Book Review : And Justices for All--At Least Most of the Time

Storm Center: The Supreme Court in American Politics by David M. O’Brien (Norton: $18.95)

The United States Supreme Court is probably the least understood of the three branches of government. Part of the reason is the dignified secrecy the court maintains. While the President and Congress operate in a fishbowl of public attention, the court’s opinions speak for themselves.

The court’s decision-making process is almost never exposed, and the justices do not explain or comment on their decisions. Rarely do they get into a public squabble with each other or with other public officials, as Justices William Brennan and John Paul Stevens have done in recent years.

Philosopher Kings

But secrecy is only one of the reasons that the court is a puzzle. Another is its seemingly anti-democratic character. These nine people elected by nobody can overturn the will of Congress and tell the President what to do. Five votes out of 241 million people can decide some of the country’s most profound policy questions. What’s more, under usual circumstances, these decision makers may not be removed from office. They are independent of the majority’s will and are the closest things to philosopher kings--and queens--to be found on Earth.

In 1979, Bob Woodward and Scott Armstrong pulled back the curtain in “The Brethren” to reveal what goes on inside the Supreme Court, the clashes of personality and politics that are usually hidden from view. David M. O’Brien, a political scientist at the University of Virginia, follows in that tradition in “Storm Center: The Supreme Court in American Politics,” a fascinating, sometimes gossipy picture of how the justices actually do their work, how much they rely on law clerks, how they schedule their time, decide what cases to take, negotiate, politic, quarrel and, finally, reach their decisions.

O’Brien’s book is much more analytical than “The Brethren,” but it is hardly dry. O’Brien starts with a lucid explanation of the basic mechanics of the court, then carefully shows how it has changed in style and substance over 200 years.

The modern court took shape in this century, as Congress granted the justices increasing discretion to decide what cases to take. Unlike other courts, which must hear and rule on the cases that come before them, the Supreme Court sets its own agenda, allowing it to choose cases that present broad national issues.

Class Action Cases

The working theory is that in most cases, justice is done if the litigants get two bites at the apple: a trial court and an appellate review. When the Supreme Court takes a case, its outcome is usually of interest to the country, not just to the parties. In a sense, the cases the court hears become class actions, representing many similar cases that turn on the same question. A hundred years ago, O’Brien notes, only 4% of the Supreme Court’s cases decided by opinion raised issues of constitutional law. In 1980, 47% of them did.

On today’s Supreme Court the justices make policy choices no less than the elected members of Congress across the street. O’Brien is correct in concluding that the Supreme Court is best understood as a “superlegislature.” Precedent can be important, but both Justice (and soon to be Chief Justice) William H. Rehnquist on the right and Justice William J. Brennan Jr. on the left--just to name two--have been known to ignore precedent when it gets in the way of the outcome they want in a case.

If it were simply a matter of applying the law to the facts of a case and coming out with an answer, there would be no split decisions. As Ken Karst, a UCLA law professor, says, there are many 5-4 decisions on the Supreme Court because it’s a 5-4 world. Reasonable people can disagree.

The court is frequently called on to balance competing constitutional rights, typically the rights of an individual against the rights of society. How much weight to give to each side in the balance cannot be found in the law. Each justice balances in accordance with his own personal world view.

O’Brien’s approach is historical and draws on the papers of many of the 104 (soon to be 105) justices who have sat on the court since 1789. Because they foresee working with the same people for years to come, the justices try to disagree without being disagreeable, but they have not always succeeded.

O’Brien recounts the story told by Justices Tom Clark and William O. Douglas of the time that Chief Justice Fred Vinson became so angry with Justice Felix Frankfurter at a conference that he got up from the head of the table and headed toward Frankfurter shouting, “No son of a bitch can ever say that to Fred Vinson.” (Unfortunately, he doesn’t tell us what Frankfurter had said to provoke him.) O’Brien says that Justice James C. McReynolds was so anti-Semitic that whenever Justice Louis D. Brandeis spoke at conference, he would leave the room and not come back till Brandeis had finished.

Is Supreme Court Democratic?

All of this is very good, and there is much, much more of it. Anyone interested in the Supreme Court--from novice to member of the Supreme Court bar--will learn something from this book. O’Brien presents a candid, accurate and revealing account of how this co-equal branch of government really functions.

What he doesn’t adequately address, however, is the question of how democracy can accommodate such an institution. This question has been asked since 1803, when Chief Justice John Marshall enunciated the principle of judicial review in Marbury vs. Madison.

This is an especially crucial question given O’Brien’s conclusion that the justices make policy choices just as legislators do. Why, then, shouldn’t they be accountable to the voters through the ballot box?

In fact, the court represents the bedrock of democracy. Legislatures, whose members must periodically face the voters, are good at responding to the wishes of the majority. The Supreme Court, whose members serve for life, protects minorities against the tyranny of the majority. Moreover, while legislators must always look to the next election, the justices can take the long view and provide stability against changing fashions.

The current nine members of the court are the appointees of six different Presidents going back to Dwight Eisenhower, who appointed Brennan in 1956. They represent 30 years of political change. To be sure, the court is anti-majoritarian, but it is not anti-democratic.

The Supreme Court is a remarkable institution, and O’Brien’s book does it great justice. Never mind the questions it doesn’t tackle. Be pleased with those that it does.