Approaching the U.S. Constitution by Hunter Kerry L.;

Author:Hunter, Kerry L.;
Language: eng
Format: epub
Tags: undefined
Publisher: Lexington Books
Published: 2012-08-15T00:00:00+00:00

Court as Conscience in Practice

Due to its lack of coercive capacity, the court’s political power has always been directly related to the degree in which the American public views the court as deserving their trust and respect. Up to a point, executive officials can rely on pure coercive power alone to accomplish their ends, but judges have no such ability. They are always dependent on others to carry out their will. Wise justices will therefore remain constantly cognizant of the need to nourish and preserve their moral capital by preserving the public’s trust. In fact, the degree to which the court enjoys such capital is a factor even when the court exercises its less controversial and traditionally legal authority over those charged with executing the law. Chief Justice John Marshall clearly understood this. He knew that a compelling legal argument could be made in support of Mr. Marbury’s claim in the Marbury v. Madison case. In fact, his opinion actually includes a legal argument for why Marbury deserves the position in question. But Marshall also understood the court to enjoy limited moral capital. He knew the court could not win a direct confrontation with President Jefferson and, more importantly, that the court’s reputation could not afford the blow it would sustain if Jefferson was granted an opportunity to disregard its ruling. Marshall further understood that moral capital could be gained through unanimous decisions. He understood that when the court speaks with one voice it speaks with more moral authority than it does with multiple voices. Consequently he regularly worked to announce unanimous opinions. Chief Justice Warren Burger understood this as well and in 1974 delivered a unanimous decision demanding that President Richard Nixon release the infamous Watergate tapes. Note that the court’s legal authority had not increased one iota in the intervening years between Marbury v. Madison and United States v. Nixon. Rather, Burger correctly understood that the court’s moral authority had exponentially grown. He recognized a unanimous Supreme Court did indeed have the moral authority needed to win a direct confrontation with the president of the United States, and he aggressively acted on that authority (see Woodward and Armstrong 1981).

Awareness of the Supreme Court’s extralegal moral authority is also of great significance in making sense of Brown v. Board of Education and the nation’s response to it. Brown could be considered a high point if not the high point in the court’s history. Yet Brown is short on legal logic and long on extralegal moral persuasion. Justices on the court understood that they had no ability to enforce their ruling; others (eventually including President Dwight D. Eisenhower with the help of the 101st Airborne Division) would have to do the coercing. The most the justices could do was make a powerful extralegal moral argument against racial segregation in public schools. Significantly, many state and local school district officials successfully delayed meaningful attempts to abide by Brown, and it was not until Congress passed the Civil Rights Act of 1964 that the universal implementation of public school racial desegregation began in earnest.

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