The Cult Of The Court

The Cult Of The Court

John Brigham
Copyright Date: 1987
Published by: Temple University Press
Pages: 280
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  • Book Info
    The Cult Of The Court
    Book Description:

    In recent years widespread attention has been focused on decisions handed down by the Supreme Court that grapple with passionate issues: integration, school prayer, abortion, affirmative action. The appointment of new justices is a highly charged political event although the Court is supposed to be "above" politics. Amidst the bicentennial celebration of the Constitution and almost daily reports of major confrontations awaiting the highest court's judicial review, John Brigham presents a fresh and innovative examination of the U.S. Supreme Court as the final arbiter of constitutional interpretation.

    Drawing on philosophy and anthropology,The Cult of the Courtoffers a social scientific investigation of an institution whose authority has come to be taken for granted. The author emphasizes that the Court is an institution and that its authority is founded less in the claim of legal expertise than in hierarchical finality-the assertion of political will, not of legal judgment. He shows how the Court has supplanted the Constitution as the authority in our political world and that what makes legal "sense" is affected by these factors of institutionalization, bureaucratization, and court-dominated constitutionalism.

    eISBN: 978-1-4399-0383-4
    Subjects: Political Science

Table of Contents

  1. Front Matter
    (pp. i-iv)
    (pp. v-vi)
    John Brigham
  3. Table of Contents
    (pp. vii-2)
    (pp. 3-10)

    INSTITUTIONS LIKE the Supreme Court amount to ways of acting. In America, the steps to the “marble temple” behind the Capitol Building are the ultimate symbols of having gone “all the way,” and when robed men (and a woman) give opinions from the Temple, those opinions have authority sufficient to reprieve the convicted and compel that the rejected be accepted. Because institutions give action authority, they require more reflective scholarly attention than they have been given. We need to think about how institutional authority works. Such attention would place the Supreme Court in a conception of government linking the institution...

    (pp. 11-34)

    FOR THE productive life of more than one academic generation, or at least twenty years, social research on courts and law has been grounded in political jurisprudence (Shapiro, 1964). Whether the subject has been judicial interpretation, doctrinal developments, or policy impact, the epistemological frame gave priority to interests, and intellectual fascination examined the exercise of power under stress. Culminating, as journalism, inThe Brethren(Woodward and Armstrong, 1979), this research was diverse. It included, among other things, the game theoretic models of Walter Murphy (1964), the attitude studies of Glendon Schubert (1965; 1974), and the impact work of Kenneth Dolbeare...

    (pp. 35-62)

    THE CONSTITUTION as Higher Law and a maturing bar carried the Supreme Court to its authoritative position in American government. In America, the document engendered a claim by the legal community of superiority in interpretation, particularly the interpretation of texts dealing with fundamental rights and institutional relations. Articulated by Chief Justice Marshall inMarbury v. Madison(1803), legal supremacy did not become a reality until the twentieth century with the evolution of ideological and organizational support for judicial claims over politics. By then, an expert class had consolidated its authority over national policy, drawing on the Court and Constitution. Thus,...

    (pp. 63-92)

    BY CONVENTION, the justices of the Supreme Court, at work behind their bench in the courtroom, represent the institution. The picture of the only nonmilitary government officials with distinctive dress (Frank, 1949: 254), robed and in place for oral argument or to announce opinions, is an institutional icon. Quite often literally wrapped in institutional significance, the men and woman who have held this job were thought to grow when in their vestments. Although other officials are elevated by their office, when the justices are dressed to officiate at the Court, the submersion of person into an institutional presence is particularly...

    (pp. 93-128)

    THE JUSTICES of the Supreme Court work in an institutional setting that is a complex social and political phenomenon; perceptions, practices, and actions constitute the Court and locate it in American politics. All these factors give meaning to the building on Capitol Hill in Washington, D.C., where justices and their staff gather. The building has come to signify political as well as physical location. For the most part, the factors that constitute the institutional setting are products of two professional interests, law and administration. These interests have been politically shaped into institutional form. And rather than stone and marble, it...

    (pp. 129-166)

    THE VOLUME of disputes from which the justices may choose and the kind of legal issues given full treatment distinguish the Supreme Court today from the institution of only one hundred years ago. The number of cases coming “up” has transformed the Court, providing the opportunity to comment on just about any issue in public life. In addition, the disputes that are taken for authoritative action aren’t the same kind as they used to be. These changes in the docket make the Supreme Court a different institution today. “Agenda” issues and the interaction between form and substance, along with the...

    (pp. 167-194)

    JURISPRUDENCE HAS traditionally dichotomized judicial choice around the poles of law and behavior, or the formal and the political elements in judging. An institutional perspective bridges this dichotomy, linking the Supreme Court and the Constitution and bringing the common elements of law and behavior to the foreground. The common elements are practices. This chapter examines the institutional and doctrinal practices that turn disputes into Supreme Court decisions (or nondecisions). As noted in Chapter 2, formalism in law, commonly known by the aspiration to be a government of laws and not of “men,” proposed that when the judge decides a case,...

    (pp. 195-218)

    IN THE late 1960s, scholarly study of appellate courts in the United States turned from the decisions themselves and the written opinions handed down by judges and justices to their impact as public policy (Wasby, 1970; Dolbeare and Hammond, 1971; Milner, 1971). This shift was part of a more general reaction against earlier preoccupations with High Court opinions and presumptions about that legal rhetoric capturing the social meaning of law (Pound, 1959; Miller, 1968). Subsequently, “impact” became a major focus for social scientists (Baum, 1985; Johnson and Canon, 1984). This scholarship emphasized the limits of legal authority and associated courts...

    (pp. 219-232)

    AMERICANS ARE in a bind when assessing institutions like the Supreme Court. Although we know the Court is political and pay a great deal of attention to policy formation and outcomes, we are not supposed to evaluate the institution simply in terms of its policies. Rather, judicial policy is expected to be evaluated within a legal framework. On the one hand, we are constantly presented with judges as politicians, justices as liberals, conservatives, or moderates. From the president's choice to reports on the decision, politics is in the forefront. Yet the uniquely “judicial” is still significant. We’ve mentioned the reception...

    (pp. 233-234)
  14. NOTES
    (pp. 235-242)
    (pp. 243-264)
  16. INDEX
    (pp. 265-269)