Vol. 10 No. 2 (February 2000) pp. 172-176.

THE PRIESTLY TRIBE: THE SUPREME COURT'S IMAGE IN THE AMERICAN MIND
by Barbara A. Perry. Westport, Connecticut: Praeger, 1999. 184 pp. Cloth $59.95. Paper $17.95.

Reviewed by Cornell W. Clayton, Department of Political Science, Washington State University.

I recently asked students in an American government class which institution they trusted most: the president, Congress, or the Supreme Court. Not surprisingly, two-thirds of the hands shot up in support of the Court. When I asked why, most students pointed to problems with the other twobranches: Presidents and members of Congress are untrustworthy, petty, corrupt, arrogant and out of touch. Few, however, could tell me what inspired their confidence in the Court. Indeed, another show of hands indicated that only about one-in-ten could even identify the Chief Justice, and only a handful of students in a class of more than two hundred felt they
could name three or more of the justices.

In contrast to the cynicism that engulfs most American political institutions, the Supreme Court remains a powerful force in the American mind, despite the fact that the public knows very little about the institution. The image of the Court as a hollowed, "priestly tribe" has allowed it to weather storms of controversy and buttressed its ability to effect social change. Barbara Perry's examines the nature of this image in this short, yet remarkably wide-ranging, book.

Perry begins in chapter one with the controversy swirling around the Court during its bitter struggle with Franklin Roosevelt in the 1930s. Enemies of the Court portrayed it as a tired institution built around nine old men, out of touch with the country and tainted by politics. By contrast, the Court portrayed itself as an impartial arbiter of the law and defender of the nation's holy script, the Constitution. Fortuitously for the Court, the crisis coincided with its 1935 move into a new home in the "marble temple." Designed by architect Cass Gilbert along the lines of a classical Roman temple, the building's facade and inner chambers offer a stunning visual
impact, full of art and symbolism that augment the Court's image as a hallowed institution. The Court's association with the near-religious reverence Americans holds for the Constitution was now materialized in the form of a majestic temple of law. As editorial and public opinion turned against FDR's Court-packing plan, Congress eventually saw Roosevelt's plan as an attack the nation's revered constitutional structure rather than a common political enemy. Bloodied but unbowed, the Court thus prevailed in the struggle with its exalted and independent image in tact. But the struggle "revealed a tension inherent in the American system, which inevitably observes its hallowed judges descending into the political fray through their exercise of judicial review, but which chooses to perpetuate an image of the
Supreme Court as above politics" (p. 20).

In chapter two, Perry describes the

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day-to-day operation of the Court's offices and staff that are responsible for presenting the Court to the public: the Public Information Office, the Office of the Administrative Assistant to the Chief Justice, the Clerk of the Court, the Supreme Court Historical Society and the Curator's Office. The Historical Society, for instance, sponsors historical research on the Court, collects artifacts and antiques, and operates the Supreme Court Gift Shop. The Administrative Assistant's office is responsible for hiring and training the more than 300 employees and staff of the Court and organizes public occasions, such as investitures of new justices or ceremonies commemorating the passing of former justices. By far the most important office involved in the Court's public relations activities is the Public
Information Office. Created in 1935, the office is responsible for providing information and Court access to the press and public. During his tenure as Chief Justice, Warren Burger took several steps to improve media-Court relations by augmenting the office's operation, including appointing Toni House, a former reporter, to head the office, expanding the physical space and facilities for reporters inside the Court, and offering more room inside the courtroom for credentialed journalists.

Chapter three examines the image that the justices present of themselves through written opinions, oral arguments, and in their public speeches and published articles. Although occasional episodes of personal hostility have made the nine "high priests" look more like "nine scorpions," such occasions are rare. The norm is for justices to present themselves as highly collegial, impartial, hardworking, and a body that takes seriously its role as protector of the constitutional system. Perry draws on a wealth of anecdotal evidence to make her point. She recounts important moments in the oral arguments of cases such as ROE v. WADE (1973) and WISCONSIN v. YODER (1972). She describes some of the typical speeches and articles given by modern justices, whom, she says, could be given the generic title "The Court
is Special" (p. 70). She also describes some of the more controversial ones, such as a 1957 magazine article by future chief justice William Rehnquist, who "vented his political spleen," accusing fellow clerks of harboring "liberal" biases and "extreme solicitude for the claims of Communists and other criminal defendants..." (p. 72). Most of the chapter, however, is devoted to the image that emerges from written opinions: the Court's opinion in COOPER v. AARON (1958) and William O. Douglas's opinion in GRISWOLD v. CONNECTICUT (1965) illustrate how the Court presents itself as an impartial guardian of the Constitution even when it is rendering controversial interpretations of that document. Tom Clark's majority opinion in MAPP v. OHIO (1961) and Hugo Black's opinion in GIDEON v. WAINWRIGHT (1963) illustrate how the Court presents itself as constrained by precedent even as it reverses previous decisions. Justice Antonin Scalia's sharp dissents in LEE v. WEISMAN (1992) and PLANNED PARENTHOOD v. CASEY (1992) are examples of judicial wit and sarcasm when issues of particular agitation split the Court.

Chapter four turns to the role of the media. The general "awe" and deference that the press used to accord the Court (with a few notable exceptions such as publication of Pearson and Allen's THE NINE OLD MEN (1937) during the New Deal crisis), is contrasted with media coverage in the post-Watergate era, which tends to be far less reverential in tone. Woodward and Armstrong's THE BRETHREN (1979) and Lazarus' CLOSED CHAMBERS (1998) are

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extreme examples of contemporary media reliance on unnamed sources and a style of yellow journalism. But even mainstream media can tend toward sensationalism, focusing too much on intra-Court conflict, the horse-race aspects of voting blocks, and Court trivia. The media's coverage of recent confirmation hearings, Clarence Thomas' hearing in particular, may also bring lasting damage to the Court's image. Much of the discussion in this chapter, however, focuses on the predilections and styles of the reporters who currently cover the Court for major newspapers and television. Although Perry finds that media coverage of the Court "runs the gamut from mean-spirited commentaries ... to scrupulously balanced reports," she concludes that, on the whole, the Court has "thus far escaped the brunt of modern media
sensationalism." This is the result of "the usually irreproachable personal and professional conduct of its members, and the traditions of the institution that have successfully limited overexposure or unbecoming portrayals in the press," including the Court's continued refusal to permit cameras, recorders or televisions into its courtroom (p. 117).

In chapter five Perry examines public opinion and the Court. She contends that while there may be a growing "popularization" of the judiciary, public opinion data continues to "show a troubling lack of attention to, and knowledge of, details regarding the Supreme Court" (p. 123). Nevertheless, survey data also show that, although confidence ratings for the Court have dropped in recent years, the Court still continues to fare much better than other American institutions such as Congress, the presidency, business corporations or even religious organizations (pp. 126-27). The remainder of the chapter is devoted to anecdotes from Perry's year serving as a Supreme Court fellow, detailing the types of questions and public perceptions that emerged when she delivered lectures and briefings to foreign dignitaries as well as academic, professional, and tourist groups.

In a concluding chapter Perry offers her observations about the relationship between the Court's public image, its legitimacy, and its openness to the public and the media. When debates about openness emerged in the early 1990s as a result of the controversy surrounding the Library of Congress' decision to open Justice Thurgood Marshall's papers and the public release of tapes made by Peter Irons of oral arguments, Perry says she passionately believed, as did Justice William Brennan, that the Court should be more open. Now, after several years of contemplating this issue and spending a year as a judicial fellow, she has reached the opposite conclusion. Siding with Chief Justice William Rehnquist, Perry is concerned about the impact that too much openness will have on the Court's authority
and legitimacy. For Perry, this includes drawing the line against televising oral arguments. In short, she believes that the mystique of the Court and the "cult of the robe" are at the center of the Court's power and its role in government. Since our system of government requires that a respected institution authoritatively interpret and defend the Constitution, the values of openness and public access are outweighed by the need to maintain the Court's legitimacy. The Supreme Court's success in maintaining respect is an "almost magical" process. "To spoil the magic by exposing it to excess 'daylight' might rob the nation and indeed the world of a stable and enduring emblem of the rule of law" (p. 155).

This book is well written and raises a thoughtful argument about symbolism and

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the role of the Court in American government. Its contribution to the scholarly literature is however offset by a few important weaknesses. First, much of the book describes already well-known events (i.e. the Court-packing controversy, the oral arguments in ROE v. WADE, etc.) or details the day-to-day activities of particular offices. Students who are unfamiliar with theCourt and its institutions will benefit from this information, but Court scholars are unlikely to learn much new here. Second, Perry's effort to write a short, accessible book comes at a cost to the book's analytical rigor. The evidence is almost entirely anecdotal and at times the selection of material seems arbitrary. For example, four pages are devoted to describing items for sale in the Supreme Court gift shop, including a detailed description of a children's book entitled MARSHALL, THE COURTHOUSE MOUSE (Perry and Perry 1998) (pp. 28-31). There are also some glaring omissions. Why, for example, is the impact of public academics like Edward Corwin, Herbert Wechsler, Robert Bork, or Laurence Tribe not examined? Compounding this problem is the lack of sustained historical analysis. With the exception of discussion of the Court-packing controversy in chapter one, the book is devoted almost entirely to the post-Warren Court era, and many of the anecdotes and stories come from a single year, 1994-95 when the author served as a judicial fellow. Finally, Perry's central argument, that Court legitimacy rests upon a mystique that would be jeopardized by more openness and public access, an argument that this reviewer has sympathy for, is made largely through implication and assertion rather than persuasion and systematic marshaling of evidence. Thus, those wanting an analytically rigorous examination of the Court's relationship to the public opinion, or a more theoretically grounded examination of symbolic power and role of the Court in democracy, will probably be disappointed.

Despite these weaknesses, this book is well worth reading. For those already familiar with the Court and who teach about it, this book offers a trove of entertaining stories and anecdotes. I have already incorporated into my own lectures a story about an attorney in VERNONIA SCHOOL DISTRICT v. ACTON (1995), a case involving random urinalysis testing for high school athletes. It seems that during oral arguments Justice Stephen Breyer suggested that asking for a urine sample was not really an intrusion on privacy because urination is a fact of life. The attorney for James Acton had to concede that indeed everybody urinates. Then, visibly shaken by the tough questioning, he also conceded, "In fact, I might do so here!" A line that Perry says brought the house down (p. 103).

For students and others who are not familiar with the Court, Perry's accessible style and prose makes this book a perfect supplemental text for undergraduate courses, especially ones focusing on the Court and the media or public opinion. Perry raises several important questions about symbolism and the role of the Court, and she does so in an informative, subtle, and entertaining way.

REFERENCES:

Barnes, Peter W. and Cheryl Shaw Barnes. MARSHALL, THE COURTHOUSE MOUSE: A
TAIL OF THE SUPREME COURT. Arlington, VA: VSP Books.

Lazarus, Edward. 1998. CLOSED CHAMBERS: THE FIRST EYEWITNESS ACCOUNT OF THE
EPIC STRUGGLES WITHIN THE SUPREME COURT. New York: Times Books.
Pearson, Drew and Robert Allen. 1937. THE NINE OLD MEN. Garden City, N.Y.:
Doubleday.

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Woodward, Bob and Scott Armstrong. 1979. THE BRETHREN: INSIDE THE SUPREME
COURT. New York: Simon and Schuster.

CASE REFERECES:

COOPER v. AARON, 358 U.S. 1 (1958).

GIDEON v. WAINWRIGHT, 372 U.S. 335 (1963).

GRISWOLD v. CONNECTICUT, 381 U.S. 479 (1965).

LEE v. WEISMAN, 505 U.S. 577 (1992).

MAPP v. OHIO, 367 U.S. 643 (1961).

PLANNED PARENTHOOD OF SOUTHEASTERN PENNSYLVANIA v. CASEY, 505 U.S. 833
(1992).

ROE v. WADE, 410 U.S. 113 (1973).

VERNONIA SCHOOL DISTRICT 47J v. ACTON, 515 U.S. 646 (1995).

WISCONSIN v. YODER, 406 U.S. 205 (1972).


Copyright 2000 by the author