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The Supreme Court’s Public and the Public’s Supreme Court

ISSUE:  Summer 1976

THIS essay has two related themes, which will be considered in inverse order from their appearance in its title. The first is the problem of making the Supreme Court of the United States and its justices accessible and understandable to the public at large. The second is the problem of ascertaining the proper audience to which Supreme Court decisions should be directed. Both themes are suggested by the recent publication of Richard Kluger’s important book, Simple Justice (Knopf, $15.95), a history of the Court’s decision in Brown v. Board of Education, outlawing racial segregation in the public schools.

Brown’s impact, Kluger rightly senses, was not confined to schools, nor even to race; it reaffirmed and gave concrete meaning to “the inherent equality of mankind.” After the unanimous dictates of the Court in Brown were pronounced, one could argue, it did not matter what Americans thought about race relations and racial superiority and inferiority; they had, in their public lives at any rate, to act as if human beings really were created equal. Over time, so runs the argument, thinking one way and acting another becomes a strain, and finally one shapes thoughts to actions. All people become equal because the law, personified by the Supreme Court, says they must be so regarded. Conformity to law finally becomes conformity to a different way of thinking,

But the Supreme Court, Kluger shows, was acutely aware of the controversial nature of racial segregation, anxious to avoid offending large segments of the public with its decision, and as concerned with the immediate practical consequences of a holding invalidating segregated public schools as it was with the juristic rationale for the holding itself. The external politics of the Brown decision illustrate that judge-made law in America commands respect but does not necessarily compel obedience. If sufficient numbers of the public profoundly disagree with a judgment of the Court—the Dred Scott case, for example—the judgment will not stand, Brown changed the character of American public education not simply because the Supreme Court said that racial segregation in the public schools was “against the law” but because the Court correctly understood that most Americans, on reflection, would find the public practice of racial segregation antithetical to fundamental ideals of the nation.

If the Supreme Court’s relation to the American populace, then, is more reciprocal than might sometimes be thought—if the Supreme Court needs the public as much as the public needs the Supreme Court—how can the two entities better understand one another? Surveys and polls continually reveal that although the office of Justice of the Supreme Court perhaps commands more public respect than any other, very few Americans know who sits on the Court at any given time, what functions the justices perform, or what the Court’s decisions mean. Conversely, service on the Court tends to protect the confidentiality of a justice, sharply limit public access to him, and discourage him from seeking public contacts. Roughly speaking, it seems as if the public at large cannot fully understand the Court, nor can the Court fully understand the thoughts and feelings of the public. How, then, can the two entities effectively interact?


Simple Justice dramatizes the interaction of law with the movement for black equality in modern America. Three literary analogies to Simple Justice come to mind, Simple Justice is like a Homeric epic in its slow progression of stories within stories, intermingling finally with one another in a grand and heroic climax. It is like a 17th-century morality play in its recurrent insistence that the values of decency and humaneness can and should triumph. And it is like a Victorian novel in its skillful interplay of personal and social themes, its threads of plot and subplot that are finally bound together.

Seldom, in my view, is so value-oriented a piece of scholarship so successful as an historical contribution. There are quarrels lawyers or historians could pick with Kluger’s perspective: he characterizes 19th-century judges as “liberals” or “conservatives,” using these terms in their 20th-century sense; he occasionally reads cases loosely and thereby evaluates decisions as speaking more broadly and decisively than they were likely intended. One senses Kluger is not really too concerned with the technicalities and qualifications of legal and historical scholarship: his purpose is to dramatize, and he is willing to oversimplify a little to maintain the emotional intensity of his narrative.

Brown was an unusual case in that it affected many more persons than an ordinary Court decision, was written—deliberately, as Kluger points out—in a much less “legalistic” tone, and received widespread publication outside the normal channels through which judgments of the Court are communicated. It was also, unlike many other controversial Warren Court cases, a decision touching the nerve fibers of American society and exposing that society’s basic contradictions. The juxtaposition of race and equality has been a central issue of American civilization since its origins; it remains such; Brown purported, at one level (“law”) and in one context (public elementary schools), to assert that equality transcended race consciousness. Consequently the public had a strong need to understand Brown and to relate to it. One could argue, in fact, that the primary roadblock to the Brown decision was a sense on the part of several justices that the public would not comprehend a decision that racial segregation in public schools was impermissible and would therefore not accept it.

Brown, then, because it was a case to which so many Americans needed to relate, is an especially good subject for a narrative that seeks a wider audience than the usual Court-watchers and commentators. But the question goes beyond Brown: in seeking to relate to a particular Supreme Court decision can the public relate to the Court at large?

Three public impressions of the Court suggest themselves, each with its own germ of an insight. One is that the Supreme Court is “nine people”; a second that the Court is “a branch of government”; a third that the Court is “the supreme law of the land.” Simple Justice deals most fully with the first and the third, only sparingly and not altogether successfully with the second. Each impression, taken alone, is an inadequate description of the Court. In combination, and with some added reflection, the three may capture its essence.

Much of Kluger’s narrative could be said to stand for the proposition that although the Supreme Court is composed of nine people, it is “really” made up of far more. The scenario of Simple Justice contains the activities of hundreds of persons over vast amounts of time. It includes not only blacks, such as Reverend Joseph A. Delaine, who turned to the courts to challenge segregated practices, but lawyers for their cause, such as Spottswood Robinson and Thurgood Marshall; social scientists, such as Kenneth Clark, who helped in the litigation; lower court judges, such as John Parker, Waties Waring, and Collins Seitz, who passed on the constitutional validity of segregated public schools; and advocates on the other side, such as Lindsay Almond and John W. Davis. It takes in judges—Lemuel Shaw, Samuel Miller, Henry Billings Brown, John Harlan the Elder—who considered questions of racial segregation throughout American history. It includes law clerks to the justices who sat for the three years of arguments surrounding Broion and its companion cases.

The sweep of Kluger’s narrative seems designed not merely to set standards for exhaustive research, but to make a broader point: the process of a Supreme Court decision involves many more individuals than those who are publicly identified with the result. The additional individuals not only take part in the decision-making process; they help shape the outcome. Aggrieved blacks in the 1940’s had the fortitude to seek remedies in the courts. Lawyers agreed to represent them and shaped arguments that they intended to persuade judges. Judges searched for pronouncements of other judges on similar matters as authorities to follow, disagree with, or disregard. Judges talked to their law clerks and digested the latter’s research. Judges read the newspapers and tried to ascertain the tolerance of public opinion for change in the area of race relations. The nine Justices who finally decided Brown were not deciding alone. The Supreme Court may be isolated from partisan politics, and its members may even on occasion be out of touch with contemporary attitudes, but its decisions cannot fairly be reduced to the idiosyncratic judgments of nine men.

Yet the personnel of the Court at a given time surely makes a difference in the outcome of decisions. Regardless of the swirl of outside pressures surrounding a justice as he enters the conference room to discuss and vote on a case, his presence there, as opposed to the presence of some other individual, is important. Therein lies the germ of truth in the public impression that the Court is “nine people.” Kluger argues in Simple Justice that the death of Chief Justice Vinson in the summer of 1953, and the subsequent appointment of Earl Warren to succeed to the Chief Justiceship, was decisive in the outcome of Brown. Vinson had been wedded, though not exclusively, to the principle of segregation; he had influenced the views of others, such as Justice Clark. Warren was not similarly wedded and had the advantage of being regarded as a former public official and politician with his “finger on the nation’s pulse.” Warren’s presence, for Kluger, not only tipped the scales in favor of the eventual result in Brown but ultimately secured unanimity for the decision.

I shall have more to say in the latter portion of this essay about the difficulties of determining the precise interplay of personalities in the Supreme Court’s decisions. At this point it suffices to note that while the Court cannot fairly be equated solely with “nine people,” the interaction of its nine members strongly affects its decisions.

“Interaction” on the Court is nonetheless not simply the agreements and disagreements of individuals. It is also discussions between persons who hold the highest office of one of the principal branches of American government. Here one confronts the “branch of government” perception of the Court, which suggests that the Court’s decisions are not so much the judgments of persons as they are the pronouncements of a permanent and continuous American governmental institution. There is something to be said for this perception, to which Kluger gives only slight attention. Justices on the Court are continually seeking to square their decisions with the extant judgments of their predecessor Courts. In the discussions of Brown, for example, a most serious argument for maintaining the existence of racially segregated facilities was that a prior Court had sustained their constitutionality and nearly 60 years had passed without that Court’s judgment being invalidated,

On the surface, institutional continuity may look simply like blind adherence to the past. A Court that slavishly follows precedent, one might assume, imprisons the law in time. But institutional continuity is not so much an appeal to history as it is an appeal to the mystique of American governmental bodies, who are designed, in theory, to serve the public rather than to promote the interests and values of those who are associated with them. The Supreme Court is peculiarly vulnerable to the charge that it does not serve the public because of the undemocratic character of its appointments process and the life tenure of its members. If the Court is not somehow distinguishable from its current occupants—if the institution itself has no identity over time—then law becomes equated with idiosyncratic judgments by people on whose actions there is no effective political check.

Thus Justices take seriously matters of institutional continuity and feel strongly the constraints on their actions that come from a sense of association with the Supreme Court of the United States. Some Justices, such as Felix Frankfurter, try to make a sharp distinction between their personal sympathies or antipathies and their judicial obligations; others, such as Earl Warren, find such a distinction artificial. No Justice functions, however, without a sense of holding an office in the American system of government and being bound, to some extent, by the traditions of that office and by public expectations about its performance. Brown was a difficult case not because arguments for maintaining segregation were humane or fair or just, but because they represented the majoritarian legal and social thinking of six decades, and they had been regularly, albeit sometimes grudgingly, accepted by the United States Supreme Court. A rationale for overruling the legal and social principle of Plessy v. Ferguson, an 1896 decision sustaining the constitutionality of “separate but equal” racially segregated public facilities, was hard to find, not simply because of indecisiveness among some of the Warren Court’s members about the value of integrated public schools, but because of the strong weight afforded institutional continuity in Supreme Court decisions.

Among those justices who had difficulty finding a rationale to overrule Plessy was Robert Jackson, who worried, Kluger maintains, that an overruling would undermine respect for “a supposedly stable organic law.” Jackson’s fear, while partially directed at the theme of institutional continuity, was also directed at a third public image of the Court, that it is “the supreme law of the land.” Earl Warren was also cognizant of this perception, Kluger believes, and may have shared it. “You did not “work out something” with the decrees of the Supreme Court,” Kluger characterizes Warren as thinking, “you obeyed them. That is what a government of laws meant.”

On reflection, this public perception of the Court, like the prior two discussed, needs refinement. “Law” in America is, of course, much more than the pronouncements of nine justices or one institution. Other institutions make law, and some—Congress most notably—can legislate Supreme Court decisions out of existence. The Supreme Court may be, since Marbury v. Madison, the ultimate interpreter of the Constitution, but state legislatures, through the amendment process, can change the Constitution’s text. A corpus of officials is charged with enforcing the Court’s decisions and may, according to some evidence, retain an unchecked discretion to deviate from them if they choose. A Court decision outlawing prayers in public schools has not fully had that effect; another insisting that criminal suspects be fully apprised of their rights while under police custody has apparently been only indifferently implemented. Irate Presidents, from Jefferson through Nixon, have considered refusing to comply with Court decrees or have allegedly refused outright. Andrew Jackson has for years been associated with the ultimatum, “John Marshall has made his decision (one favorable to the interests of the Cherokee Indians and hostile to those of Jackson), now let him enforce it.” Jackson apparently never made such a categorical statement, but the possibility of noncompliance with a Court decision always exists.

The Court is an institution charged with a responsibility to make authoritative pronouncements about what the state of a current branch of the law is. Its pronouncements carry great weight, and, as indicated, speak well beyond the time in which they are made, but they are not “the law” unless the American public, in the main, accepts them as such. Overwhelmingly insensitive or unpopular Court decisions never achieve the legitimacy necessary for public acquiescence. Plessy v. Ferguson did, for a time, but less than 40 years after its enactment its fullest meaning—a racially segregated society at all levels—began to be undermined.

Thus the Court is the “supreme law of the land” only in a limited sense. Yet the authority of the Court in matters of social controversy remains immense. Habitually Americans have tried to resolve divisive social issues by appeal to legal institutions; historically the judiciary, personified by the Court, has been perceived as the ultimate arbiter of “legal” questions. When competing social attitudes, such as equality and racial prejudice, become issues of constitutional law, as in Plessy and Brown, and when the Supreme Court purports to resolve those issues, its participation has immense social significance. The Court lends all its majesty and dignity to one outcome or another. It says either “segregate with our blessings” or “integrate whether you like it or not.” One may not like what the Court says or even vow to disobey its edicts. But in so doing one opposes a force of great power and stature in American life. Kluger shows in Simple Justice the great importance of the participation of the Court in the civil rights movement, The Court did not initiate the movement, nor was it primarily responsible for the transformation in racial attitudes that has taken place in America between World War II and the present. But the momentum that civil rights received from Brown v. Board of Education was incalculable.

The impact of Brown swept away one vestige of racial segregation after another, but recently countervailing forces have collided with the integrationist impulse, producing serious dilemmas that the current Court can no more “solve” than the nation can apparently reach agreement upon. Benign racial quotas in education and forced busing to achieve racial balance are issues on which Americans seem deeply divided at present. In none of these areas has the Court taken a ringing, unanimous stand comparable to its posture in Brown. Perhaps this is because the nine people currently on the Court cannot agree on a stand, perhaps because the judicial branch of government is limited in its ability to make decisions in certain contexts, perhaps because “the law of the land” is not perceived as clear on such issues. What needs to happen for these issues to be satisfactorily resolved is a continuing dialogue between the Court and the nation, so that individual Justices can be exposed to the same swirl of attitudes and arguments that they encountered in considering Brown.


To be thus exposed, one might assume, the Supreme Court needs an understanding of the public, just as the public needs one of the Supreme Court. But what is the Supreme Court’s “public”? To whom should Supreme Court decisions be directed? Here the issues seem not so much in need of refinement as in need of initial examination. Who are the classes of persons to which Supreme Court decisions are addressed? Although we may surmise that some decisions, like Brown, affect countless numbers of people, being affected by a decision and understanding it may be two different things.

Simple Justice raises the question of the impact of various kinds of publicists in communicating the decisions of the Court beyond their usual circles. In addressing that question I will be distinguishing between three segments of the public, “professional,” “informed,” and “lay,” and between two kinds of publicists, “insider” and “outsider.”

The average Supreme Court decision is written for and communicated to a “professional” audience. This audience is primarily made up of persons with legal training and a specialized interest in the Court’s proceedings. The Court speaks to some members of this audience in a precise fashion by resolving a particular controversy in which they were involved. Such persons include the litigants before the court, their counsel, and lower court judges that have passed on the specific legal questions decided. Beyond this group are additional “professionals”: similarly situated litigants or potential litigants for whom the decision gives guidance; practitioners whose future advice to clients is affected by the decision; law professors who address the decision in the course of their scholarship or teaching. Most cases decided by the Supreme Court communicate almost exclusively to this group.

Other decisions of the Court, especially those in the area of constitutional law, may be perceived as having wider applicability. The Court’s decision finding the practice of compulsory prayers in public schools unconstitutional, for example, affected not only the individual litigant in the case, his counsel, lower courts, and the specialized bar, but also numerous school children, their parents, and educators. But did those classes of persons understand the decision? In such cases the question of multi-leveled communication is squarely raised: can the Court write for more than one audience?

In one sense the answer to that question is no. The reasoning of a Supreme Court decision is necessarily technical, involving an analysis of legal source materials communicated in legal language, Persons not trained in the law can not easily fathom intricacies in legal reasoning. Indeed, a widely shared perception of legal reasoning is that it is “lawyer’s gobbledegook,” and there is some truth in the perception. Like other professions and guilds in American society, lawyers and judges have a distinctive vocabulary and a distinctive mode of reasoning. The patterns of that reasoning are not always intelligible to laymen.

Yet surely another audience exists for Supreme Court decisions: those persons without legal training who attempt to keep informed on contemporary issues and who take an interest in the social or political implications of Supreme Court decisions. Being “a branch of government” and “the supreme law of the land,” the Supreme Court is associated with politics and social life in a broad sense. Its decisions are widely characterized as “liberal” or “conservative,” as “progressive” or “reactionary,” and even as “right” or “wrong.” These characterizations are frequently made by “informed” non-lawyers: representatives of the media, writers, politicians, government officials, academicians. Such characterizations may be noted and appraised by the constituents of these various groups—the archetypal “laymen” who buy books, read newspapers, listen to influential people, and help create “public opinion.”

Brown v. Board was a decision deliberately intended to reach beyond the professional audience of the Court. Chief Justice Warren’s opinion in Brown was written in simple, almost colloquial language. It was short enough to have its complete text published in newspapers. Kluger maintains that Warren intended the opinion to be “readable by the lay public, non-rhetorical, unemotional, and above all, non-accusatory.” The opinion had, Kluger feels, a “bleached-out quality” to its language, and a “thinness of legal materials.” James Reston said the opinion read “more like an expert paper on sociology than a Supreme Court opinion.”

Although Brown represents the exceptional Supreme Court decision rather than the ordinary one, it starkly presents communciation dilemmas faced by the Court. How does the Court reach beyond a professional audience and yet retain its stature as a learned professional institution? How does it speak to the public in a comprehensive way without appearing to give over-simplified solutions to complex issues? How can its reasoning be both emotionally directed—through appeal to unifying values like “good citizenship” or universal bogeys like “inferiority”—and intellectually rigorous?

The short answer to these questions is that the Court cannot simultaneously communicate to the “professional,” “informed,” and “lay” segments of the public with perfect success. Its pithy aphorisms and catch-phrases (“three generations of imbeciles is enough”), (“one-man, one-vote”) conceal complexities and suffer under intense academic analysis. Its technical masterpieces—some of the opinions of Justice John Harlan II come to mind—are sometimes incomprehensible even to “informed” nonlawyers. But the appropriate communication standard, it seems, can be something short of perfection. Indeed, it may be more important for the Court to take cognizance of its “informed” and “lay” audiences than for it to actually reach them. For the principle behind communication efforts is not to make everyone a lawyer (surely ample numbers exist) but to justify the Court’s power. The Court seeks public understanding because it seeks public legitimation of its decisions; otherwise its authority is eroded. Having limited enforcement powers, no political base, and few purse strings—little save its authority—the Court must justify its stature through its reasoning. If its communication is unpersuasive or unintelligible, its stature may be threatened.

Given the technical nature of Court decisions and the imperatives of communication, the Court is forced to rely in part on publicists. Some of these publicists are hired by the Court: its press staff, its Clerk’s and Marshal’s offices. The latter two offices “publicize” by serving as liaisons, respectively, between the bar and the tourist public. Among the functions of the Clerk’s office is to apprise counsel and other interested parties of the state of the Court’s docket; among the duties of the Marshal’s office is to provide public tours of the Supreme Court building and to allow the public limited access to oral arguments while the Court is in session.

The above “insider” publicists are privy, in varying degrees, to confidential information about Court personnel and procedures. They are not expected, by and large, to communicate this information to the public; they are expected, rather, to communicate only that information which is deemed appropriate for public consumption. Like other high-level governmental officials, the Justices of the Supreme Court are screened from the public by their staffs, and information released about their activities by “insider” publicists is selected information. Here one notices a trade-off common to public life in high circles: a public “right to know” about the activities of notable figures is recognized and catered to, but balanced off against the needs of such persons for privacy in their working and private lives. In the case of Supreme Court Justices a need for privacy is thought to be particularly acute since the Court is expected to be aloof from partisan strife and justices are expected to make “independent” decisions.

Another set of “insider” publicists is the law clerks who serve as research aides to individual Justices. Calling such persons “publicists” may seem anomalous, since the task of a law clerk, ostensibly, is to aid a Justice in the preparation, not the dissemination, of an opinion. But the law clerks have traditionally been regarded as serving a broader function. They not only give a Justice access to the services of a person with supposed intellectual ability; they allegedly give the Justice access to contemporary ideas. Law clerks normally serve for only a year and are comparatively recent law school graduates: they arguably reflect contemporary waves of educated legal thought. According to this hypothesis, clerks may have a fuller sense than a Justice for the contemporary impact of a decision, or they may be, by virtue of their age, able to view delicate political judgments from a different perspective, Kluger surmises that Barrett Prettyman, Justice Robert Jackson’s clerk for the 1953 Term, was highly influential in persuading Jackson to suppress a concurring opinion in Brown.

Whether law clerks actually help the Court expand the range and impact of its opinions or merely reinforce the views of the Justices they serve is a question whose answer undoubtedly varies from case to case and which is not, on balance, very significant. Of greater interest, for present purposes, is the fact that law clerks have the same limitations of confidentiality placed upon them as do other “insiders.” These limitations are made quite explicit: a clerk is not to reveal privileged information to which he has access during his tenure. The confidentiality limitation informally extends beyond the duration of a clerkship; former clerks are normally cautious about discussing the details of their past service with a Justice. The tradition of confidentiality sometimes puts former clerks and other “insiders” in the awkward position of believing they may know “the truth” about a particular episode in the Court’s history but being enjoined from contradicting erroneous accounts of that episode.

Beyond the “insider” publicists previously described are “selected” insiders: journalists or academicians granted access to otherwise privileged information for the express purpose of revealing that information to the public. Sometimes the information is in the form of a “leak,” designed to have contemporary impact; sometimes it serves to provide a biographer or historian fuller background to the career of a Justice or to the work of a particular Court. Justices have taken radically different views on the use of selected insiders. Chief Justice Marshall himself wrote a defense of McCulloch v. Maryland under a pseudonym; Justice Story used the Court’s Reporter, Henry Wheaton, to disseminate copies of Story’s opinions to private persons; Chief Justice Stone granted Alpheus Mason access to intraCourt memoranda to aid in the preparation of a biography. Chief Justices Hughes and Warren, on the other hand, attempted to maintain confidentiality about the Court’s internal business and refrained, in autobiographies, from giving particularized accounts of their tenures.

Countless “outsider” publicists of the Court exist: commentators in the popular press; academicians writing on a selected aspect of the Court’s performance or on the contributions of individual justices; educators seeking to describe the Court in any of its perceived roles. A distinction between “insider” and “outsider” publicists may be thought of, at first blush, as serving no purpose. If the Court needs to communicate its work to the public, and yet is limited, by the nature of its work, to communication to a very narrow audience, should it not welcome other publicists who can expand that audience? Should the precise access of the publicist to information emanating from the Court matter? After all, the purpose of a Court decision is to resolve a point of law and to advance reasons why the resolution has taken a particular form. If the reasons are circulated for public appraisal, why does it matter who circulates them?

The difficulty, of course, is that American society has fos’tered the development of hierarchies of persons with “expertise” or lack thereof on contemporary issues, and has regularly attributed expertise to those with “inside” information. Thus in writing Simple Justice Kluger has not only set out to humanize the Brown decision but also to establish his credentials as an “insider” publicist. He has sought to do this by not only reading a great deal of the available popular and contemporary literature on Brown and the issues it raised but also by interviewing as many participants in the Brown decision as he could. Kluger attempts to create, along with a strong impression of what the Brown decision means to contemporary American life, an equally strong impression of the way Brown was: the “inside” story of the decision.

This writer, while applauding Kluger’s high professional standards as a historian and a journalist, and while admiring his zeal and persistence, finds the “insider” stance of Simple Justice troublesome in places. Its difficulty stems from the apparently skewed focus it sometimes creates for readers. Instead of savoring the symbolic meaning of Brown—something no legalistic commentary on the decision can adequately capture—a reader is invited to ask what “really” happened “inside the Court” in the Brown case. And that inquiry, in this writer’s view, is nearly irrelevant. Can one ever “know” the connection of circumstances that produces a unanimous Court decision? Can one ever be sure which Justices took what positions in conference, or changed their votes, or suppressed dissents or concurrences, or made private deals? And does it matter?

Kluger gives an account of the internal deliberations of Brown which is well reasoned and documented. He identifies some Justices as supporting and others as originally opposing the eventual outcome of Brown. He characterizes the various positions of the opponents and sketches a narrative of their eventual capitulation to the majority view, as expressed in Warren’s opinion. On two separate occasions this writer, while a law clerk at the Court many years after Brown, heard accounts of the deliberations that differed from Kluger’s. Other scholars have advanced hypotheses about the deliberations that are different still.

But whether one chooses to accept Kluger’s account or those of others seems beside the point. Brown was a decision that confronted the Court with the possibility of profound change; it was a case laden with moral overtones; it was not easily “settled” one way or another by constitutional language. Such decisions inevitably produce uncertainties among some Justices and strong feelings among others. In the expression of these uncertainties and feelings complexities of personal relations come into play, Many years later “what happened” becomes elusive; it was never clear to start with. Each Justice brought his individual perspective to Brown; for each the meaning of the decision was not quite what it was for the others. The “way it was” inside the Court’s conference room in the Brown discussions consisted of a composite of thoughts and feelings that can never completely be recaptured, nor can the subsequent actions and thoughts of the participating Justices. Major historical events all have this quality; their “reality” is not completely reproducible.

In suggesting that Kluger’s effort to describe “what happened” in Brown is not, and cannot be, completely authoritative, I do not mean to indict Kluger. He has succeeded, within his own limitations of access, in producing a plausible “inside” history of the case; contemporary Americans are fascinated with “inside” accounts of famous events; Kluger’s focus thus gives his book a wider appeal and thereby supports what I take to be his major task, that of universalizing the process of a Supreme Court decision by stressing its human elements.

In this capacity Kluger is a superb “publicist” for the Court, for he shows that Supreme Court Justices, like the rest of us, make decisions as human beings, regardless of the constraining factors of their office and the technical requirements of their profession. The civil rights movement affected the nine Justices in Brown, at one level, in the same manner that it affected most other Americans: that is, it forced people to ask themselves why the accident of race should be a criterion for keeping some human beings forcibly separated from others. The answer the Brown justices gave to this question made more impact than the answers of numerous other people because of the multiple roles of the Supreme Court in American life. But the fundamental importance of Brown is that the question was asked. The symbolic meaning of Brown is thus primarily its human dimension, what it says about living in America. In stressing this dimension Kluger has done justice to the decision and to the Court,


The Court’s “public” is therefore ultimately Americans as humans; the public’s “Court” is ultimately an institution composed of nine people who claim the power to affect our current definitions of humanity. Communication between the Court and the public, although fraught with complexities and difficulties, is essential because human beings are united in their humanity yet differentiated by their social and institutional roles. If the humans composing the Court are to wield greater power than most others in America, and are nonetheless incapable of surrendering their humanity, it would seem that they ought to advance some reasons why this power rests in them and not in others. Every time the Court makes a decision, then, it implicitly justifies its power. Thinking of the Court as “the law of the land” or “a branch of government” may help some Americans tolerate that power, but the Court is “nine people,” too, and nine singularly powerful people.

Legitimacy is thus the recurrent quest of the Court. Legitimacy follows from the involvement of the public in Court decisions so that the decisions are largely accepted and followed, not so much because of the authority of the Court, but because of a general belief in the principles for which the decisions stand. The Court therefore needs to tell the public, as fully and carefully and clearly as it can, what its decisions stand for. Many times, because of its professional status, the Court cannot easily make such communications. But if no one does, the public is forced to rely on the Court simply because of its authority. In a period in which the accountability of authoritative institutions seems necessary for their successful functioning, blind public faith in the Court seems highly unlikely.

If legitimacy is tied to communication, and if the technicalities of Court communications narrow their impact, it seems that the Court must communicate in other respects. The humanness of the Court, in particular, ought to be communicated. Yet there are difficulties, as noted: the need in the justices for some measure of privacy and confidentiality; the importance of the Court as an institution transcending personalities; the majesty of the judicial branch of government, which stems in large part from its identification with the values of impersonality and detachment. The triumph of Simple Justice is that it humanizes the Court without entirely losing sight of its transcendent institutional qualities. We see the nine Justices struggling with the personal difficulties Brown raises for each of them, and coping with the presence of each other; but we see also, if we look hard enough, their sense of being judges and being members of the Supreme Court of the United States, and, finally, their sense of the symbolic meaning of Brown. Brown, it seems, is a legitimated decision: its general principle of racial equality before the law seems largely accepted in America. A striking indication of Brown’s legitimacy is that the Court’s basic message was communicated to Richard Kluger, who has done his best to justify it in further communication. That seems to be what the process of legitimating Court decisions is all about: unraveling the complexities of Court-public communication to reveal the basic principles of concordance. Legitimacy comes when enough of the public understands, and believes, what the Court has said; it cannot come, in cases of massive potential impact like Brown, until the Court has truly spoken to the public. The “public” and the “Court” may not be entirely comprehensible to one another, but they are nonetheless mutually interdependent.


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