The Supreme Court: An Autobiography

DOIhttps://doi.org/10.1108/S1059-4337(2013)0000061009
Date29 April 2013
Pages179-201
Published date29 April 2013
AuthorKeith J. Bybee,Angela G. Narasimhan
THE SUPREME COURT:
AN AUTOBIOGRAPHY
Keith J. Bybee and Angela G. Narasimhan
ABSTRACT
What does the Supreme Court talk about when it talks about itself?
In addition to the debates over interpretive method and doctrine that fill
their opinions, Supreme Court justices often discuss what it means to be
‘‘a Court’’ and how such an institution must function. Our chapter
explores this specific form of judicial self-representation, examining the
ways in which members of the Court define their own ‘‘Court-ness’’ in
their decisions. We argue that the Court’s acts of autobiography simulta-
neously generate images of impartiality and partiality. The result is the
public projection of a contradictory judicial persona.
INTRODUCTION
The U.S. Supreme Court, like all courts, has historically been judged on the
basis of its looks. It has long been understood that it is not enough for
justices to make impartial decisions based on the facts, arguments, and law
before them; for public confidence in the Court to be sustained, the justices
must also visibly appear to be impartial (Brown & Wise, 2004; Gibson,
Caldeira, & Baird, 1998).
Studies in Law, Politics, and Society, Volume 61, 179–201
Copyright r2013 by Emerald Group Publishing Limited
All rights of reproduction in any form reserved
ISSN: 1059-4337/doi:10.1108/S1059-4337(2013)0000061009
179
The justices themselves presumably understand that looks matter and
must be maintained. The importance of proper appearances is well
recognized in the codes of conduct that govern state and federal judges
(Geyh, 2007; ‘‘Revised Code of Conduct for United States Judges,’’ 2009).
And the justices often position themselves as stewards of judicial
appearances, speaking out, for example, against the introduction of
television cameras into courtrooms on the grounds that the broadcasting
of court proceedings will compromise the judiciary’s image of impartiality
(Hollingsworth v. Perry, 2010).
Yet, in spite of ostensible judicial concern about impartial appearances,
the contemporary Supreme Court routinely looks like it is something less
than unbiased and detached (Brigham, 1987; Bybee, 2010, 2011). Consider,
for example, that the level of discord on the high bench has skyrocketed in
modern times (Gerber & Park, 1997; Henderson, 2008; ‘‘Nine Justices,’’
2004; Post, 2001; Walker, Epstein, & Dixon, 1988). Over 80% of the full
opinions announced by the Supreme Court in the 1920s were unanimous;
by the final years of the twentieth century, however, only a little over 35%
of the full opinions were joined by all the justices. With the Court divided
into readily identifiable ‘‘conservative’’ and ‘‘liberal’’ blocs, the regular
occurrence of disagreement does not project an image of the Court as an
impartial body settling individual disputes by enunciating fixed and certain
principles of law. On the contrary, the frequent incidence of splintered
decisions makes the Court look more like a fractious political body
squabbling over governance of the legal system. Whether or not the justices
are reasoning dispassionately, the closely divided votes and stinging dissents
that separate the dueling wings of the Court often make it appear like
judicial decision making is driven by partisan disputing (Bybee, 2010).
Indeed, it is the sharp rise in dissensus that provided the initial impetus for
scholars to study the Court as an essentially political enterprise (Walker
et al., 1988, p. 362).
The issue here, it is worth underscoring, is one of appearances. The
growing number of splintered decisions does not on its own prove that a
specific justice is actually driven by partisan preferences in a specific case.
Without more detailed information it is difficult to make accurate
judgments about motives, and even when more detailed information is on
hand observers still frequently disagree about the origins of a particular
judicial decision (Baum, 1997). The appearance of partiality itself none-
theless matters. A court that seems to be ruling on the basis of political
preference appears to violate the basic expectation that judges ought to
decide cases by looking ‘‘outside [their] own will for criteria of judgment’’
KEITH J. BYBEE AND ANGELA G. NARASIMHAN180

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