Making Our Democracy Work (12 page)

The last phrase eloquently recognizes the ultimate challenge of the Supreme Court’s role in American life. The Court aspires—it must aspire—not only to declare the “truth” about the Constitution’s meaning but also to make law “a
living
truth,” obeyed by the country and animating its social practices. But its ability to do so is not guaranteed.

Despite the Court’s opinion, it seemed that the State of Arkansas and the Little Rock School Board would continue to look for ways to oppose the Court’s insistence upon school integration. On September 27, 1958, two days before the Supreme Court released its full opinion, but almost two weeks after it had announced its ruling, Little Rock’s citizens voted, by a margin of 19,470 to 7,561, to close Little Rock’s public high schools. On September 29, the very day the Supreme
Court released its opinion, Governor Faubus closed the schools. And during the next nine months Little Rock’s high school students were without public education.
⁵¹

Nonetheless, the Court’s opinions, taken together with the determination that the executive branch showed in sending troops, gradually took effect. Matters slowly improved. Federal courts began to hold unlawful many of the state’s alternative educational systems, including the leasing of public school buildings to private state-funded academies. With business support, Little Rock elected three moderate members to its school board—thus achieving numerical equality with segregationist members. A local poll of Chamber of Commerce members showed support for reopening the schools. The chamber’s board of directors issued a resolution stating that the “decision of the Supreme Court of the United States, however much we dislike it, is the declared law and is binding upon us.… [B]ecause the Supreme Court is the Court of last resort in this country, what it has said must stand until there is a correcting constitutional amendment or until the Court corrects its own error.” Public opinion was beginning to shift.
⁵²

Although the board’s segregationists continued to press their cause, they were largely unsuccessful. When they sought to deny contract renewal to forty teachers who had tried to help the black students, the moderate members walked out. In the recall election the moderates won a close but clear victory. The newly constituted board then voted to reopen the schools. In 1959, one year after the Court decided
Cooper v. Aaron
, integrated schools returned to Little Rock.
⁵³

The turmoil and the school closings imposed a high personal cost on many students. Students of both races suffered, some suffering permanent harm. The Little Rock Nine displayed much bravery and dignity in dealing with the hatred around them. Some students (including members of the Little Rock Nine) attended schools in other districts or out of state. Others took correspondence courses from the University of Arkansas. Some followed their teachers’ presentations on local television stations. But for many these alternatives did not work. Central High’s all-state football team fell apart, and many members never received high school diplomas. And what was true of the team was true of the entire class. Many of Central High’s “Lost Class of ’59” were
unable to qualify for admission to college. Many found their lives changed permanently and for the worse.
⁵⁴

In addition to losing their education, their high school activities, perhaps their chance of college, many later came to regret their behavior at the time. They did not know how to explain their refusal to help their new black classmates. Some in later life worked to improve race relations. And in 1999, over forty years after troops appeared at Central High, Hazel Bryan, the woman photographed with her face contorted in rage, appeared publicly with one of the Nine, Elizabeth Eckford, to explain how they had achieved reconciliation.
⁵⁵

Others suffered setbacks. Brooks Hays, the congressman who arranged for Governor Faubus to meet with President Eisenhower, became known as a “moderate.” He lost the next election, while Governor Faubus remained in office until 1967.
⁵⁶

What happened in Little Rock did not produce speedy integration throughout the South. The civil rights movement was just beginning. Judges had not yet tried school busing as a remedy. But the Little Rock case did help prevent further violent community confrontations. It helped begin a process of integration that, in practice, is not complete. But today Central High is integrated. Fifty-two percent of its twenty-five hundred students are black; 42 percent are white. It has become one of the best public high schools in America, with 867 students taking at least one Advanced Placement course.
⁵⁷

For present purposes, the Little Rock story represents a hard-earned victory for the rule of law. The Court’s determination to enforce
Brown
was not solely responsible. The arrival of 101st Airborne paratroopers made a critical difference, as did the juxtaposition of two photographs, the first showing a white woman’s enraged face, the second showing federal troops surrounding and protecting the black children. So did the decision of a district judge ordering a governor to stop his interference, a decision that the president later enforced by sending troops. But the Court’s assertion of judicial supremacy—similar to that made earlier by the president, repeated by the Little Rock Chamber of Commerce, and used by others who sought integration (and an end to racial violence) in the South—was a critical ingredient.

Today, only a mile away from Central High, one can find the grave
of the wife of the Cherokee chief Ross. That grave marks the spot where she died on the Trail of Tears on her way to Oklahoma—after the government evicted her and her fellow Cherokees from their Georgian lands. The grave and the school together tell a story about acceptance of the rule of law in America. Although the distance between the grave and the school is small, the nation had come a long way in the time between the two decisions that they symbolize. It was moving in the right direction.

I
N RECENT DECADES
any number of Court decisions have closely divided the justices and proved highly unpopular with large numbers of Americans. Consider, for example, the decisions protecting a woman’s decision to have an abortion in the early months of pregnancy. Or consider the decisions forbidding prayer in public schools. In such cases the constitutional questions are difficult; not surprisingly, the judges, who patrol the Constitution’s boundaries, have reached different conclusions. As the issues divide judges, they divide communities. Supporters and opponents have marshaled strong arguments as to why the other side is wrong. Some feel strongly that the life of an embryo must be protected or that young students who attend public schools should be exposed to religion. Others feel strongly to the contrary. Nonetheless, despite the disagreement and related emotions, despite protests, Americans by and large have adhered to the Court’s decisions. And most opponents, even, for example, opponents of the abortion decisions, look for lawful methods to change unwanted decisions (for example, through constitutional amendment, the president’s appointment power, and consequent erosion of, or change in, current law made by the Court itself).
¹

Focus for a moment on
Bush v. Gore
. The 2000 presidential election was close. The Democratic Party candidate, Albert Gore, won the popular vote nationwide. But the Republican Party candidate, George Bush, after litigation that ultimately reached the Supreme Court, secured Florida’s disputed electoral votes, won a majority of the votes in the Electoral College, and became president of the United States.
²

That result turned on technical but important constitutional matters. The Constitution provides that the “Person having the greatest Number” of (currently 538) electoral votes for president, “shall be the President, if such Number be a Majority of … Electors appointed.” The Constitution entitles each state to a number of electors equal to the “Number of Senators and Representatives” from that state. Furthermore, it requires each state to select its electors “in such Manner as the Legislature thereof may direct.” Florida’s legislature, like that in almost every state, directed that the presidential candidate who receives the highest popular vote would receive all the state’s electoral votes.
³

Initially, Bush led Gore in Florida by fewer than two thousand votes out of the roughly six million votes cast. After an automatic recount diminished Bush’s margin of victory but still showed him coming out ahead, Gore challenged the results and sought recounts in four congressional districts that traditionally voted Democrat. On December 8, after a series of lower-court decisions, the Florida Supreme Court agreed to order a recount of the entire state. Bush immediately claimed that the Florida court’s decision ordering these recounts violated the federal Constitution. On December 9, the Supreme Court agreed to hear the case. And three days later it held in favor of Bush by a vote of 5 to 4.
⁴

Three members of the Court majority believed the Florida court’s decision strayed so far from what Florida statutes required that it violated the federal constitutional provision empowering the state’s legislature (not its courts) to direct how the state should choose its electors. Other members of the Court found a fundamental unfairness in the fact that the Florida court had permitted its statewide recount to proceed with different counties judging the validity of ballots according to different standards, including standards that might favor the candidate of one party over the other. For a combination of these reasons (along with the fact that the Electoral College was soon due to meet) the Court majority ordered Florida to stop its recount—at a point when Bush still held a narrow majority of the popular vote.
⁵

Four members of the Court (including me) dissented on the critical point of continuing the vote count. Pointing to statutes that permitted Congress to eventually resolve electoral disputes of this kind, they argued that political institutions and state courts, not the U.S. Supreme
Court, 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 make
the 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.