How the U.S. Supreme Court Is Not Like the Harry Potter Wizengamot

Slate's blog on legal issues.
May 22 2008 5:18 PM

How the U.S. Supreme Court Is Not Like the Harry Potter Wizengamot

I agree that much of the Rasmussen poll puzzle presented by Eric is solved by the Findlaw survey results presented by Diane . I take Eric’s puzzle to be why Americans rate the Supreme Court more highly than its constituent members (especially when we suspect that the Congress is not necessarily more highly rated than its individual members). I take Diane’s solution to be that 57 percent of Americans can’t name a single member of the Court (especially when we suspect that many more Americans could name a member of Congress). The remaining question is why the individuals who constitute these two bodies differ so much in their visibility as individuals. After all, it would seem that nine individuals might be more visible than 535 individuals, precisely because one could keep track of the players (as many lawyers do). The answer is both structural and, to a certain extent, volitional.

Certain structural features of the Supreme Court make it less likely to be viewed as the sum of its parts. Most obviously, members of the Court have life tenure, which is to say they are not constantly up for re-election. This means that the greatest publicity most Justices get in their careers is during their confirmation hearings. It is no surprise that, according to the Findlaw survey, Justice Sandra Day O’Connor is the Justice most Americans (27 percent) could name, while Justice Clarence Thomas (21 percent) placed second.   Justice O’Connor was extremely visible during her confirmation proceedings because of her gender; Justice Thomas was extremely visible during his because of his race and because of the Anita Hill scandal. The Justices whose confirmation hearings were less memorable tended to be less well remembered overall:   Only 3 percent of Americans could name Justices Stephen Breyer or John Paul Stevens.

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It should also be noted that there are times when members of the Court exercise their agency to dissolve into the immortal corporate entity known as "the Court."   Chief Justice John Marshall, for instance, not only persuaded his colleagues to depart from the English practice under which each Justice issued a separate opinion, but also—with more limited success—sought to have the Court speak with outward unanimity.   Even in modern times, when unanimity is the exception rather than the rule, the exceptions are important.   Chief Justice Earl Warren went out of his way to get a unanimous opinion in Brown v. Board of Education —visiting Justice Robert Jackson in his hospital room to persuade him to join the majority opinion and telling Justice Stanley Reed that Reed, as a Southerner, would give too much fodder to segregationists if he dissented.   And in the years following Brown , the Court extended its unanimous holding that "separate educational facilities are inherently unequal" to public transportation and recreational facilities through "per curiam" opinions that were, literally, "for the Court."

For these structural and volitional reasons, individuals on the Court are much less likely to be visible than individuals in Congress.   Indeed, the relative invisibility of the Justices may arise in part because of, rather than in spite of, their small numbers.   Nine is a number that has the special property of being greater than one but fewer than 535.   If there were only one member of the Supreme Court, I would be more surprised if the majority of Americans did not know the name of that Justice (Chief Justice?).   Similarly, if the Supreme Court were a fifty-plus person body like Harry Potter’s Wizengamot or a 535-member body like Congress, I would expect more people to have heard of an individual Justice. (Let us pray more Americans can name a current Supreme Court Justice than can name a member of the Wizengamot who was seated during Harry Potter’s hearing in Book 5.) One could posit, then, that individual anonymity for those who belong to famous institutions is a bell curve, with middle numbers assuring greater anonymity for the individual than larger or smaller ones.   The members of a nine-member Court may achieve anonymity because they can speak as one person without being one person.

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