Justices Brennan and Marshall

I was overcome by the slanted and distorted view of the judiciary presented in the editorial and the article (Editorial Pages, Oct. 6) by Harry N. Scheiber.

Your eulogy of Brennan’s career was thoroughly outrageous. He and Marshall are so far out of step with the American body politic that they bring to the Supreme Court needless and potentially harmful derision.

Scheiber accuses the Reagan Administration of not treating the high court with the proper deference. But by insulating themselves from the mainstream of our democracy the justices themselves bear the brunt of the blame for any loss of prestige. Yet elitists like Scheiber rally to support this supposed tradition of judicial insulation.

Curiously, Scheiber referred to the other major instance in this century when the Supreme Court was seriously opposed to the agenda of an overwhelmingly popular Chief Executive, but he failed to draw the proper inferences. Although Franklin D. Roosevelt did get his hands slapped with his “court-packing” plan, he achieved the desired results.

Whereas the court found major segments of the New Deal unconstitutional prior to 1937, after being jolted by F.D.R.’s brazen attempt to alter the court’s makeup they were much more accommodating in subsequent and almost identical decisions.

F.D.R. successfully pressured the court into accepting the then-current political realities. As a legal historian, Scheiber should have been able to give us the whole story. Or was that not his aim?

The professor bemoans current constitutional efforts to check rampant judicial activism. Activists like Brennan, Marshall and California’s Rose Elizabeth Bird freely interpret the law and Constitution in the light of their own social philosophies. The executive and legislative branches--direct representatives of the people--are continually restricted in carrying out their duties by an encroaching appellate judiciary that represents no one but itself and whatever philosophy it may have. And if Scheiber believes that activist judges are guided principally by the Constitution he is helplessly naive.

As for Brennan and Marshall, does anyone think for a minute that they could carry 49 states as did Reagan? No prophets they; rather they are the aging standard-bearers of an antiquated and bankrupt philosophy.

MICHAEL MASSEE

Chula Vista