The Hammer and the Chisel: The Tools of the Court and their Effect on Public Opinion
Blog Post | 111 KY. L. J. ONLINE | February 15, 2023
The Hammer and the Chisel: The Tools of the Court and their Effect on Public Opinion
By: Miles C. White, Staff Editor, Vol. 111
This article examines how the Supreme Court compositions are influenced, notably the Warren and Rehnquist Courts, by the judicial philosophy of the Chief Justice. These Chief Justices imprinted their judicial philosophy on the Court, not only by their voting patterns, but by their choices in how the decisions were written, who wrote them, and which tools the Court chose to use.[1] In this article, the Chief Justice will be viewed as the wielder of either the hammer or the chisel.
When the Court creates groundbreaking precedent[2], either by overruling or announcing a new rule, the Court has been viewed by the public as acting in a more activist capacity.[3] This hard charging approach will be referred to as the hammer.[4] But the other, less visible tool the Court can use to influence the law is the chisel. With the chisel, the Court can set the scope of a rule by distinguishing precedent, sometimes almost fully limiting the impact of an important case. [5] The chisel may require more time as it shapes the law, but can be just as powerful a tool as the hammer. This article explores if the Burger and Rehnquist Courts drew less public scrutiny than the Warren Court in part because of the Court’s choice between the use of the hammer or the chisel.
The Warren Court typified the hammer approach. Decisions like Brown v. Board of Education, Loving v. Virginia, and Miranda v. Arizona appeared all over the media, and were easily seen by the public for what they were: groundbreaking decisions.[6] The Warren Court drew much praise, but also public criticism, particularly as the 1960’s progressed and crime rates began to rise.[7] Public pushback helped propel Richard Nixon to the presidency, where he promised to change the makeup of the Supreme Court.[8] By 1972, the composition of the Court had flipped.[9]
Both the Burger Court and subsequent Rehnquist Court dropped the hammer in favor of the chisel.[10] Rather than overturn Miranda, the Court instead chiseled its holding, thereby limiting its initial effect.[11] For example, Harris v. New York, the Court held statements, obtained in violation of Miranda, could be used to impeach the defendant’s testimony where he voluntarily took the stand and denied commission of the offense.[12] A few years later, in Oregon v. Hass, the Court permitted use of an impeachment statement made by the defendant even after police failed to advise him of his right to counsel.[13] Near the end of Rehnquist’s tenure, the Court held in United States v. Patene that physical evidence obtained in violation of Miranda could still be used against a defendant.[14]
The Burger and Rehnquist Courts enjoyed high public approval ratings, while mostly employing the chisel.[15] The approach of the Burger and Rehnquist Courts molded and limited Miranda, without overruling it, into a much narrower rule than was initially set forth.[16] Though employing fewer groundbreaking decisions.[17], the Rehnquist and Burger Courts pushed the Court further to the right, advancing many conservative objectives.[18]
In 2019, Chief Justice Roberts claimed the court was not politicized, stressing the importance of stare decises.[19] The Court nonetheless issued Dobbs v. Jackson Women’s Health Organization only three short years later, taking a jackhammer to fifty years of abortion jurisprudence.[20] The Court’s public approval rating slid dramatically after Dobbs to 48%, the lowest since Gallup started measuring.[21] Upcoming decisions on affirmative action and voting rights will indicate if the Court used the hammer or the chisel. Depending on their choice, public opinion may slide even more, and that could lead to composition changes of the Supreme Court further down the road.
[1] Frank B. Cross & Stefanie Lindquist, Decisional Significance of the Chief Justice, 154 Univ. of Penn. Law Rev. 1665, 1707 (2006) (Cross and Lindquist note Rehnquist in particular had an effect on the court, but also note that he was unable to overturn the Warren Court’s precedent entirely: “The Chief Justice remains but one vote among nine, and Chief Justice Rehnquist had little effect driving the Court in an overall conservative direction or reversing the Warren Court’s liberal precedents. But our results suggest that Justice Rehnquist’s service as Chief Justice did have some effect on the Court’s product, both institutionally and in the content of its decisional output.”); see Steven R. Shapiro, The Role of the Chief Justice, ACLU (Sep. 12, 2005), https://www.aclu.org/news/speakeasy/role-chief-justice.
[2] A groundbreaking decision is one that generates large amounts of public attention. It is a decision that people outside the legal community would be familiar with, regardless of their support or outrage at the Court. Normally these decisions receive high amounts of press attention and greatly affect the Court’s future jurisprudence.
[3] See Rebecca E. Zietlow, The Judicial Restraint of the Warren Court (And Why it Matters), 69 Ohio St. L.J. 255, 259-60 (2008) (“In contrast to the Warren Court’s deference to congressional power, the Rehnquist Court was considerably more ‘activist’ in its approach to that coordinate body. The Rehnquist Court struck down a record thirty-three acts of Congress from 1995 to 2003, compared to only seventeen during the most activist period of the Warren Court. Moreover, while the Warren Court invalidated only federal statutes ‘of little or no significance,’ many of the federal statutes invalidated by the Rehnquist Court enjoyed strong bi-partisan support.”); see Kermit L. Hall, The Warren Court: Yesterday, Today, and Tomorrow, 28 Ind. L. Rev. 309, 324 (“In 1968, as the stewardship of Warren drew to a close, the Gallup Poll asked Americans to rate the Supreme Court. . .eight percent responded excellent; twenty-eight percent, good; thirty-two percent, fair; and twenty-one percent, poor.”).
[4] The hammer is capable of construction or destruction, depending on how it is used. If the Court builds precedent from the ground up, seemingly from nothing, this could be using the hammer as a constructive tool. Additionally, if the Court overrules a longstanding precedent, thereby destroying something the Court has built upon, this could also be the hammer.
[5] The chisel is more of a finesse tool. The chisel slowly shapes and molds an already existing object, so it does not construct, and it does not destroy. Instead, the chisel is used to make smaller changes to a piece as it takes shape (whether these are perfections or imperfections will depend on your own political leanings).
[6] See Kermit L. Hall, The Warren Court: Yesterday, Today, and Tomorrow, 28 Ind. L. Rev. 309, 323-24 (“The Court's activism was both grist for the growing media and a pressure on the Court itself. . . Press coverage of the Court soared in the wake of Brown [v. Board of Education], and it never came down. The Court became headline news; it was a subject for nightly reporting on recently created television evening news.”); see Calvin Massey, Public Opinion, Cultural Change, and Constitutional Adjudication, 61 Hastings L.J. 1437, 1444 (2010) (“[A] Gallup poll conducted in late June of 1968 revealed that seventy-three percent of Americans disapproved of marriage between whites and blacks. Only twenty percent approved of such marriages.”); see Roscoe C. Howard Jr. and Lisa A. Rich, A History of Miranda and Why It Remains Vital Today, 40 Val. U. L. Rev. 685, 695 (2006) (“Certainly, following the Miranda decision, many across the country believed that the Court had seriously undermined the ability of law enforcement to protect the public from criminals. Many in Congress believed that the Court had created a door through which scores of criminals could avoid prosecution through technicalities, free to prey on the lives of innocent citizens.”).
[7] See Wilbur R. Miller, The Social History of Crime and Punishment in America: An Encyclopedia 2350 (2012); see Kermit L. Hall, The Warren Court: Yesterday, Today, and Tomorrow, 28 Ind. L. Rev. 309, 324 (“While some of the Warren Court’s holdings did receive support, many more of its landmark rulings produced real hostility, disobedience, and even calls for the impeachment of some of the Justices, including Warren. . .To many Americans, the nation seemed to be unraveling, and the Court seemingly contributed to that process.”).
[8] Rebecca E. Zietlow, The Judicial Restraint of the Warren Court (And Why it Matters), 69 Ohio St. L.J. 255, 270 (2008) (“Richard Nixon made his opposition to the Warren Court a central feature of his successful run for president in 1968. In Congress, critics of the Court accused it of being pro-communist, undermining the states, and of being incompetent.”).
[9] Richard Nixon Presidential Library and Museum, Nixon and the Supreme Court, National Archives, (Sep. 22, 2021), https://www.nixonlibrary.gov/news/nixon-and-supreme-court (“The presidential nominations and subsequent confirmations of Harry A. Blackmun (1970), Lewis F. Powell, Jr. (1971), and William Rehnquist (1971) replacing liberal justices shifted the Court's ideological composition to the conservative, a position it maintains to this day.”).
[10] An exception to the Burger Court’s use of the chisel was the Court’s ruling of Roe v. Wade, which was clearly using the hammer to construct groundbreaking precedent. 410 U.S. 113 (1973) (overuled by Dobbs v. Jackson Women’s Health Org., 142 S.Ct. 2228 (2022) (Note that Rehnquist was one of two dissenters in the decision).
[11] Stephen F. Smith, The Rehnquist Court and Criminal Procedure, 73 U. Colo. L. Rev. 1337, 1357 (2002) (“Instead of overruling Warren Court precedents it deemed to be erroneous, the Rehnquist Court has distinguished, created exceptions to, and reinterpreted such precedents. Rarely is this approach analytically elegant and, much of the time, makes criminal procedure quite complicated, if not a morass.”).
[12] 401 U.S. 222, 225-26 (1974) (“Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment. The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances.”).
[13] 420 U.S. 714, 724 (1975) (Brennan, J., Dissenting).
[14] 542 U.S. 630, 642 (2004) (“Thus, unlike unreasonable searches under the Fourth Amendment or actual violations of the Due Process Clause or the Self–Incrimination Clause, there is, with respect to mere failures to warn, nothing to deter. There is therefore no reason to apply the ‘fruit of the poisonous tree’ doctrine.”); see Yale Kamisar, Miranda's Reprieve: How Rehnquist Spared the Landmark Confession Case, but Weakened Its Impact, 92 A. B. A. J. 48, 51 (2006) (“[W]hen Patene was decided, Miranda took a bullet to the body.”).
[15] See Jeffery M. Jones, Supreme Court Trust, Job Approval at Historical Lows, Gallup (Sep. 29, 2022), https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx (From 1973-1976, the Court enjoyed above a 60% approval rating. The late Rehnquist court reached approval ratings as high at 80% in 2000).
[16] See Charles D. Weisselberg, Mourning Miranda, 96 Cal. L. Rev. 1521 (2008) (“In the more than four decades since Miranda was decided, the Supreme Court has effectively encouraged police practices that have gutted Miranda’s safeguards, to the extent those safeguards ever truly existed. The best evidence now shows that, as a protective device, Miranda is largely dead.”); see Yale Kamisar, The Miranda Case Fifty Years Later, 97 Bos. U. L. Rev. 1293, 1295 (2017) (“In retrospect, I think it is fair to say that Miranda never recovered from Nixon’s four Supreme Court appointments.”).
[17] Smith, supra 11 at 1357 (“In fact, however, the number of overrulings by the Rehnquist Court has been rather low, according to one assessment, ‘infinitesimal[ly]’ so. Moreover, leading candidates for overruling, such as Miranda, survive. Also, on the occasions where the Rehnquist Court has overruled precedents in criminal procedure, it has been careful to demonstrate a valid ground for overruling under stare decisis doctrine. In terms of overrulings, then, the Rehnquist Court has been fairly restrained.”); see also Id. at 1360 (“Disfavored Warren Court doctrines were altered through case-by-case adjudication so that they no longer threatened what Rehnquist and his "law and order" colleagues regarded as ‘legitimate law enforcement.’ The results have been dramatic: much evidence that the Warren Court would have suppressed under Miranda or Mapp now comes into evidence again, and habeas petitions that might have been successful even a generation ago are now doomed to failure. Thanks to the Rehnquist Court, in short, things are again rosy for law enforcement.”).
[18] See Cornell W. Clayton & J. Mitchell Pickerill, The Politics of Criminal Justice: How the New Right Regime Shaped the Rehnquist Court’s Criminal Justice Jurisprudence, 94 Geo. L.J. 1385, 1423 (2006) (“Just as the Warren Court advanced the liberal policies of the New Deal political coalition, the Burger and Rehnquist Courts were faithful allies of the New Right regime.”).
[19] Andrew Chung, U.S. Supreme Court Not Politicized says Chief Justice Roberts, Reuters (Sep. 24, 2019), https://www.reuters.com/article/us-usa-court-chiefjustice/u-s-supreme-court-not-politicized-says-chief-justice-roberts-idUSKBN1WA08F.
[20] 142 S.Ct. 2228, 2242 (2022) (“We hold that Roe and Casey must be overruled.”); see Adam Liptak, In 6-to-3 Ruling, Supreme Court Ends Nearly 50 Years of Abortion Rights, NY Times (Nov. 2, 2022), https://www.nytimes.com/2022/06/24/us/roe-wade-overturned-supreme-court.html#:~:text=WASHINGTON%20%E2%80%94%20The%20Supreme%20Court%20on,about%20half%20of%20the%20states.
[21] Jeffery M. Jones, Supreme Court Trust, Job Approval at Historical Lows, Gallup (Sep. 29, 2022), https://news.gallup.com/poll/402044/supreme-court-trust-job-approval-historical-lows.aspx.