Date of this Version
Did the 2005 uproar over Terri Schiavo’s end-of-life case mark a peak in the recent surge of attacks on the independence of America’s courts? When the case generated threats to impeach and even murder the presiding judge, and Congress passed a bill seeking to manipulate the case, broad public disapproval helped end the political crisis.1 The President backpedaled—“I believe in an independent judiciary. I believe in checks and balances”2—and dispatched the Vice President and Attorney General to add their reassurances. Just a few months later, Supreme Court nomination hearings offered little hint of the rising tide of fury that courts and judges have been facing during the past decade. Although American history shows that hostility to the courts sometimes rises and falls in cycles, it’s unlikely that the current round will subside anytime soon. A generation of opportunistic politicians and special interest groups have nurtured a litany of grievances against the judiciary, aggressively stereotyping judges as enemies of mainstream values.3 2005 marked the national coming of age for an outrage industry that stokes anger over controversial decisions and paints judges as “tyrants in black robes” in order to raise money, turn out voters, intimidate and even impeach judges, and roll back the power of the courts to protect people’s rights. The Schiavo fight was just one battle in a war that fits perfectly into the polarized politics and 24-hour media circus that is early 21stcentury America. Court-bashing won’t be fading away any time soon. How can supporters reclaim the debate and shore up public support for the independence of the courts in the face of this onslaught? This article reviews the results of a major public opinion research project exploring the attitudes of Americans toward the growing tide of attacks on the courts. It suggests that Americans of all backgrounds are ready to reject the sloganeering and stand up for strong courts—if their defenders embrace both independence and accountability, and link the work of the courts to the values Americans care about most. It outlines a simple and powerful communications framework for defending courts from political interference, putting courtbashers on the defensive, and exposing radical attacks for what they are. Above all, the research suggests that for America’s courts, the road to independence goes through accountability. Accountability is not the only principle of an effective communications framework. But court-bashers have been abusing the definition of accountability for years, exploiting the reticence of judges and bar leaders who worry that judicial accountability is too complicated, weak, or unique a concept to defend in a public debate. If courts and those who care about them can learn to make accountability their friend and define judicial accountability properly before the other side corrupts it, they’ll go a long way toward turning back the onslaught of attacks on the independence and impartiality of our courts. The Justice at Stake Campaign4 commissioned the opinion research firm of Belden, Russonello & Stewart to design and conduct a two-phase research project, including focus groups and a national survey.5 Survey respondents were queried about their confidence in major institutions (including the courts), their knowledge of how courts work, and the values they want their courts to uphold. After an initial test of their willingness to support stronger congressional checks on federal courts, they were asked to consider a variety of mechanisms to implement such checks, including jurisdiction-stripping legislation and impeachment. They were asked to consider whether the power of the courts should be curbed with respect to high-profile issues like gay marriage and the public display of the Ten Commandments in the courtroom. They were asked to react to common arguments made for and against curbing the power of the courts. At the end of the survey, after hearing the arguments on both sides, they were asked once again if they generally supported more congressional checks. (Previous opinion research suggests that the findings are equally valid for controversies involving state courts, and that indeed Americans do not often distinguish between the two). The survey found that the American public continues to hold favorable but soft opinions about the courts and that the public’s knowledge of the courts remains rudimentary. As an institution, the courts enjoy more of the public’s confidence than does Congress. The Supreme Court receives the strongest vote of confidence (30% “great deal”; 46% “some” confidence) followed by federal courts (23%; 51%) and state courts (20%; 51%). Even individual judges (20%; 55%) garner more public confidence than Congress (12%; 52%).