Inventing Democratic Courts: A New and Iconic Supreme Court JUDITH RESNIK AND DENNIS CURTIS* The Supreme Court’s building was designed to look old—as if it had been in place since the country’s founding, ratherthan opening in 1935. The work of judges— deciding disputes—also appears as ifit were a continuous practice from ancient times. But the point of this lecture and of our book, Representing Justice: Invention, Contro versy and Rights in City-States and Democratic Courtrooms,1 is to show that important aspects of adjudication that today seem intrinsic are, like this building, artifacts of the twentieth century. Simply put, in ancient times,judges were loyal servants ofthe state; audience members were passive spectators watching rituals of power, and only certain persons were eligible to participate as disputants, wit nesses, or decision makers. In contrast, judges today 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 the courtroom, including the bench. These are the changes that prompted our choice of the phrase “Inventing Democratic Courts” for this essay’s title. We use the word “democratic” not in the narrow sense of majoritarian political processes; democracy is more than voting. Indeed, unlike some constitutional scholars who identify unelected judges as a problem in need of special explanation in democratic orders, we argue that adjudication can itself be a democratic practice—that how this Court has come to do its work reflects democratic ideals about interactions among disputants and between government and citizenry. 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 obliga tions to exchange information (discovery and disclosure) to facilitate participatory parity.2 The constitutional mandate that courts operate openly demonstrates to the public the capacity 208 JOURNAL OF SUPREME COURT HISTORY to have civil and disciplined exchanges despite deep disagreements. Open courts also endow the audience both with the ability to learn and the authority of critique. Court judgments at 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 demo cratic adjudicatory practices could be drawn through discussing many of the Court’s decisions—insisting on the independence of judges, the equality of all persons, public access to courts, and fair decision making.3 We add to that analysis by inviting consider ation of how the designers of this Court’s building—and others before them—used imagery to inculcate norms about whatjudges 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 building 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 Court’s architecture and imagery looked back to enlist the authority of law makers 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 as the chiefexecutive ofthe federal judicial system, and the special role the media would come to play in shaping understandings of the judiciary. The grand entry with its imposing facade forecast the Court’s role thereafter—as a national icon—of the coun try’s commitment to “equaljustice under law,” words inscribed above the doorway in 1935 but whose meaning derives from the Court’s work in the decades that have followed. Decoding the Walls The lawyers and the public who enter the Courtroom, like readers of the Court’s opinions, focus on the words of the jurists as they pose questions...