Meese: Wrong Again

Attorney General Edwin Meese III’s latest foray into legal theory finds him asserting that opinions of the Supreme Court of the United States apply only to the parties in the case in court and are not the “supreme law of the land that is binding on all persons and parts of government, henceforth and forevermore.”

To be sure, in the course of two centuries the Supreme Court has many times reversed itself or changed direction as conditions changed or as a new generation re-examined a theory of law. Members of Congress can vote against a bill because they think it is unconstitutional, and the President may veto an act of Congress on those grounds. If that is all that Meese meant to say, he could perhaps be excused for a careless choice of words.

But Meese was being very careful, and the political message he sent was the message he intended to send: “If you don’t like the Supreme Court’s opinions, you should ignore them. After all, it is the Constitution, not the Court that is the law.” As a practical matter, this notion is exactly wrong.

Since 1803, the Supreme Court has been recognized as the interpreter of the Constitution. Its rulings are indeed the supreme law of the land, and it is the obligation of every citizen, every judge and every agency of government to heed them.

It is particularly distressing that Meese chose to criticize the court’s opinion in the 1958 case of Cooper vs. Aaron, which was the first segregation case following Brown vs. Board of Education. At a time of great turmoil, when many people wanted to defy the court, the justices unanimously reaffirmed their decision in Brown and declared, “Article VI of the Constitution makes the Constitution the ‘supreme law of the land.’ In 1803, (Marbury vs. Madison) declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this court and the country as a permanent and indispensable feature of our constitutional system.”

The justices were forced to make this declaration in 1958 because Gov. Orval Faubus of Arkansas had made an assertion similar to the one that Meese made last week. The Arkansas schools did not have to be desegregated, Faubus claimed, because Arkansas had not been a party to Brown vs. Board of Education, and Supreme Court decisions apply only to the parties in the case. Not so, said the justices in Cooper vs. Aaron, and all nine of them personally signed the opinion--the only time in the history of the court that that has occurred.

Legal scholars have long debated the source and scope of the court’s authority, which presents an interesting intellectual and philosophical discussion. Meese, however, is out of his depth in that league. Even if he were up to the task, it is inappropriate for the nation’s highest law-enforcement officer to make such pronouncements, for they encourage lawlessness in a society that values the rule of law.