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Rights Will Be In Doubt If Politicization Spreads

October 11, 1987|ARCHIBALD COX | Archibald Cox, former Watergate special prosecutor, is a law professor at Harvard. This commentary, written before Judge Bork was nominated to the Supreme Court, is adapted from the introduction to the book "Defending the Constitution" (A. Colish).

If the federal judiciary loses its independence through gradual politicization--if the people come to see the court as just one more policy-making body--it will lose the capacity to render authoritative decisions upon the great questions of governmental structure and individual liberty left unanswered by the framers.

Presidents may and often have taken an appointee's political and judicial philosophy into account in selecting judges. Nonetheless, making or appearing to make appointments simply with an eye to obtaining a predictable vote on policy grounds tends not only to weaken belief in law but also to make the style of decision-making still more political, in both fact and public perception.

Independence of the judiciary implies reciprocal obligations. Judges must not only free themselves from all forms of obligation or commitment, including the ties of personal and group loyalties; they also undertake to decide "according to law." This allows--even requires--judgments fitting the country's long-range needs and aspirations; but if the court swings too far towards policy-making, it not only endangers its authority but erodes its claim to independence.

From 1950 to 1974, the court was mandating major institutional changes not only in the administration of justice but in the larger society. The desegregation cases reordered society throughout large regions. The reapportionment cases upset ancient political arrangements. The school prayer cases banished a practice familiar to generations of students. Each made ours a very much more human society, more equal, freer, and more respectful of individual dignity. Each was in keeping with the main currents of American history. Yet the resulting politicization raises concerns about the institutional costs of using judicial decisions so often to go so far so fast.

If politically conservative justices come to be a majority, they will have to choose between greater restraint and a form of judicial activism not very different from that of their more liberal predecessors.

The overruling of even the shortest of these lines of settled law--the abortion cases--would carry some suggestion that constitutional rights depend upon the vagaries of individual justices and the politics of the President who appoints them. The message would become dangerous if the reversals spread. Such action, moreover, would go far to encourage a swing back to the law as it stands today if a second new majority should result from a second wave of new appointments, this time by a more liberal President.

Constitutionalism as practiced in the past could not survive if, as a result of a succession of carefully chosen presidential appointments, the sentiment of the majority of the justices shifted back and forth at five- or 10-year intervals so that the rights to freedom of choice, freedom from state-mandated prayer, and the use of unconstitutionally seized evidence were alternately recognized and denied. The cycle would inevitably lead to pressure for the election of justices and judges.

If key court decisions are little different from the determinations of policy by other branches of government, why should not the voters elect the justices and judges for terms of years? The independent judiciary and rule of law that have kept the Constitution a living instrument yet provide Madison's bulwarks against executive or legislative curtailment of fundamental individual rights would be lost.

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