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Authors: Stephen Breyer
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SupremeCourt, should decide the questions at issue. They concluded that Florida should be allowed to continue to its statewide recount as it wished. I agreed with the dissent. Because I believed that Congress and other political institutions were fully capable of resolving this intensely political dispute, I thought the Court should not have decided to hear the case. I thought the Court, having decided to hear the case, should have decided it differently. I could find no good reason for ordering the Florida Supreme Court to stop its recount, and I would have allowed the recount to continue. Because I believed that the public would consider the Court’s decision to be based on political preferences rather than law, I wrote that the decision was a “self-inflicted wound.” By stopping the recount, perhaps calling the election, the Court had hurt itself. 6
Whether the decision was right or wrong is not the point here. If I and three other members of the Court thought the decision was very wrong, so did millions of other Americans. For present purposes, however, what is important is what happened next. Gore, the losing candidate, told his followers not to attack the legitimacy of the Court’s decision. And despite the great importance of the decision, the strong disagreement about its merits, and the strong feelings about the Court’s intervention, the public, Democrats as well as Republicans, followed the decision. They did so peacefully, with no need for troops as in Little Rock, without rocks hurled in the street, without violent massive protest. The leader of the U.S. Senate, Harry Reid, a Democrat, later said that the public’s willingness to follow the law as enunciated by the Court constitutes a little-remarked, but the most remarkable, feature of the case. I agree. 7
T HE C HEROKEE CASE ,
Dred Scott
, Little Rock, and
Bush v. Gore
are all different. In the Cherokee case the president sent troops not to enforce the Court’s decision but, on the contrary, to evict the Cherokees and send them to Oklahoma. In
Dred Scott
the Court’s own faulty decision helped bring about a war that the Court had sought to avoid. In Little Rock a president and the Court together enforced a decision that was highly unpopular in the South and together helped to eventually makethe Constitution’s protection of racial minorities effective. In
Bush v. Gore
the public simply assumed, as it does today, that it should peacefully follow an important controversial decision.
The cases show that public opposition to a Court decision can take many forms. Like Georgia’s governor and his fellow Georgians in the Cherokee case, a public official or the public itself might refuse to follow a Court order. Like Andrew Jackson, opponents might find a way to avoid violating the order in an individual case but still refuse to apply the Court’s legal principle to other instances. Like Abraham Lincoln after
Dred Scott
, opponents might express uncertainty about whether the Court has more right to interpret the Constitution than do the states or the people. Or, like much of the South after
Brown
, opponents might simply delay, trying to wait out or outmaneuver attempts at enforcement.
The examples taken together nonetheless make a simple point: America’s public officials and the American public have come to accept as legitimate not only the Court’s decisions but also its interpretations of the Constitution. The public has developed a habit of following the Court’s constitutional interpretations, even those with which it strongly disagrees. Today we find it as normal to respect the Court’s decisions as to breathe the air around us.
This public habit has obvious advantages. An effective judiciary, capable of enforcing contracts honestly without corruption, helps, as much as any other institution, to encourage economic investment, and thus growth and prosperity. An increasingly diverse American population has come to realize the importance of
Whether the decision was right or wrong is not the point here. If I and three other members of the Court thought the decision was very wrong, so did millions of other Americans. For present purposes, however, what is important is what happened next. Gore, the losing candidate, told his followers not to attack the legitimacy of the Court’s decision. And despite the great importance of the decision, the strong disagreement about its merits, and the strong feelings about the Court’s intervention, the public, Democrats as well as Republicans, followed the decision. They did so peacefully, with no need for troops as in Little Rock, without rocks hurled in the street, without violent massive protest. The leader of the U.S. Senate, Harry Reid, a Democrat, later said that the public’s willingness to follow the law as enunciated by the Court constitutes a little-remarked, but the most remarkable, feature of the case. I agree. 7
T HE C HEROKEE CASE ,
Dred Scott
, Little Rock, and
Bush v. Gore
are all different. In the Cherokee case the president sent troops not to enforce the Court’s decision but, on the contrary, to evict the Cherokees and send them to Oklahoma. In
Dred Scott
the Court’s own faulty decision helped bring about a war that the Court had sought to avoid. In Little Rock a president and the Court together enforced a decision that was highly unpopular in the South and together helped to eventually makethe Constitution’s protection of racial minorities effective. In
Bush v. Gore
the public simply assumed, as it does today, that it should peacefully follow an important controversial decision.
The cases show that public opposition to a Court decision can take many forms. Like Georgia’s governor and his fellow Georgians in the Cherokee case, a public official or the public itself might refuse to follow a Court order. Like Andrew Jackson, opponents might find a way to avoid violating the order in an individual case but still refuse to apply the Court’s legal principle to other instances. Like Abraham Lincoln after
Dred Scott
, opponents might express uncertainty about whether the Court has more right to interpret the Constitution than do the states or the people. Or, like much of the South after
Brown
, opponents might simply delay, trying to wait out or outmaneuver attempts at enforcement.
The examples taken together nonetheless make a simple point: America’s public officials and the American public have come to accept as legitimate not only the Court’s decisions but also its interpretations of the Constitution. The public has developed a habit of following the Court’s constitutional interpretations, even those with which it strongly disagrees. Today we find it as normal to respect the Court’s decisions as to breathe the air around us.
This public habit has obvious advantages. An effective judiciary, capable of enforcing contracts honestly without corruption, helps, as much as any other institution, to encourage economic investment, and thus growth and prosperity. An increasingly diverse American population has come to realize the importance of
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