The Supreme Court Should Weather This Storm

In resolving the presidential election, the U.S. Supreme Court drew on a deep well of public respect that underlies its central role in the American system of government.

Often in American history the court has had to dive into controversial topics. Often those decisions have turned out to help the nation through difficult periods, building up public good will on which the justices can rely.

“We accept the cases we don’t like because we believe the process overall is a desirable one,” said Erwin Chemerinksy, a professor of law and political science at USC.

The presidential election decision marks the first time the high court has been so directly involved in selecting a president, and it has been immediately controversial. Legal experts and court historians say it is clearly too early to know if the case will end up being seen as a benefit to the country or an historic mistake. But they predict that in the long run, the case will be easier for the public to accept than some historic decisions that alienated so many people that the court’s very legitimacy was threatened.

During the past 50 years, “on the whole, the court’s reputation in relation to other institutions has been enhanced,” said Jack Rakove, a history professor at Stanford and author of a book on the court that won the Pulitzer Prize.

The Supreme Court, he said, continues to enjoy “the moral and political capital the court earned in the ‘50s and ‘60s” with its decisions upholding the civil rights of black Americans.

Vice President Al Gore alluded to that respect in his concession speech, saying that while he disagreed with the court’s ruling against him, he would accept it and urge his supporters to do likewise.

Noting the stability that respect for the courts has given to the American system, other nations have begun to copy it. So American judges are no longer alone in the delicate balancing act involved in handling sensitive political questions.

In eastern Europe, for example, American lawyers and judges are advising the courts -- and learning through the experience, which at times has been rocky.

Albania’s Constitutional Court, for example, declared a popular law unconstitutional in the late 1990s. The country’s leaders responded by passing a constitutional amendment -- a move that temporarily damaged the court’s legitimacy, said Scott Carlson, programs director for the American Bar Assn.’s Central and Eastern European Law Initiative.

“The court made precisely the wrong decision and did it in an aggressive way that emasulated its authority,” Carlson said. “It was a clear blow to the credibility of the court.”

Carlson advises judges and lawyers outside the United States that establishing a court’s legitimacy takes time and extra work.

That has been true with the U.S. Supreme Court as well.

During the New Deal era, for example, the justices struck down federal laws designed to protect workers and help end the Depression. Those decisions brought angry attacks from liberals.

In response, President Franklin D. Roosevelt proposed expanding the nine-member bench. Roosevelt said his idea was only to designed to give “the nine old men” on the court more help with their work. But opponents quickly labeled the scheme a “court packing” plan. Roosevelt’s effort failed in Congress, but only after the court had a last-minute change of heart that led to a decision upholding key New Deal legislation.

The court’s work was also controversial after the 1954 Brown v. Board of Education decision that ended legal segregation in the nation’s schools. That decision brought attacks by conservatives, including some federal lawmakers who considered changing the high court’s jurisdiction to limit the kinds of cases it could decide.

In the end, the court survived both attacks from the left and the right.

The justices did so “by being seen as being nonpartisan and objective, and performing well,” said John H. Killian, an specialist in American constitutional law at the Library of Congress.

“The court was very carefully husbanding the power,” he said. “They don’t go too far, they don’t strike out too stridently in too many ways.”

Professor Jesse H. Choper of Boalt Hall law school predicted the court will similarly survive the current controversy.

Many people, including some who might disagree with the high court’s ruling, wanted an end to the political indecision, he said. Moreover, the public has “a very short memory,” and attention already has been drawn away from the decision and onto the new president and his transition into office.