to challenge new forms of government economic regulation.36

The National Association for the Advancement of Colored People (NAACP), created in 1909, set up the Legal Defense and Educational Fund in the 1930s to make litigation a more systematic tool for gaining important new rights for the black community. Starting in 1935, the Legal Defense Fund launched a calculated assault against segregation. A generation later, with its victory in Brown v. Board of Education (1954), the Fund found itself at “the ‘cutting edge’ of all the complex social and political forces that were at work to produce desegregated America.”37 Beyond race relations, the Fund’s practice of calculating what battles could be won and what battles ought to be deferred became a model for other interest groups, including environmental and women’s interests, in their campaigns to use courts to advance social policy objectives.

Consider the efforts of the American Civil Liberties Union (ACLU) to expand constitutional guarantees for gays and lesbians. In launching a “test case” challenge to Georgia’s anti-sodomy statute, the ACLU waited five years for a case in which an individual was arrested in his home.38 In challenging the military’s “don’t ask, don’t tell” policy, the ACLU sought to frame the issue before the courts in the most effective way, arguing that the policy was about status (equality), not conduct (rights).39

Through the publication of articles, books, and commission reports, interest groups publicize their findings and conclusions about important public matters. Reliance on this body of literature concerned many legislators who feared that the courts might be giving indiscriminate credence to “unknown, unrecognized and nonauthoritative text books, law review articles, and other writings of propaganda artists and lobbyists.”40 The author of this statement, Congressman Wright Patman, complained in 1957 that the Supreme Court had turned increasingly for guidance to private publications and studies promoted by the administration. The research was designed, he said, not to study an issue objectively but to advance the particular views of private groups trying, through the medium of publication, to influence the judiciary’s disposition of public policy questions. Experts have pointed out that the members of these study committees and commissions are aware that lawyers will cite the reports in their briefs “and that the real impact of this might very well be in the decisions made by courts and administrative agencies.”41

The practice of judges citing professional journals goes back at least to Justice Brandeis in the 1920s. Other Justices, including Cardozo and Stone, also adopted this technique as a way of keeping law current with changes in American society. The opinions by Brandeis gave new meaning to the word “authority.” He believed that a judicial opinion “derives its authority, just as law derives its existence, from all the facts of life. The judge is free to draw upon these facts wherever he can find them, if only they are helpful.”42

The use of litigation in the 1940s and 1950s to shape social policy led to broader public participation and produced fundamental changes in the amicus curiae (friend of the court) brief. Originally, such briefs permitted third parties with no direct interest in the case to bring certain facts to the attention of the court to avoid judicial error. The purpose was to help inform the judicial process. Courts welcomed this assistance because “it is the honor of a court of justice to avoid error.”43 Over the years, however, the amicus brief lost this innocent quality and became an instrument used by private groups to advance their causes. Amicus representations in court were similar to group representations before congressional committees: “Just as group participation injects a more popular and majoritarian characteristic into the legislative process, it does the same for the judicial process.”44 The amicus curiae brief moved “from neutrality to partisanship, from friendship to advocacy.”45

Today, amicus briefs are filed in more than 90 percent of all cases brought before the Supreme Court.46 Moreover, with 20 organized interests participating in the typical amicus case (a case where at least one amicus brief is filed), it is not unusual for several thousand organizations to sign on to at least one Supreme Court brief each term. With Justices frequently citing amicus briefs in their decisions, interest groups will continue to lobby the Court through amicus filings.47 In a 1989 abortion case, over 400 organizations and thousands of individuals signed on to one of 78 amicus briefs.48 In the 2011–2012 term, amicus briefs were filed in 70 of 73 cases (96 percent), and 6 of those had at least 49 amicus filings.49

Lobbying before the Supreme Court, of course, represents but a small part of interest group efforts to shape constitutional values. Interest groups, such as the Southern Christian Leadership Conference, the National Organization of Women, and the Christian Coalition, provide a powerful influence on social movements—movements that affect public discourse and shape constitutional norms. Organized interests also speak as experts and, in so doing, affect constitutional discourse. For example, by repudiating its earlier finding that homosexuality is a psychopathic condition, the American Psychiatric Association paved the way for increasing societal acceptance of gay rights.50

Congress, the White House, and state officials pay close attention to interest groups. Whether the issue is gun control, flag burning, physician-assisted suicide, or some other controversy, interest groups play a key role in affecting public policy.51 Interest group representatives regularly present constitutional arguments at legislative hearings and, more important, work closely with lawmakers in the crafting of legislation. Presidents too go to great lengths to win over interest groups. When Ronald Reagan announced his pro-life regulatory agenda, he did so before a group of right-to-life leaders. Beyond legislation and regulation, interest groups work closely with the President in the selection of both judicial and agency appointees and with Congress in assessing these appointments.

A particularly vivid example of the power of interest groups to shape constitutional decision-making are the efforts of state and local officials to push their views before Congress and the White House. Whether the issue is unfunded mandates, welfare reform, or the applicability fair labor standards, state and local officials play a prominent role in affecting Washington’s willingness to embrace policy arguments grounded in the Tenth Amendment and other federalism protections.52

An incident in President Clinton’s second term underscores the capacity of state and local organizations to protect their interests. In 1998, Clinton issued an executive order on federalism, setting forth a number of principles to define the boundaries between the national government and the states. Unlike earlier executive orders (including one Clinton issued in 1993), the 1998 order specified instances in which federal preemption is warranted without any references to the traditional boundaries of state and local authority. The National Conference of State Legislatures, the National Governors Association, the U.S. Conference of Mayors, the National Association of Counties, the National League of Cities, and several other groups issued a sharp protest. Within two months, these organizations helped persuade the Senate to adopt language urging Clinton to repeal the executive order and reissue one issued by Reagan that was more favorable to the states.53 Initially, the Clinton White House promised to rewrite the executive order but later agreed to withdraw it and start over, this time working in concert with state and local organizations.54

Independent Jurors

Millions of citizens are called to sit on grand juries and regular juries. In deciding to indict or convict their fellow citizens, for the most part, they follow the law as explained by prosecutors and judges. On some occasions—and often highly important ones—jurors rely on their own conscience to decide what is constitutional and proper. In their own way, jurors sense and articulate the meaning of due process, equal protection, free speech, unreasonable search and seizure, and cruel and unusual punishment. In exercising independent judgment, jurors at various times have represented the best and the worst of democracy.55

The concept of an independent juror, free under some circumstances to reject a judge’s instruction of what the law is, has deep roots in America. In a diary entry in 1771, John Adams spoke about the difficulty that juries have in determining questions of law, which are frequently expressed in Latin and French. It was reasonable to expect the judge to instruct on the law and for juries to decide questions of fact. And yet Adams asked: “[I]‌s it not an absurdity to suppose that the law would oblige them to find a verdict according to the direction of the court, against their own opinion, judgment, and conscience?” It was not only a juror’s “right, but his duty” to find a verdict “according to his own best understanding, judgment, and conscience, though in direct opposition to the direction of the court.”56 Thomas Jefferson wrote in 1789:

It is left therefore to juries, if they think the permanent judges are under any biass [sic] whatever in any cause, to take upon themselves to judge the law as well as the fact. They never exercise this power but when they suspect partiality in the judges, and by the exercise of this power they have been the firmest bulwarks of English liberty. Were I called upon to decide whether the people had best be omitted in the Legislative or Judiciary department, I would say it is better to leave them out of the Legislative.57

In 1793, President George Washington issued his neutrality proclamation to prohibit Americans from taking sides in the war between France and England. When citizens were prosecuted for violating the proclamation, jurors would acquit because they refused to convict someone for a crime established only by a proclamation. With no statute to cite, the government dropped other prosecutions.58 Juries decided that criminal law should be left to Congress and the legislative process, rather than allowing the President to fix criminality by executive decree. President Washington appealed to Congress to consider legislation that would authorize effective prosecution. Congress passed the Neutrality Act the next year, giving the administration the firm legal footing it needed to prosecute violators.

In the early years of the American republic, judges found it difficult to dictate the law to skeptical frontier jurors. One foreman told a judge that “the jury want to know whether that ar what you told us, when we first went out, was raly the law, or whether it was only jist your notion.”59 During the nineteenth century, jurors objected to legislation that mandated the death penalty not only for murder but also for treason, piracy, arson, rape, robbery, burglary, and sodomy. Without the opportunity to vote for a lesser penalty, many jurors voted to acquit. Legislatures were then under pressure to add sentencing discretion to the process, such as allowing juries to decide between the death penalty and life imprisonment.60 Instead of jurors complying with the law, they exercised independent judgment to challenge the law and force greater flexibility.

For lesser crimes, jurors can be hostile to the underlying criminal law. In cases brought against individuals for violating laws regarding hunting, gambling, and liquor (during the Prohibition Era), jurors would often acquit because they regarded the laws as unreasonable or too severe. No matter what evidence prosecutors offered, jurors were likely to rebel.61 As a result, some prosecutors decided not to waste time with futile cases, and legislators were forced to rewrite or repeal the unpopular laws.

Juries may also acquit when they decide that law enforcement officers have abused their powers and offended basic liberties. In some early cases, where defendants were not represented by counsel, jurors would acquit to protest fundamental unfairness. One juror told a judge: “[U]‌ntil the state provided a public defender, he would let everyone go free.”62 Under these conditions, states and the federal government were compelled to provide assistance of counsel not only for capital crimes but for other offenses as well. If jurors decide that the government has used heavy-handed tactics to entrap an individual and helped manufacture a crime that would not have happened without the government’s manipulation, acquittal may be a signal to prosecutors that they have violated basic constitutional rights. Jurors help draw a line around permissible governmental behavior, no matter what legislators enact, prosecutors bring, or judges decide.

Juror involvement in basic questions of constitutional law is evident in cases involving pornography and obscenity. In these areas, the Supreme Court issues general, if not incomprehensible, guidelines. Jurors are supposed to decide (1) whether the average person, applying contemporary community standards, would find that the work, taken as a whole, appeals to the prurient interest; (2) whether the work depicts or describes, in a patently offensive way, sexual conduct specifically defined by the applicable state law; and (3) whether the work, taken as a whole, lacks “serious literary, artistic, political, or scientific value.”63 Prurient means inclined to lascivious thought. What is lascivious? It means inclined to lust; wanton or lewd. But what is lust, wantonness, and lewdness? These words run in a circle.

In the end, jurors will decide for themselves whether a book, movie, art exhibit, or music performance is harmful to their home community. In two highly controversial cases in 1990, juries in Cincinnati, Ohio, and Fort Lauderdale, Florida, decided that an art gallery and the rap group 2 Live Crew were not guilty of obscenity charges. The constitutionality of obscenity depends more on the conscience, intuition, taste, and judgment of individual jurors than Supreme Court doctrines.

“Jury nullification” remains a controversial issue. The term means that jurors may acquit even when they are convinced that the defendant is guilty as charged. Jurors refuse “to be bound by the facts of the case or the judge’s instruction regarding the law. Instead, the jury votes its conscience.”64 At times, this tactic is used by a minority to protest government policy: “Considering the costs of law enforcement to the black community and the failure of white lawmakers to devise significant nonincarcerative responses to black antisocial conduct, it is the moral responsibility of black jurors to emancipate some guilty black outlaws.”65 But the philosophy of jury nullification is broader than black protest. In the words of one study, juries “might be the last outpost of a skeptical citizenry that is wary of too much power in the hands of public officials, and nullification introduces a degree of unpredictability that requires prosecutors always to remember who has the last word about who is punished.”66


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