Revista da EMERJ - V. 20 - N. 2 - Maio/Agosto - 2018

 R. EMERJ, Rio de Janeiro, v. 20, n. 2, p. 8 - 53, Maio/Agosto. 2018  40 which undercut the very legitimacy of the Republican Party, pre- dictably produced ferocious opposition among the party faithful. 158 During the Civil War and Reconstruction, as many more Americans rallied to the Republican banner and concluded that Dred Scott had been an egregious mistake, the Court’s standing probably did suffer, at least for a short period of time. 159 Conversely, while a majority of Americans opposed the Court’s flag burning decisions of 1989- 1990, 160 that opposition does not appear to have been intensely com- mitted, judging by the relative rapidity with which the flag-burning issue has died away. 161 Similarly, one reason that the Court’s school prayer decisions have not significantly impaired its stature, notwi- thstanding opposition from sixty-to-seventy percent of the American public, may be that critics are not intensely committed to the sort of watered-down, nondenominational prayer that was at issue in Engel v. Vitale and that likely would be reinstated were that decision ever to be overturned. 162 Intensity of opposition is partly a product of how efficacious the Court’s rulings are deemed likely to be. When the Supreme Court invalidated residential segregation ordinances in Buchanan v. Warley 163 in 1917, the white South received the news calmly, secure in the knowledge that residential segregation could be maintained wi- thout formal legal sanction. 164 Similarly, when the Court in Norris v. of southern whites opposed sending their children to school with any blacks, as compared with 61 percent in 1963). 158 See, e.g., Don E. Fehrenbacher, The Dred Scott Case: Its Significance in American Law and History 423-27 (1978); 2 Charles Warren, The Supreme Court in United States History 302-09 (1926?); Stanley I. Kutler, ed., The Dred Scott Deci- sion: Law or Politics? 46-50, 56-63 (1967) (reproducing Republican editorial and political criticism). 159 See, e.g., Walker Lewis, Without Fear or Favor: A Biography of Chief Justice Roger Brooke Taney 423 (1965) ( Dred Scott “impaired the prestige of the Court for years to come”); id. at 470-71 (noting ferocious Republican attacks on Chief Justice Taney after his death in 1864); Charles Evans Hughes, The Supreme Court of the United States, its Foundation, Methods and Achievements: An Interpretation 51 (1928) (“It was many years before the Court, even under new judges, was able to retrieve its reputation”); Edwin Corwin, The Dred Scott Decision, in Light of Contemporary Legal Doctrines, 17 Am. Hist. Rev. 52, 68-69 (1911) (concluding that the process of “recuperating its shattered reputation” was “so slow and laborious” that the Court did not “play anything like its due role of supervision” during the Civil War and Reconstruc- tion). But see Fehrenbacher, supra note __, at 579 (“[T]he notion that the Supreme Court, owing to its association with the Dred Scott decision, was in mortal danger during the Civil War, is largely fiction”); Stanley I. Kutler, Judicial Power and Reconstruction Politics 7-11 (1968) (distinguishing between criticism of Dred Scott and criticism of the Court as an institution, and denying that Dred Scott significantly impaired the Court’s national standing). 160 See supra note __. 161 See Robert Justin Goldstein, Flag Burning and Free Speech: The Case of Texas v. Johnson 226 (2000). 162 See Engel , 370 U.S. at 422. 163 245 U.S. 60 (1917). 164 Richmond News Leader , Nov. 6, 1917, pp. 4-5; Wesley G. Marshall, “The Dawn is Breaking: Buchanan v. Warley and the Fight Against Residential Segregation” 99 (M.A. thesis, University of Virginia 1985).