P, Popular Images of the Court.
Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman
Edited By: Kermit L. Hall
Popular Images of the Court.
The American public received its earliest impressions of the Supreme Court from the newspaper debates that preceded ratification of the Constitution. Proponents of a strong national government assured readers that the new federal judiciary would be the “*least dangerous branch” of the government, since the Court would have no control over the nation’s finances or military forces. In The *Federalist Papers (1787–1788) Alexander *Hamilton further defended the life-tenure and salary provisions of the Constitution as essential devices to protect a body of skilled jurists from the encroachments of Congress and the Executive (no. 78). Opponents of the Court, on the other hand, charged that, with its independence of popular control, it might easily become a despotic agency bent upon its own aggrandizement. Pennsylvania Judge George Bryan, the reputed author of the widely circulated letters of “Centinel” (1787–1788), predicted that the Court would collaborate with Congress to establish a dangerously consolidated government, in which citizens might have to travel hundreds of miles to prosecute a lawsuit (letter no. 2). These archetypal images of the Court—a group of Platonic guardians versus a conspiratorial political cabal—have persisted, and continue to provide a point of departure for creative writers.
Early novelists and playwrights made only fleeting references to the Court in their works. To the average American in the decades before the Civil War, Washington seemed a distant—almost a foreign—capital, whose agents seldom intruded in any dramatic fashion upon the daily lives of citizens. Republican government, as practiced in a decentralized and sparsely populated country, implied strong local and regional loyalties as well as a permissive legal environment that encouraged private entrepreneurial activity and capital accumulation. In such a context the Court made little appeal to the literary imagination, especially since most writers believed that the justices were merely passive oracles of the law and had no hand in shaping important public policies.
Some early satirists introduced a Court scene into their plots as part of a larger commentary on the manners and mores of the Washington community. Typically, one character would escort a guest around the Capitol at some point in the story, and they would drop by the courtroom while an argument was in progress. The author would describe the justices in some detail, picturing them as physical embodiments of republican virtue: aged, learned, and impartial. A reverential mystique of the robe thus pervades the Court sections of such otherwise humorous works as Charles Jared Ingersoll’s Inchiquin, the Jesuit’s Letters, During a Late Residence in the United States of America (1810) and George Watterston’s The L. … Family at Washington (1822). A rare political cartoon of 1834 likewise emphasizes the Court’s moral authority by representing it as a statue of Justice atop a pedestal inscribed “Constitution.”
Contradicting these images of judicial rectitude were several works in which justices conspire with ambitious presidents to destroy republican government. J. Horatio Nichols’s play Jefferson and Liberty (1801) indicts the Adams administration for attempting to create a privileged aristocracy in America with the help of a corrupt federal judiciary. According to Nichols, a “reign of terror” accompanied the Court’s partisan enforcement of the unpopular *Sedition Act; and he identifies Associate Justice Samuel *Chase as the president’s chief accomplice in the illegal suppression of political dissent.
A generation later Nathaniel Beverley Tucker described a comparable abuse of judicial power in his cautionary tale The Partisan Leader (1836). The story opens in 1849, by which time fourth-term president Martin Van Buren’s centralizing policies have driven most Southern states to form an independent confederacy. To maintain his tyrannical control of the North and West, Van Buren relies upon an inner circle of trusted advisers, including the servile Judge Baker of the Supreme Court. Out of self-interest Baker supports the aggrandizement of presidential power, and even agrees to convene an extraconstitutional court at Washington for the treason trials of those who resist Van Buren’s decrees.
Judicial plots against the central government also figured in imaginative literature by the time of the *Civil War. In 1861 a New York publisher reprinted The Partisan Leader as evidence that a Southern conspiracy to dismember the Union had long existed. Antislavery writers linked the Court to such a conspiracy, especially after the notorious Dred *Scott decision of 1857. Martin R. Delany’s serialized novel Blake; or, The Huts of America (1861–1862) portrays the Court as a nest of slaveholders and Northern racists, who twist the law to promote the political agenda of (p. 761) the Cotton Kingdom. Through his protagonist, Blake, Delany contrasts Chief Justice Roger *Taney (“the puppet figure … of the American Supreme Court”) with Lord Mansfield of England, a jurist of “colossal stature,” who had ruled in Somerset’s Case (1772) that any slave brought to England was automatically entitled to freedom. James Russell Lowell’s popular series of wartime poems The Biglow Papers (1862–1866) likewise denounced the Court for its Southern sympathies and for its legalistic obstruction of the early war effort.
None of these writers described the Court as a working institution, or attempted to dramatize a justice’s personal life. Nor did the federal judiciary make any stronger impression upon the fiction of the late nineteenth century. Albert Gallatin Riddle did devote one chapter of his Washington novel Alice Brand (1875) to a reception hosted by Chief Justice Salmon P. *Chase at his home, thereby suggesting the social prominence enjoyed by members of the Court. Typically, however, this was the only reference to the Court in a long book that otherwise dealt with corruption in Congress and the executive branch.
The cartoonists of the Gilded Age in fact offered readers more revealing glimpses of the Court than did novelists and playwrights. Thomas Nast denounced the presidential ambitions of Justices Chase and David *Davis in a biting cartoon of 1872. To illustrate the evils of a politicized bench, Nast pictured the two men in judicial robes, seated before a statue labeled “Justice(?),” whose blindfold reads “Politics” and whose scales are tilting dangerously to one side. From a different perspective, Joseph Keppler satirized the Waite Court’s old-fashioned methods of dealing with an increasing workload in “Our Overworked Supreme Court,” a memorable 1885 cartoon. Set in the judicial conference room, Keppler’s drawing showed the justices vainly attacking a mass of undecided cases with quill pens, as messengers dump boxes of new petitions and appeals on the table and floor.
By the 1890s, as Keppler suggests, the leisurely agrarian republic of the Founding Fathers had long ceased to exist. In its place had arisen an industrial democracy, whose bloody labor conflicts threatened at times to overwhelm a political system still wedded to laissez-faire values. Turn-of-the-century reformers, fearing a successful socialist revolution, attempted to protect workers and consumers from the worst abuses of giant corporations. With the passage of the Interstate Commerce Act in 1887, Congress launched the modern regulatory state, and the Court, through its review of such national legislation, soon came to occupy a more prominent place in the public consciousness (see administrative state; interstate commerce commission).
A series of controversial early decisions helped to shape popular perceptions of the Court through the first forty years of the twentieth century. In 1895 the justices struck down a progressive income tax law, refused to apply the *Sherman Antitrust Act against the hated Sugar Trust, and approved the issuance by federal judges of sweeping *injunctions against workers in labor disputes. A predictable outcry followed these actions and inspired several utopian novels that called for a “peaceful” or “legal” revolution to restore political power to the people. Since, according to the authors, each branch of the government was controlled by corporate interests, fundamental change could only be brought about through the assembling of a “people’s convention” to rewrite the Constitution. The new charter invariably borrowed planks from the populist program and granted to the federal government regulatory power that had recently been denied by the Court.
Henry O. Morris, whose Waiting for the Signal (1897) went through several printings, dramatized the people’s case against the Court more effectively than other utopian novelists. Morris mixed living persons with his fictional characters and appropriately permitted Eugene Debs to deliver the principal attack on the high bench:
The money power now dominates every department of justice, even to the Supreme bench [Debs asserts]. It is not possible for a poor man to get into the Supreme Court. It is omnipotent and answerable to nobody. A short time ago Congress passed a law taxing the rich of the country, and this court adjudged it unconstitutional. If this law had been a tax on the poor, it would have been all right. Under the laws of the land the rich are always right, the poor are always wrong. (p. 228)
In Morris’s tale the Court, prodded by the “multimillionaires,” unwittingly starts a revolution by declaring all labor organizations illegal under the Sherman Act. Thereupon the workers go underground, form secret revolutionary lodges, ally with other discontented social groups, and take over the government through generally bloodless coups launched on 1 May (see labor). Once order is restored, a popularly elected convention drafts a “people’s constitution” that guarantees employment to every person, revives the income tax, toughens the antitrust law, and nationalizes the railroads and telegraph companies. Under the new system the justices will be chosen by Congress for a single term of eight years, after which they will be ineligible for other political appointments.
The image of the Court as the guardian of economic privilege recurred often in the fiction of the early twentieth century. Some writers described a direct link between the justices and an “invisible government” whose interest they (p. 762) served. In Reginald Wright Kauffman’s socialist novel The Spider’s Web (1913), the justices are little more than hired employees of a sinister “Money Power,” while a “Napoleon of finance” in Charles Klein’s long-running Broadway play The Lion and the Mouse (1906) engineers the *impeachment of Judge Rossmore, the only member of the Court he cannot bribe.
Other writers absolved the justices of personal corruption and explained their conservative decisions in terms of socioeconomic conditioning. When the Court strikes down a federal child labor law in Isaac K. Friedman’s The Radical (1907), the author comments that the justices were “human, therefore fallible too, swayed by the prejudgments and the class consciousness of those to whom they owe birth, education and power” (p. 337). And Robert Herrick’s A Life for a Life (1910) portrayed the justices as ancient logic machines, programmed to respond only to the legal formulas of a preindustrial age. When a government lawyer in an important antitrust case urges public policy considerations upon the Court, one justice inquires irritably: “Is it law or equity you are discussing?” (p. 222). The defendant corporation wins the case, because its counsel avoids all mention of justice or morality and argues instead from “irreproachable logic.” Herrick’s scene effectively captures the formalism of American jurisprudence at the turn of the century, when law was widely regarded as an objective science whose progress depended upon a strict adherence to established precedents.
Cartoonists of the early twentieth century commented more frequently on specific decisions than their predecessors had done. When the justices approved federal regulation of the meatpacking industry in *Swift and Company v. United States (1905), a Washington Post cartoon pictured the Court as a cowboy lassoing a mad bull (the “Meat Trust”). Conversely, judicial invalidation of an important child labor law in *Hammer v. Dagenhart (1918) provoked a sharply negative cartoon response in the Liberator magazine. The drawing showed a portly, cigar-smoking boss herding a crowd of undernourished children into a factory yard, with the caption: “Now, children, all together, three cheers for the Supreme Court.” Such pointed cartoon criticism, which often appeared in syndicated newspapers or mass circulation magazines, attests to the public’s heightened awareness of the Court as a powerful national institution.
While the Court’s response to economic regulation shaped its popular image for most Americans down to World War II, some creative writers also considered the impact of its civil rights decisions. Sutton E. Griggs, whose privately printed novels circulated widely within the African-American community, portrayed the Court as a bastion of Anglo-Saxon racism. “The Supreme Court of the United States,” comments a charismatic black leader in Grigg’s Imperium in Imperio (1899), “may be relied upon to sustain any law born of prejudice against the Negro, and to demolish any law constructed in his interest” (p. 237). Unable to obtain justice from the white establishment, the “Imperium”—a black nationalist organization—creates a parallel shadow government in Texas and prepares to wage a race war against white America. Other works, including Charles W. Chesnutt’s The Colonel’s Dream (1905) and Walter F. White’s The Fire in the Flint (1924), described the vicious caste system that the Court had legitimized in *Plessy v. Ferguson (1896).
During the Great Depression of the 1930s, Americans reassessed their attitudes toward the judiciary in light of Franklin D. *Roosevelt’s unprecedented recovery programs. Conservatives applauded the Court’s opposition to early New Deal measures and pictured the justices as the last defenders of responsible republican government. “The Supreme Court is our Gibraltar,” exulted David Milton Proctor in Payday (1936), a satirical attack upon the Roosevelt administration. “The people who prepared this New Deal legislation never read the Constitution, I am sure. If the New Dealers ever studied it, it was through some kind of a correspondence course” (pp. 102–103).
To liberals, on the other hand, the justices seemed willful obstructionists, who placed their ideological preferences and outmoded norms of constitutional interpretation ahead of the public welfare. The “Living Newspaper” productions commissioned by the Federal Theatre Project offered the most striking demonstrations of the Court’s power to affect the future well-being of average Americans. Designed for popular audiences of limited means, the “Living Newspapers” dramatized contemporary social problems by combining imaginary characters and incidents with re-creations of real-life events, as reported in the daily press.
In Power (1937), playwright Arthur Arent argued the case for public ownership and distribution of electrical power, and brought the Court into his script as a kind of deus ex machina. Using a stylized representation of the high bench surmounted by nine illuminated facial masks, he quoted directly from the majority and minority opinions in *Ashwander v. Tennessee Valley Authority (1936), a decision that upheld the constitutionality of TVA legislation within narrowly defined limits. As the decision is announced, a character shouts: “TVA has won!” and a crowd of people pours onstage for an impromptu victory celebration. But the Voice of the “Living Newspaper” interrupts them to report that the power companies are bringing a new test (p. 763) case to the Court. It will decide the ultimate fate of TVA and “other projects through which the people seek to control their water power, to save their soil, and to obtain cheap energy” (p. 88). At this news, the people onstage all move one step forward, and ask: “What will the Supreme Court do?” A huge question mark then appears on the scrim, and the curtain falls.
Several weeks before the premiere of Arent’s play, the president announced his plan to “reform” the Court by appointing six additional justices. The unsuccessful *court-packing fight that ensued gave cartoonists a chance to employ a new symbol of judicial authority: the “marble palace” to which the justices had moved in October 1935. One of the most effective anti-Roosevelt cartoons shows the Court building with a giant target painted across its front, while the president, holding a paint brush, calls: “‘Fire’ when you are ready, Congress!” Supporters of the administration, on the other hand, pictured the Court as a ball and chain restraining “Public Welfare;” or as massive boulders obstructing the passage of a “New Deal Emergency Ambulance.”
In contrast to the cartoonists, no novelist took up the Court fight for another quarter century. Nor did it inspire any stage productions, with the single exception of George S. Kaufman and Moss Hart’s musical comedy I’d Rather Be Right (1937). In this zany farce Franklin Roosevelt wanders around Central Park trying to think up ways to balance the budget, so that a young couple, Phil and Peggy, can get married. Every time he comes up with a newidea fora law, however, the Supreme Court justices—all looking like clones of Charles Evans *Hughes—pop up from behind rocks and bushes, to warn: “Oh no! No, you don’t!” Eventually Roosevelt learns that the justices are mad at him mainly because he once called them “old fogies.” To prove that they are not, they give a shrill whistle, summoning nine shapely chorus girls who join them in a strenuous song-and-dance number titled “Having a Little Constitutional Fun.” After this, they all disappear again into the bushes. Roosevelt, looking after them, muses: “You know, if I’d suggested putting six new girls on the Bench, I’ll bet they’d have said, ‘All right’” (p. 63). While the image of the justices as foxy grandpas did nothing to improve popular understanding of the Court, it provided at least a welcome respite from the customary solemnity associated with the high bench.
In the 1940s and 1950s several new trends, both jurisprudential and literary, coalesced to make the Court a more attractive and accessible subject for creative writers. First in importance was a major change in the kinds of cases that came before the Court. After 1937 the justices accepted the legitimacy of federal and state economic regulation and turned their attention increasingly to civil rights issues. Through the *Due Process Clause of the *Fourteenth Amendment they gradually applied the guarantees of the *Bill of Rights for the first time to the states. This trend, which was accelerated during the era of the Warren Court (1953–1969), brought up for decision a whole new range of problems that were at once controversial and inherently dramatic, such as the rights of suspects in state criminal proceedings.
Certain advances in the art of judicial biography also increased the attractiveness of the Court as a literary subject. The spectacular success of Catherine Drinker Bowen’s A Yankee from Olympus (1944)—which was in turn a best-selling book, a play, a movie, and a television drama—emphasized that there was a definite market for gossipy stories about the private life of a colorful judicial personality. Mrs. Bowen’s sentimental, and somewhat cloying, portrait of Oliver Wendell *Holmes harked back in some ways to the tearjerkers of the nineteenth century; but none could deny that the public loved it.
Quite different in design and execution was Alpheus Thomas Mason’s Harlan Fiske Stone: Pillar of the Law (1956), a massive award-winning study that illuminated the inner workings of the Court as no previous book had done. Mason made extensive use of *Stone’s personal papers, which included draft opinions circulated among the justices for their individual comments. This evidence exposed the bickering and bargaining that went on among the justices in important cases, and some reviewers charged that Mason had violated the privacy of the Court. His book nevertheless provided invaluable insights into the court’s deliberations and served as a model for later judicial biographies. Its legacy also includes Bob Woodward and Scott Armstrong’s best-seller, The Brethren: Inside the Supreme Court (1979), which relied heavily upon interviews with the justices’ law clerks.
As popular nonfiction studies of the Court multiplied, writers began to produce the first full-dress treatments of the high bench in American literature. Novels that explore in some depth the internal and external pressures operating upon the Court include: Andrew Tully’s Supreme Court (1963); William Woolfolk’s Opinion of the Court (1966); Henry Denker’s A Place for the Mighty (1973); Walter F. Murphy’s The Vicar of Christ (1979); William J. Coughlin’s No More Dreams (1982); Margaret Truman’s Murder in the Supreme Court (1982); and Allen Drury’s Decision (1983). Two plays of the 1970s also deserve mention: Jay Broad’s A Conflict of Interest (1972) and Jerome Lawrence and Robert E. Lee’s First Monday in (p. 764) October (1978), which enjoyed a second life as a 1981 movie.
Collectively, these works tend to follow a common format: a new justice is appointed to the Court. He or she meets the brethren, each of whom expresses a clearly articulated juristic philosophy and displays some distinguishing personal eccentricity. The physical and intellectual traits of living justices are carefully scrambled, so that recognizable liberals come out sounding like conservatives, and vice versa. The new appointee finds him- or herself immersed at once in a series of dramatic cases. These generally involve recent civil rights issues that have been widely discussed in the media. After hearing oral argument, the justices deliberate gravely, even portentously, with one another. They are well aware of the historic dimensions of their work. As one character in The Vicar of Christ puts it, “One could look at a finished opinion and know that it would shape the future course of the law and perhaps even western civilization” (p. 138). Often tempers flare; brawls break out in the *robing room and acrimonious debate resounds at the conference table. But at some point institutional loyalties prevail over personal differences, as the justices join in a common effort to save the Court from some external danger, usually provided by a new court-packing plan or a threatened impeachment.
To balance these professional tensions, most authors add a generous share of painful domestic problems. The central judicial character in many cases turns out to be a man of early middle age, whose romantic involvements threaten to impair the moral influence of the Court. A few examples: shall debonair bachelor Francis Dalton, forty-three, the youngest justice on the Court, go through with his plans to marry a beautiful actress, knowing that her scandal-ridden past will shock the public and trouble some of his brethren? (Supreme Court)? Or, shall Associate Justice Paul Lowe, forty-six, a rugged Nebraskan, divorce his wife of twenty-five years, whom he has never really loved, to marry an exciting newspaperwoman who is secretly dying of leukemia? (Opinion of the Court)? Such situations suggest the major weakness of these books: Despite their well-researched backgrounds, even the most ambitious do not rise above the level of soap operas.
Yet they do attest to the important place which the Court now occupies in the American imagination as the protector of minority rights. Innumerable television crime dramas, including the hit series Dragnet (1967–1970), have familiarized audiences with the rights of suspects, as defined in the *Miranda decision of 1966; and many other television and movie scripts have explored the impact of the Court’s desegregation rulings. The Warren Court in particular has become a potent symbol of egalitarianism, as in Gideon’s Trumpet (1980), a made-for-television docudrama in which the justices seem almost as wise and Olympian as their counterparts in the fiction of the early republic.
Other writers, to be sure, have condemned the Court’s activism, especially in the area of criminal justice. Drury’s Decision presents a sympathetic view of the victims’ rights movement, and reaches a climax when his protagonist—a liberal justice—joins four colleagues in weakening drastically the restraints imposed on the police by Miranda. Behind such assaults on the Warren Court’s legacy lies the image of an imperial judiciary that has usurped power from the more representative branches of the government (see judicial activism). “In recent times Federal court judges have taken unto themselves the right to ignore all past precedents, and indeed pursue their own sociological and political beliefs,” complains Judge Harry Spencer, the old-fashioned hero of Henry Denker’s polemical novel Judge Spencer Dissents (1986). “The right of the Federal courts to make the law as well as interpret it has become part of our judicial function” (p. 274).
From a somewhat different perspective, the acrimonious confirmation hearings on Robert *Bork in 1987 and Clarence *Thomas in 1991 left millions of television viewers with a heightened awareness of the power of a single justice to change the law in some controversial area, such as abortion. Building upon such a personalized view of judicial decision making, John Grisham made the composition of the Court the centerpiece of his best-selling suspense novel The Pelican Brief (1992), which also became a popular film. Grisham’s plot turns upon the murder of two environmentalist justices by the agents of a wealthy entrepreneur, who plans to secure valuable oil-drilling rights in a wildlife refuge once two new justices have been appointed by a conservative president. While most of the novel follows the efforts of a law clerk to unravel the murder conspiracy, the underlying message is clear: a slight change in the Court’s composition will produce predictable and momentous changes in the law.
This image of ideological determinism is by no means confined to fiction. Religious broadcaster Pat Robertson has urged his many listeners to pray for God to remove three pro-choice justices from the Court. “Operation Supreme Court Freedom,” launched by Robertson on 7 July 2003, on his Christian Broadcasting Network, sought to mobilize the Almighty through twenty-one days of prayer to persuade these “misguided” jurists to retire. “With their retirement and the appointment of conservative judges, a massive change in federal jurisprudence can take place,” he declared, leaving (p. 765) no doubt that this change would include the final overthrow of Roe v. Wade (1973).
References to the Court have continued to multiply in popular culture. For the first time, the justices became the focus of two one-hour-long drama series that aired on prime-time television during the early months of 2002. Neither First Monday nor The Court departed appreciably from well-established plot lines and judicial stereotypes. In each show a new justice became the swing vote on a sharply divided tribunal, and found himself (First Monday) or herself (The Court) lobbied by others. Some of the issues facing the Court were updates: early episodes of First Monday involved the legality of the death penalty when applied to a retarded teenager and the right of a sixteen-year-old girl to have an abortion, despite her parents’ objections. The writers for these series also paid much attention to the lives of the justices’ clerks, in an effort to attract younger viewers. And some scripts noted the heightened security concerns of the justices since the terrorist attacks on New York City and Washington, D.C., on 11 September 2001.
Both programs continued to present a familiar and sanitized image of the Court, however. When First Monday introduced the subject of vote trading among the justices, the writers quickly moved away from the suggestion that some of the brethren pursue a political agenda. (Yet little more than a year earlier, the Rehnquist Court had intervened in the political process in a dramatic and unprecedented fashion. The ruling in Bush v. Gore  determined the outcome of a bitterly contested presidential election by a 5-to-4 vote and cast lasting doubt upon judicial claims of impartiality.) Viewer interest in both fictional courts peaked early, then quickly waned. With a slightly stronger cast and some humorous characterizations (including an elderly justice who spouts limericks about the cases under review), First Monday won a larger audience than The Court, which was pulled after only three episodes.
Despite the Court’s greater visibility in the media in the early twenty-first century, it probably remains something of a mystery to most Americans. Creative writers from Watterston to the present have often characterized the justices as a priestly class, referring to their duty to expound the ambiguous language of the Constitution. On a superficial level, the black judicial gown reinforces the image. “People assume,” remarks a character in Broad’s play, A Conflict of Interest, “that when a man becomes a member of the court, he is beatified and from that day hence, like a saint, he does not even have to go to the bathroom” (p. 38). But in a more meaningful sense, the justices do function as the keepers of the national conscience. They are called upon daily to choose between competing social policies in the light of democratic values, and thus to shape the changing national character. The process is tentative, never ending, and rich in literary potential.
Bernard W. Bell, The Afro-American Novel and Its Tradition (1987). Maxwell Bloomfield, “The Supreme Court in American Popular Culture,” Journal of American Culture 4 (Winter 1981): 1–13. Stephen R. Boyd and Linda D. Albritton, “Nineteenth Century Utopian Thought and the Supreme Court,” Legal Studies Forum 20 (1996) 401–419. Robert A. Ferguson, Law and Letters in American Culture (1984). Michael Kammen, A Machine That Would Go Of Itself: The Constitution in American Culture (1986). John D. Lewis, ed., Anti-Federalists versus Federalists: Selected Documents (1967). Gordon Milne, The American Political Novel (1966). Caspar H. Nannes, Politics in the American Drama (1960). Laura Krugman Ray, “Judicial Fictions: Images of the Supreme Court Justices in the Novel, Drama, and Film,” Arizona Law Review 39 (1997): 151–203. Pierre de Rohan, ed., Federal Theatre Plays (1938).