Supreme Court Enters 3rd Century Facing Complex Social, Legal Issues

Of all the institutions that have shaped America over the two centuries since its birth, shaped its political, social and even its cultural face, perhaps the most influential sculptor has been the U.S. Supreme Court.

Now the court goes into its third century pondering issues never dreamed of by the framers of the Constitution, ruling on such matters as burning the flag, abortion and affirmative action.

They are legal issues, to be sure, but they are also political and social issues.

The court, in the words of one scholar, has become “a barometer of political and social change”--and, in the words of historian Samuel Eliot Morison, “the keystone in the federal arch.”

It was perhaps unavoidable that the nation’s highest tribunal would reflect national politics.

In one of the first cases to be argued before the court, Atty. Gen. Edmund Randolph said, “With this discussion, though purely legal, it will be impossible to prevent the world from blending political considerations.”

Randolph spoke his words on Aug. 11, 1792, in the court’s third year, as the justices considered whether a state could be sued by an individual who lived in another state.

At that time the court had five justices who held court in the Philadelphia City Hall. Now the court, which observed the 200th anniversary of its first sitting on Feb. 1, has nine justices. It meets in a three-story marble building on Capitol Hill.

Without question it has a mystique about it.

“Most people have a sort of a reverent eye about the Supreme Court,” said civil rights attorney William M. Kunstler, a harsh critic of the institution. “They go into that building with the carpets and the columns and the awe-inspiring aspect of it, and they say, ‘Oh, my God! It’s the fount of all knowledge!’ ”

Hollywood has mirrored this view. In the 1942 comedy, “The Talk of the Town,” Ronald Colman plays a small-town lawyer who is named to a seat on the high court. Every time the subject comes up, massed violins strike up a soaring melody.

Richard M. Nixon, running against Democrat Hubert H. Humphrey in 1968, campaigned against the mystique as he promised to nominate law-and-order justices if elected President.

“Whenever I begin to discuss the Supreme Court, Mr. Humphrey acts like we’re in church,” Nixon complained.

More recently, President Ronald Reagan charged liberals with politicizing the court in their successful battle against his nomination of conservative Robert H. Bork to its bench in 1987.

Many jurists, scholars and lawyers, however, say that whatever the issue, whatever the setting, the court cannot get away from political currents.

“The Supreme Court has never been above politics,” said historian Frank Freidel, professor emeritus at Harvard and the University of Washington.

“I think the court inevitably reflects the social and political trends of the age we live in,” said A. E. Howard, professor of law at the University of Virginia and a Supreme Court authority. “Much of what the court does is a barometer of political and social change.”

“It is totally political,” Kunstler said. “To pretend it is not is to delude the American people.”

The turn-of-the century humorist Finley Peter Dunne, speaking through his Irish immigrant character Mr. Dooley, put the sentiment into dialect, saying “th’ supreme coort follows th’ iliction returns.”

Even Chief Justice William H. Rehnquist, in a 1986 speech at Suffolk University School of Law, said, “Judges, so long as they are relatively normal human beings, can no more escape being influenced by public opinion in the long run than can people working at other jobs.”

The Constitution merely says, “The judicial power of the United States shall be vested in one Supreme Court, and in such inferior courts as Congress may from time to time ordain and establish.”

The Constitution says little about the Supreme Court’s powers, only that it will hear appeals and will have original jurisdiction over some limited categories of cases. It does not say how many justices there should be. Congress set the number at six, then changed it to five, six again, seven, nine, seven again and then nine again.

In its early days, the court was by no means the prestigious institution it later became. George Washington, recruiting potential nominees for the new tribunal, got several turndowns. John Jay, the first chief justice, resigned to run for governor of New York. Others also left to take other jobs.

After the appointment of Chief Justice John Marshall in 1801, the court loomed larger. It is the bust of the third chief justice, not Jay’s, that is on the bicentennial postage stamp. It is also his name that is associated with the court’s first great milestone.

The power of the Supreme Court to strike down laws by ruling they are unconstitutional is so much a part of American life that it is easy to forget it was not always taken for granted. The Constitution says nothing about it. George Washington believed the President would exercise this power, through his veto. But as it turned out, presidents used the veto as an instrument of policy instead.

Then, President John Adams tried to make one William Marbury a “midnight judge” by giving him a justice of the peace appointment just before leaving office.

In 1803, Marshall, writing for a unanimous court, struck down the law under which Marbury sued to force the new Jefferson Administration to honor the appointment. There would be no reason to have the powers of Congress limited in the Constitution “if these limits may, at any time, be passed,” the chief justice said. He said it was up to the courts “to say what the law is.” Marbury never got to be a justice of the peace.

The court did not again rule a law unconstitutional for more than half a century, but when it did it added fuel to the smoldering controversy that would blaze into Civil War.

Dred Scott was the slave of an Army surgeon’s widow in St. Louis, and Missouri was a slave state. Before the surgeon died, however, he had taken Scott with him to Army posts in Illinois and what is now Minnesota. Scott sued for his freedom on grounds he had lived for years in a free state and territory. He lost in Missouri courts and in a federal circuit court. Then the case went to the Supreme Court, which had a Southern majority and was headed by pro-slavery Chief Justice Roger B. Taney.

In 1857, the court ruled that Congress had exceeded its constitutional powers in adopting the Missouri Compromise prohibiting slavery in some territories. Scott was freed by his owner anyway, but died of consumption a year later.

The court was so vilified in the North that a later chief justice, Charles Evans Hughes, described the ruling as a “self-inflicted wound.”

Abraham Lincoln, taking office as President in 1861, acknowledged that the rulings of the court were “entitled to very high respect and consideration” but added that “if the policy of the government, upon vital questions affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made, in ordinary litigation between parties to personal actions, the people will have ceased to be their own rulers.”

Despite Lincoln’s words, the court continued to decide ordinary litigation between parties and in the process set national policy.

“Most presidents at one time or another have made some statement like that,” Howard said. “Whenever the executive branch has been threatened by the court, they immediately invoke democracy.”

Take Andrew Jackson.

The Marshall court ruled in 1832 that two missionaries had been wrongly convicted and imprisoned by the state of Georgia for living among the Cherokee Indians.

“John Marshall has made his decision; now let him enforce it!” said President Jackson.

Marshall could do no such thing, and the missionaries languished in prison for years.

In “The Federalist Papers,” Alexander Hamilton wrote that the judiciary “has no influence over either the sword or the purse. . . . It may truly be said to have neither force nor will but merely judgment.”

Merely judgment.

* A judgment in 1896 that separate railroad cars for blacks were not discriminatory, as long as the facilities were equal, establishing a standard for treatment of the races that stood for more than half a century.

* A judgment in 1905 that laws limiting the work week for men were “mere meddlesome interferences with the rights of the individual,” a standard that would give way as the court later approved wage-and-hour laws.

* A judgment in 1952 that President Harry S. Truman exceeded his authority in seizing struck steel mills.

* A judgment in 1954 outlawing school segregation, ruling that the separate-but-equal doctrine had no place in public education.

* A judgment in 1973 striking down restrictive abortion laws in 46 states.

* A judgment in 1974 that President Richard M. Nixon must surrender Watergate tapes sought by a special prosecutor.

* A judgment in 1989 striking down a law against desecrating the American flag.

“We have seen a shift from structural questions like federalism to social issues like abortion,” Howard said. “I think the court has registered another significant political change and that is the vast sweep of government. The more government does, the more opportunities there are for people to complain.”

In the 1930s, President Franklin D. Roosevelt, frustrated by a string of decisions striking down New Deal programs, sought legislation enabling him to pack the Supreme Court by appointing a new judge for every one who reached age 70. It was his most stunning defeat.

“It made him look like a dictator,” said Freidel, author of a new one-volume biography, “Franklin D. Roosevelt: A Rendezvous with Destiny,” and an earlier four-volume study of Roosevelt. “That was a terrible thing to look like in 1937, with Hitler and Mussolini rampant in Europe.”

As it turned out, the court-packing plan was unnecessary. Between 1937 and 1940, resignations created five vacancies, and the President had a “Roosevelt Court” that upheld New Deal legislation.

President Dwight D. Eisenhower’s appointment of Earl Warren as chief justice in 1953 ushered in an era of judicial activism, including the school desegregation decisions, the 1963 ruling against mandatory prayer in public schools, a ruling the same year that all criminal defendants must have counsel, and the “one man, one vote” rule on congressional reapportionment in 1964.

“All governments, including Supreme Courts, are influenced directly by what’s happening in the streets of the country,” Kunstler said. “During the Warren era you had the pressures that came from the streets of Birmingham and other places, Martin Luther King and so on, that forced the court to do right.”

President Nixon’s appointment of Warren E. Burger as chief justice in 1969 and his subsequent naming of three associate justices ushered in a more conservative era that has continued under Rehnquist.

In decisions this year, the court has ruled that prison officials may force mentally ill inmates to take anti-psychotic drugs, has broadened the power of police to conduct searches after making arrests in private homes and has upheld a type of death penalty law in effect in 14 states.

“I regard the Supreme Court as an enemy, not a friend, and I think it has to be treated as an enemy now,” said Kunstler, who has argued the flag-burning case among others in the high court. “It should be picketed. It should be attacked in every way possible because it is not a harbinger of goodwill and human rights and equal rights and liberties for all.”

Howard, however, thinks the panel does a pretty good job of living up to the motto over its front door: “Equal Justice Under Law.”

“I think by and large it does,” he said in an interview. “I suspect it is a more evenhanded court than it might have been in an earlier age.”

Of the current members of the court, William J. Brennan was appointed by Eisenhower, Byron R. White by John F. Kennedy, Thurgood Marshall by Lyndon B. Johnson, Rehnquist and Harry A. Blackmun by Nixon, John Paul Stevens by Gerald R. Ford, and Sandra Day O’Connor, Antonin Scalia and Anthony M. Kennedy by Reagan. Reagan also elevated Rehnquist to chief justice.

Eight of the last 29 justices had political careers before going on the bench, but the trend in recent years has been to nominate people with judicial experience. Seven of the present nine justices, all but Rehnquist and White, were judges on lower appellate courts when appointed.

Howard said he found this “troublesome.”

“I think when Hugo Black came from the Senate and William O. Douglas from the Securities and Exchange Commission and Earl Warren from California politics, they brought a dimension that an appellate judge simply does not,” the Virginia law professor said. “I would like some of the nine to have been judges, but not all nine.

“I think it should be political in the broad sense. It is a place where policy is made, for better or worse, and therefore it should be tested by how people feel about it. But it ought not to be political in immediate or partisan terms. I think it is proper that once a justice is on the court he is frequently an ingrate to the President who put him there.”