Are High Court Rulings Binding on U.S. Officials?

Given that he is the former solicitor general in the Reagan Administration, it is no surprise that Rex E. Lee (Editorial Pages, Nov. 24) defends remarks made by Atty. Gen. Edwin Meese III. In a speech at Tulane Law School (Times, Oct. 24), Meese argued that the Supreme Court’s decisions interpreting the Constitution are not always binding on government officials. Lee admits that he initially found this viewpoint surprising, but after a careful analysis of the speech, he concludes that it is “90% correct” so long as one interprets Meese’s position narrowly. Lee attributes the “unfortunate references” to a more extremist view to “an overzealous speech writer.”

One does not have to be as trusting as Lee to conclude that Meese probably does view the Supreme Court decisions on the Constitution as binding on governmental officials. In fact, if we look at the total context of the attorney general’s behavior the most reasonable interpretation of his speech is that he simply finds it politically inconvenient to assert that belief at the present time.

Because the Justice Department’s decisions about which government cases to appeal give it a central role in determining the agenda for the federal courts, Meese is potentially in a position to create a body of legal precedents that will last long after he and President Reagan have left office.

The actualization of that potential depends on the conservative judges the Reagan Administration has been appointing to the federal bench. If these judges practice judicial activism, they can rewrite the Constitution in conformity with the policy views that Meese and this Administration have on issues such as abortion, affirmative action, capital punishment, and school prayer.

In fact, the Reagan Administration’s screening of judicial candidates for ideological purity makes sense only if Administration officials like Meese are assuming that once on the bench their appointees will practice judicial activism. But Meese can hardly admit this publicly after spending his entire political life condemning liberals for practicing judicial activism. Instead, Meese has to convince the public that the court’s decisions are not always binding so that the impending conservative revolution in law will be seen as a return to the original language of the Constitution rather than the creation of new legal policy that it is intended to be.

After all, if the court’s decisions on the Constitution do not always have to be considered the highest law of the land, then the undoing of prior legal precedents, especially those of the Warren Court, cannot be called policy-making and the Reagan appointees cannot be accused of practicing judicial activism. By arguing that the court’s interpretations of the Constitution are not binding on all parts of the government for all purposes, Meese is probably hoping to divert attention from his own agenda of staffing the federal judiciary with conservative judicial activists who Meese hopes will rewrite the law to reflect the policy views of today’s conservatives.

If this judicial revolution is successful, I seriously doubt that we will be hearing Edwin Meese III, the citizen, arguing in the future that the decisions of the Rehnquist Court can be ignored by liberals whether they are in Congress, the White House, or in state and local governments.

EDWARD S. MALECKI

Altadena