How Independent is the Court?

The Hollow Hope: Can Courts Bring About Social Change?

by Gerald N. Rosenberg
University of Chicago Press, 425 pp., $29.95


In 1922, Charles Garland, a twenty-one-year-old undergraduate at Harvard, received $800,000 from his father’s estate. Believing that he was not entitled to money he had not earned, Garland made a grant to the American Fund for Public Service, which was dedicated to the support of movements for social reform. The committee administering the fund urged that a donation be made to the National Association for the Advancement of Colored People (NAACP), in order to help bring legal actions in the courts to desegregate education.

Roger Baldwin of the American Civil Liberties Union argued vigorously against the legal approach. In Baldwin’s view, an emphasis on law and the courts was inadequate to the task at hand. But the grant was nonetheless made. It helped finance an extraordinary campaign to persuade the federal courts to abolish apartheid in America. In 1954, a unanimous Supreme Court outlawed school segregation in the most famous case of this century, Brown v. Board of Education, which had been brought by the NAACP, Garland’s original beneficiary.

Americans have taken pride in the independence of their judges, and the Brown case may well be the leading symbol of judicial independence. During the last forty years, the Supreme Court has been widely thought to be the source of extraordinary victories for human liberty, of which the Brown case was the greatest. The Court has also struck down many forms of sex discrimination; imposed on state governments the principle of “one person-one vote”; recognized extremely broad rights of freedom of speech; created and protected a right of privacy; removed prayer from the public schools; and renovated the criminal justice system. To be sure, many people object to one or more of these developments. But what is especially striking is that most Americans—of otherwise widely diverse views—regard much of the resulting system of constitutional liberty as a fundamental part of our legal heritage. And this system is a product, not merely of the Constitution’s framers, but more fundamentally of the interpretive practices of the modern Supreme Court, apparently doing its work above the battles of ordinary politics.

If our judges are indeed independent, what makes them so? If we read the Constitution, we will find two important guarantees. First, judges have life tenure; “during good behavior,” they cannot be removed from office. Second, Congress may not diminish judges’ salaries. These guarantees, it is often thought, immunize the courts from the prevailing political winds. Above all, they permit the Supreme Court to deliberate about the meaning of the Constitution in a way that is free from partisan pressures.

So much for the Constitution. A look at recent history tells us something quite different about judicial independence. Republican presidents (Nixon, Ford, Reagan, and Bush) have made eleven consecutive appointments to the nine-member Supreme Court. (President Carter, unlucky in this as in other matters, was the only president in American history to serve a full term without making a Supreme Court appointment.) Reagan and Bush have appointed about 70 percent of current…

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