Judith Resnik and Dennis E. Curtis, Yale Law School, have posted
Inventing Democratic Courts: A New and Iconic Supreme Court, which appeared in the
Journal of Supreme Court History 38 (2013): 207. Here is the abstract:
The Supreme Court’s building was designed to look old – as if it had been in place since the country’s founding, rather than opening in 1935. The work of judges – deciding disputes – also appears as if it were a continuous practice from ancient times. But the point of this Lecture, which builds on our book, Representing Justice: Invention, Controversy and Rights in City-States and Democratic Courtrooms, is to show that important aspects of adjudication which today seem intrinsic are, like this building, artifacts of the twentieth century.
Simply put, in ancient times, judges were loyal servants of the state; audience members were passive spectators watching rituals of power, and only certain persons were eligible to participate as disputants, witnesses, or decision makers. In contrast, today, judges are independent actors in complex and critical relationships with the government and the public. Moreover, everyone – women and men of all colors – are entitled to be in every seat in this courtroom, including the bench.
Democratic norms changed adjudication by recognizing all persons as juridical actors who could sue and be sued, and by requiring judges to welcome them all as equally entitled to dignified treatment. Likewise, disputants must treat each other as equals, as reflected in practices, such as the contemporary obligations to exchange information (discovery and disclosure) to facilitate participatory parity. The constitutional mandate that courts operate openly demonstrates to the public the capacity to have civil and disciplined exchanges despite deep disagreements. Open courts also endow the audience with the ability to learn and the authority of critique. Court judgments at both trial and appellate levels apply and develop norms and regularly spark debate, sometimes prompting new lawmaking by elected officials.
The map of the development of democratic adjudicatory practices could be drawn through discussing many of the Supreme Court’s decisions – insisting on the independence of judges, the equality of all persons, public access to courts, and fair decision making. We add to that analysis by inviting consideration of how the designers of the Supreme Court’s building – and others before them – used imagery to inculcate norms about what judges should do. By decoding what carvings adorn the courtroom and by placing the history of this building in the context of the changing contours of both constitutional law and the federal court system, much can be learned about the political and social transformations that produced – indeed invented – courts as we know them today.
Those innovations are what make the Court’s building iconic. When the courthouse opened in 1935, some critics complained that its Grecian portals were out of sync with twentieth-century modernism. We suggest instead that the building be read as Janus-faced. The courthouse architecture and imagery looked back to enlist the authority of lawmakers long gone. Yet, the building’s interior also marked the Court’s new legal authority to control its own docket, the Chief Justice’s ascendancy over the federal judicial system, and the special role that for media would come to play in shaping understandings of the judiciary. The grand entry with its imposing façade forecast the Court’s role thereafter – as a national icon – of the country’s commitment to “equal justice under law,” words inscribed above the doorway in 1935, but whose meaning derives from the Supreme Court’s work in the decades that have followed.
