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Justice from Lobbies and Chambers : Beyond the Court, Justices Speak Out on Law and Nation

October 04, 1987|Lincoln Caplan | Lincoln Caplan, who writes for the New Yorker, is author of the coming "The Tenth Justice: The Solicitor General and the Rule of Law" (Knopf).

WASHINGTON — The recent run of unusual public comments by U.S. Supreme Court justices seems to have much in common with the bitter debate about the Supreme Court nomination of Robert H. Bork: Both threaten the court's reputation, among some observers, as a bastion of principle that reigns above politics. But since the start of the republic, the great American debates have regularly been about the proper role of the court and how it should read the Constitution; the justices' remarks as well as the Bork hearings are steps toward realism about U.S. law and how those on the nation's highest court can contribute to discussions about it.

In 1985, Justices William J. Brennan Jr. and John Paul Stevens drew headlines when they engaged in an almost unprecedented public exchange with a senior official in the executive branch. They offered scholarly rebuttals to Atty. Gen. Edwin Meese III's "Jurisprudence of Original Intention," which was eventually criticized by the court's right flank as well--Justice Byron R. White went out of his way in an opinion to describe the notion as "simplistic."

The only modern precedent for the justices' comments came during the crisis caused by Franklin D. Roosevelt's court-packing scheme in the 1930s. Then, the justices' main public response to what was widely viewed as a political attack on the court's integrity was a decorous letter from the chief justice to the Senate reporting that, contrary to the President's claims, the court was current in its calendar and didn't need extra manpower.

Brennan and Stevens, by contrast, were quite pointed. Brennan said that Meese's jurisprudence was "little more than arrogance cloaked as humility." According to Stevens, Meese had failed to evaluate almost 200 years of case law in his inquiry about the framers' intent and, thus, had ignored a key element in the shaping of constitutional law. The remarks of the justices affected politics, but their focus was the law.

These comments, from interviews and speeches, are part of a series that began almost 20 years ago. This kind of remark was notable then because such public candor was rare, and is notable now because it is increasingly common. In 1968, when Justice Hugo L. Black neared the end of his 34 years on the court, he gave an interview to CBS, the first time a sitting justice talked in front of a TV camera about the law, the court and the nation. At the height of the controversy about America's role in Vietnam, Black said to a national audience that he opposed the war. As an Alabaman, he broke ranks with other Southerners by stating that the court had "delayed the process of outlawing segregation" by the wording in Brown vs. Board of Education, and the problem could have been avoided by removing one phrase--"with all deliberate speed"--from the order.

Speaking about his distinct view of the Constitution, Black made remarks much like those of Justices Harry A. Blackmun, Brennan, Thurgood Marshall, Sandra Day O'Connor, Chief Justice William H. Rehnquist, plus retired Chief Justice Warren E. Burger and retired Justice Lewis F. Powell Jr. in recent interviews. Brennan once said that he didn't talk to reporters "at any time, at any place, on any subject," and others agreed. But the recent cluster of interviews indicates that the traditional practice of not speaking for the record is gone.

Some justices have also broken the old taboo against talking about the workings of the court, not only about specific cases but other justices. In 1979, Marshall sharply rebuked his colleagues in a speech criticizing a Burger court decision about crowding in prisons. "There is no one-man, one-cell principle," the court had ruled. Marshall literally drew a gasp by telling a gathering of lower-court judges to ignore the plain meaning of the prison decision and read it narrowly until it was overturned.

In 1984, in quick succession, Marshall was critical of the majority of the court for failing to protect civil rights as fully as he thought they should be, Stevens said his colleagues had exceeded their judicial authority to arrive at conservative results and Blackmun complained that the court was moving to the right "by hook or by crook." Then Rehnquist, in an interview, answered these challenges, calling the court's generation-old habit of finding new constitutional liberties, applauded by his liberal and centrist brethren, "a recipe for anarchy that isn't called for by the Constitution at all."

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