When Justices Speak

When Justices Speak is an eye-opening, first-of-its-kind analysis of how Supreme Court justices use public speeches to defend their authority in an increasingly divided society.

Each year people pore over every word in the opinions of the Supreme Court justices to discern their thoughts and anticipate future developments. Contrary to the assumption that the justices operate largely out of public view, they frequently give many speeches to a wide range of audiences on topics that bear directly on their work. Despite this, relatively little attention is paid to what the justices say in these speeches. Robert A. Whitaker set out to learn what the justices say and what their speeches tell us about institutional legitimacy.

Reviewing nearly 700 speeches by the justices of the Warren Court (1953–1969), Whitaker finds the justices’ speeches are far more than “sleepy civics lessons,” a perception the justices themselves help cultivate. Instead, these speeches reveal four primary themes: advocating future policy and signaling outside actors to prepare for implementation in advance of a major ruling by the Court; defending the Court’s rulings on the basis of projecting favorable images of democracy abroad; defending the Court’s rulings against broader attacks on judicial authority, such as court-curbing legislation; and last, articulating idealized visions of democracy and future politics. Whitaker’s study is more than just a look at the Court of yesteryear. In the final chapter he turns to look at speeches from two years of the Roberts Court, another court that has made controversial decisions and used public speeches to justify them—demonstrating that these speeches share certain traits across time and political division.

Contrary to the view that judicial speech departs from judicial norms or threatens the Court’s reputation of neutrality and independence, and thus its legitimacy, judicial speech often functions as a bulwark of judicial authority. Whitaker shows that the Supreme Court’s enduring desire to protect its outsized influence on American society has led the justices frequently to use charisma and rhetoric to reinforce their authority before an often-skeptical public.

Timely and provocative, When Justices Speak offers scholars and students of judicial politics, constitutional law, American political development, and political communication a revealing new way to understand how the nation’s highest court cultivates and defends its power.