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A Good Ol' Boy Sitting on the Federal Bench

March 29, 1987|Lincoln Caplan | Lincoln Caplan, an attorney, writes frequently about legal matters for the New Yorker.

WASHINGTON — William Brevard Hand is a model of a maverick judge. Few people outside the South ever heard of him until he drew recent attention for banning some books from use in Alabama public schools because they teach "a godless religion" called "secular humanism."

But since he was appointed to the federal bench by Richard M. Nixon in 1971, Hand has made decisions that deserve scrutiny. In favor of school prayer, against affirmative action, scornful of suits to gain voting rights for blacks, against busing as a remedy for segregated schools--his accumulated judgments fall in line with major items on the Reagan agenda. But his promotion of the results he approved in social policy and disregard for the kind of restraint practiced by traditional conservative judges--let alone his questionable methods of judging--also mark him as an activist with scant respect for orthodox views about the law.

In a 1974 opinion against affirmative action, Hand scolded civil-rights lawyers for "stirring up of controversy" in bringing such suits. Since 1978, he has delayed the inevitable in voting-rights cases centered on Alabama counties where half the population old enough to vote is black and no black has ever been elected to countywide office. To Hand, blacks have failed to be elected not because of gerrymandering or block voting by whites for whites, but simply because of "black apathy." An appeals court strongly disagreed and ordered him to establish new voting districts that would give blacks a chance to elect a black representative. In a later decision, Hand named the districts required by the appeals court as Sowetos and declared that he would enforce the higher court's ruling only under protest.

After a landmark decision by the Supreme Court in 1971 that Hand's hometown of Mobile had to desegregate its public schools in order to comply with the Constitution, the judge found his own reasons to avoid enforcing the ruling. Under his supervision, segregation in Mobile schools grew even worse after the Supreme Court order. Hand eventually followed a fox-in-the-chicken-coop tactic: To oversee Mobile's desegregation he chose the academic Lino Graglia, whose book, "Disaster by Decree: The Supreme Court Decisions on Race and the Schools," argued that the Mobile landmark and every other decision calling for school desegregation were wrong as law and unnecessary as policy.

In 1983, Judge Hand independently set aside generations of Supreme Court precedent and ruled that he wouldn't consider the legality of an Alabama law permitting spoken prayer in the public schools, on the theory that the First Amendment--barring government from the establishment of religion--doesn't apply to the states. Even some staunch conservatives in the Reagan Administration, such as then-Solicitor General Rex Lee, joined outside observers in referring to this decision as "lawlessness." Paul Bator, a respected conservative scholar who was then deputy solicitor general and is now a professor at the University of Chicago Law School, also criticized the ruling: "The principle that district court judges must obey the Supreme Court is one that every lawyer ought to be clear on."

When the Supreme Court struck down the state statute that Hand refused to consider, it reemphasized that the First Amendment's prohibition against establishment of religion applies to laws made by the states, and Justice John Paul Stevens castigated Hand for his "remarkable conclusion" to the contrary. The court ordered Hand to enjoin the state prayer law. He did that, but didn't stop there. Still looking for victory, he turned the old suit into a new one, created the "religion" of secular humanism, and, according to the American Civil Liberties Union, became the first federal judge ever to ban books from public schools. (A federal appeals court on Friday agreed to hear the case and temporarily set Hand's ruling aside.)

Hand describes himself as "a voice crying in the wilderness," but in Washington, a cadre backed by President Reagan and led by Atty. Gen. Edwin Meese III and Assistant Atty. Gen. William Bradford Reynolds has lately been promoting the same radical legal ideas and the same social agenda. Judging from the Administration's support for his rulings and its approval of his appointment as one of 17 judges to join a new Committee on the Bicentennial of the Constitution, Hand is a Reagan favorite, usually mislabeled a conservative.

Conservatives say they believe in a limited role for federal judges: Judges should adhere to conservative practices, like following precedent and settling only the legal issues the court must deal with to resolve a case. Unlike true conservatives, New Right lawyers contend that judges should be activist, like Hand, to undo what they view as the mistakes of the past generation's liberal judges on agenda items, and more.

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