In a rare feat, the U.S. Supreme Court recently attracted more attention than two great milestones of spring - March Madness and baseball's opening day. "How could this have happened?" a reporter asked. "Public opinion and inevitability," I replied.
The surge of Americans' support for same-sex marriage, at a clip that has astonished both proponents and opponents of expanded access to an ancient institution, has brought an air of inevitability to this cause. The legal terms, Prop 8 and the Defense of Marriage Act, have won household recognition, a status reserved in recent years for cases such as Roe v. Wade, United States v. Nixon and Bush v. Gore.
There is, in this mix, curiosity about the impact, if any, of public opinion on the court's rulings. Those who believe it will be persuasive ask whether Chief Justice John Roberts would deny to his cousin, a lesbian, who attended oral arguments on the Prop 8 case, the right to marry her partner. They also note the movement of current and past officeholders, both Republicans and Democrats, who have embraced same-sex marriage.
Some GOP leaders, concerned that their party will pay a heavy price at the polls in future elections for being on the wrong side of the issue (and history), hope the court will uphold same-sex marriage and remove the issue from political calculations of voters. Will these expressions of public opinion, among others, influence the justices?
Judges, I believe, aim to ground their opinions in facts, laws and precedents, as they read and understand them. Yet, there often is, as Justice Oliver Wendell Holmes was fond of saying, room for "interstitial analysis," a gap in the law that requires some individual judgment. How to fill that gap?
Justice Benjamin Cardozo wrote eloquently about the exercise of "judicial judgment" - the application of a lifetime in the law, and a wealth of learning and experience - nearly a century ago in classics still assigned to law students in courses on jurisprudence.
Cardozo pointed out that judges are members of their community; they read newspapers and talk to their neighbors. They are not monks in a monastery.
It's difficult to know if, when, and to what degree the court of public opinion exerts an influence on judges, but across the years, various justices have noted the importance of public viewpoints.
From 1934 through 1936, the court rendered 12 decisions declaring New Deal measures unconstitutional. Starting in 1937, the court upheld every New Deal law brought before it, including some that were fundamentally similar to earlier statutes that it had struck down.
It is a little too simple to say, as some contemporaries had written, that the court had changed paths to protect itself from FDR's "court-packing plan," in what was characterized as "a switch in time that saved Nine." But, "in looking back" observed Justice Owen Roberts, whose switch, more than anything else, is said to have "saved the Nine," said in 1951 that "it is difficult to see how the court could have resisted the popular urge for uniform standards throughout the country - for what in effect was a unified economy." Yet, Chief Justice Charles Evans Hughes declared to his authorized biographer, "The president's proposal had not the slightest effect on our decision."
Still, no less an expert than Chief Justice William Rehnquist believed that public opinion played a role in the court's thinking in the landmark Steel Seizure Case. Rehnquist, who clerked for Justice Robert H. Jackson when the court held in 1952 that President Harry Truman's seizure of the steel mills was unconstitutional, observed in a memoir that the court likely had been influenced by the strong "tide of public opinion" that ran against Truman.
It's a good bet that Chief Justice Roberts, who clerked for Rehnquist, has read that memoir. We are likely years away from knowing whether, or to what extent, the court of public opinion exercised any influence on the high tribunal in its rulings on same-sex marriage. That knowledge won't be available until some of the current members of the court, upon retirement or death, open their papers for public viewing. Even then, it might be the case that justices disagree about the premise.
Adler is the Cecil D. Andrus Professor of Public Affairs at Boise State University, where he serves as director of the Andrus Center for Public Policy. He has lectured nationally and internationally on the Constitution, presidential power and the Bill of Rights.