A few weeks ago, the people of the United Kingdom celebrated Queen Elizabeth’s Diamond Jubilee–a momentous occasion that marked the sovereign’s 60 years on the throne. For anglophiles like me, the event was Christmas in June. It was a time to behold and revel in the best pomp and circumstance that Britain has to offer.
Unfortunately for me, I cannot revel long in anything British without an Irish friend of mine raining down on my parade. Most recently, however, my fenian friend decided to take a brief hiatus from attacking my fascination with British monarchy and, instead, demanded to know why the justices of the U.S. Supreme Court so greatly pique my interest. After giving the question some careful consideration, I discovered that my fascinations with American justices and British monarchs share an inextricable connection.
The British Crown and the American Constitution may seem diametrically opposed; indeed, the latter was drafted to escape the tyranny of the former. In actuality, though, they share an important commonality: both are symbols of nationhood.
The connection is not an original one. The great constitutional scholar Alexander Bickel noted as much. In America, he wrote, “the symbol of nationhood, of continuity, of unity and of common purpose, is, of course, the Constitution.” The symbol of the Crown, he continued, provides a similar utility for Britain. And the Crown is made concrete in the person of the queen.
But who in the American system of government personifies the symbol of the Constitution? Bickel has an answer:
“The President in our system serves the function somewhat, but only very marginally, because the personification of unity must be above the political battle, and no President can fulfill his office while remaining above the battle . . . so it has in large part been left to the Supreme Court to concretize the symbol of the Constitution.”
Bickel made the comment in passing, but it merits further attention.
The queen and the justices of the Court hold much in common. For one, both justices and monarchs frequently use the royal “we.” Consider this line taken from Queen Elizabeth I’s famous speech at Tilbury:
“We have been persuaded by some that are careful of our safety, to take heed how we commit ourselves to armed multitudes.”
The use of the collective pronoun stands out immediately. Monarchs use the majestic “we” because they see themselves as speaking not only for their own person, but for the entire nation.
The Supreme Court tends to use the pronoun “we” similarly. Consider this line from Hamdi v. Rumsfeld:
“We have long since made clear that a state of war is not a blank check for the President when it comes to the rights of the Nation’s citizens . . . It is during our most challenging and uncertain moments that our Nation’s commitment to due process is most severely tested; and it is in those times that we must preserve our commitment at home to the principles for which we fight abroad.”
Who is this “we” to which Justice O’Connor refers? Usage of the collective pronoun serves differing purposes depending on context. For example, the beginning of the excerpt begins with, “We have long since made clear.” Here, “We” refers to the justices of the Court. But to whom is O’Connor referring when she says, “we must preserve our commitment at home to the principles for which we fight abroad”? In this instance she is clearly speaking for, and on behalf of, the American people.
Although the other political branches often use the collective “we” when trying to give voice to the popular will, the “we” of the Supreme Court trumps all others. The Constitution begins with “We the people,” and as the final expositors of the constitutional text, the justices (like monarchs) are in the unique position of speaking for the entire nation with finality. It is by invoking the mystic sovereignty of 300 million that the Court assigns itself the power of judicial review.
Additionally, both the justices and the British monarch are symbols of continuity. The Diamond Jubilee is, at its core, a celebration of the queen’s 60-year reign. But why is this something worthy of celebration? It is because through the person of the queen, the British people are connected to each other and to their past.
Throughout her long reign, the queen has seen the election of twelve prime ministers, including such notable persons as Winston Churchill, Margaret Thatcher, and Tony Blair. Politicians come and go, but the queen stays. She has witnessed the fury of Hitler, the tragedy of the Holocaust, the mushroom clouds above Hiroshima and Nagasaki, the first human landing on the moon, the fall of the Berlin Wall, the advent of the Internet, the collapse of the Word Trade Center, and the onslaught of a global recession. Against the backdrop of such profound social, political, and economic change, she is the one stone that endures. Through her person, the British people are connected to each of these historical events.
The Supreme Court serves a similar function in American society. Alexander Bickel observed this quality of the Court as well:
“The Court is seen as a continuum . . . it is never, like other institutions, renewed at a single stroke . . . it is the total impression of continuity personified . . . continuity is a chief concern of the Court, as it is the main reason for the Court’s place in the hearts of its country men.”
Like the queen, Supreme Court justices are the only true constants among the shifting winds of American politics. In the 235-year history of this nation, there have been 44 presidents, but only 17 chief justices (enough to count on our hands and toes).
The power of a Supreme Court justice, of course, is greater than that of the queen. Yet as the embodiment of the constitutional monarchy, the queen must still officially consent to the workings of government. All prime ministers, for example, officially ascended to office only upon the queen’s invitation. Moreover, the queen must ultimately give her consent to all laws passed by Parliament. These two roles, though, are largely ceremonial. In actuality, the monarch would never dream of defying the popular will in any of these instances. But for Supreme Court justices, the power to review legislation is not ceremonial. As Alexis de Tocqueville once noted, “There is hardly a political question in the United States which does not sooner or later turn into a judicial one.”
At the same time, the chief justice has traditionally administered the oath of office for the president. The spectacle seems very similar to the queen’s ceremonial role in inviting the prime minister to take office. The fact that the presence of the queen and the chief justice (even if it’s only ceremonial) lends legitimacy to the election of a prime minister or president speaks volumes about the powers of each.
When Chief Justice Roberts incorrectly administered the oath of office to Barack Obama, the White House had him re-administer the oath a few days later. Why would they do this if the spectacle was just of ceremonial importance? It is because even ceremonial roles mask power. The legitimacy of the Obama presidency remained in doubt, in some meaningful way, until the chief justice properly administered the oath of office.
My purpose in this article has not been to argue that the justices of the Supreme Court are in effect the kings and queens of America, but only to highlight that many of the functional purposes of monarchy are also served by the justices of the Supreme Court. I once heard it said that “Justice” is the closest thing America has to a title of nobility. The foregoing analysis reveals that there is a lot more truth to the proposition than one might first think. In this country, the scepter of justice and the rod of mercy and equity are held in the hands of the Supreme Court justice. Dawning black robes, serving life terms, and ensconced in a palace of marble, they are the closest thing America has to royalty.
Photo Credit: Brooks Kraft
