Does the Public Care Whether the Court is Political?

Abstract:     
Many argue whether the Supreme Court makes law or practices politics. Justice Felix Frankfurter, in his dissent in Baker v. Carr, offered this proposition for why the distinction is important: "The Court's authority—possessed of neither purse nor sword—ultimately rests on sustained public confidence in its moral sanction." It's an important idea never put to test. This Article enters that gap. Parsing Frankfurter's words unpacks their meaning and shows the reliance placed on them by today's justices. Results from polls and surveys taken over the past half-century make clear the public expresses positive views of the Court, just as Frankfurter presumed, especially relative to the coordinate departments of government his proposition mentions. At the same time, however, members of the public are well aware the Court sometimes acts politically. Importantly, they do not necessarily disapprove. It follows that public support for the Court rests, in no small part, on something other than its ability to sustain "public confidence in its moral sanction." Besides, in this polity, the Court holds no monopoly on the wish or the need to convince the public that more than mere politics motivates its actions. Here the Court may hold considerable advantage over the other branches. Frankfurter's proposition, eloquent and stated so strongly, may be a useful warning to the Supreme Court, and to the other branches, too, for that matter, but it's no prime directive to the former.

Number of Pages in PDF File: 48

Keywords: Supreme Court,public opinion,law and politics,law and society,Frankfurter

working papers series