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

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.”

In 1986, Blackmun described as “outrageous” a Supreme Court decision upholding a Georgia law that makes sodomy between consenting adults a crime. He took the unusual step of reading his dissent from the high bench when the majority announced its opinion. He was offended by what he considered the court’s lack of regard for the right of privacy that protects intimacy among homosexuals as well as heterosexuals. Powell, after revelations in the press that he had switched his vote, dropped his Delphic airs and actually explained his action. He switched, he said, because the case was not sharply enough framed for resolving such a big issue--even though privacy was vanquished instead of being vindicated because of his flip-flop.

During the past generation, the Supreme Court has increasingly decided matters of social policy--as in the sodomy case--about abortion, affirmative action, school prayer and similar topics. Decisions seen from afar as broad legal pronouncements are revealed up close as an intense struggle among justices to agree on doctrine expressing the most subjective human judgments. These decisions, and controversy about them, can make the law appear indistinguishable from politics.

When justices move from talking about constitutional theory to talking about specific decisions, and then about court politics, and eventually about politics, period, they feed this concern. That’s what Stevens did recently by endorsing Bork for the Supreme Court, what Burger did by testifying before the Judiciary Committee that the Senate should confirm Bork and what Marshall did by telling a reporter on TV that Ronald Reagan ranked at “the bottom” among all Presidents in efforts to improve the lives of black Americans.

But each man’s remarks flowed from his views about what is right for the court and the law. Feeling their way in response to growing demand from bar associations and the media that they speak to serious questions about the law and more frivolous ones (Life magazine recently ran a spread about the justices that treated them like movie stars), the justices may find that they have to retreat from talking about some subjects while others are fair game. The law is, above all, about drawing lines. It will also have its anomalies--Justice William O. Douglas’ speeches about U.S.-Soviet relations and how to cultivate liberty in Asia amounted to his own foreign policy.

Yet, in the best of their public comments, the current justices illustrate what is clear from constitutional history. When the great Chief Justice John Marshall or modern conservative justices like Felix Frankfurter and liberals like Earl Warren defined the Constitution as a living charter, they meant that. Especially where the framers obscured their original intent, the words of the document had to take on life through legal discourse. For 200 years, this has happened in official opinions by the justices. It increasingly occurs in their speeches and interviews.

The risk of these comments is that the justices will prove unable to explain their decisions with legal principles that transcend politics, and distinguish what they do from the work of the political branches. Legal scholars, now as polarized as the justices (Blackmun described the court in 1983 as “nine scorpions in a bottle,” and last year said the “divisiveness of the court has grown” since), face the same challenge. But it has existed as a central item on the legal agenda since the 1930s--when American lawyers recognized the tension between the need for legal ideals that command respect because the justices make them appear to come from some higher authority, and the knowledge that the law is the imperfect creation of imperfect human beings. This has been especially so since the 1960s.

The most accessible current justices--Blackmun, Brennan, Marshall, O’Connor and Rehnquist (whose new book, “The Supreme Court: How It Was, How It Is,” is advertised as the first by a sitting chief justice)--have a pragmatic attitude about this tension. They seem to believe that by lifting the veil of mystery and hypocrisy at the court, and explaining the legal art as they view it, they can enhance respect for the court and the law. In any case, their comments emphasize that the social-policy issues that have helped draw wide attention to the law are magnetic not only because of their political nature but because they go to the heart of the Constitution.