The Name of the Game Is ‘Two Can Play’ : Supreme Court: Why should today’s ‘precedents’ be more sacrosanct than those jettisoned in the Warren years?

Once more the abortion issue beclouds the debate about another nomination--that of Judge Clarence Thomas--to the Supreme Court. Sen. Howard Metzenbaum (D-Ohio) would extort from the nominee a commitment to leave Roe vs. Wade untouched. Now, I too am in favor of a woman’s right to choose, but, recognizing that the nation is deeply divided on the issue, I claim no divine right to have my view prevail. Nor is it the province of a senator to dictate to a nominee how to decide an issue that may be presented to the court.

What we should ask of a nominee is unbiased judgment. If the nominee has clearly committed himself to one side, his impartiality may be open to question. More than once, however, the donning of judicial robes has resulted in unexpected shifts of opinion. When, in the course of an argument before the court, an attorney pressed upon Justice Robert H. Jackson an opinion he had written as attorney general, Jackson replied that he was then attorney for a client but now was sitting as a judge.

Eleanor Holmes Norton, the delegate to Congress from the District of Columbia, dwells on the need to respect precedent, meaning Roe vs. Wade. The Supreme Court has not felt bound to respect a decision that it has come to regard as mistaken. In overruling one century-old precedent, Justice Louis D. Brandeis, speaking for the entire court in Erie Railway vs. Tompkins (1938), stated that it was “an unconstitutional assumption of power (by the court) which no lapse of time or respectable array of opinion should make us hesitate to correct.”

Respected scholars have questioned the existence of a “right to privacy” upon which Roe rests. That “right” is not mentioned in the Constitution and its history. Justice William O. Douglas located it in “penumbras formed by emanations” from other provisions, a vaporous base upon which to rest a takeover of the states’ “police power,” a power over the health and welfare of their citizens.

The “precedents” so dear to the heart of Norton were only coined by the Warren-Brennan-Marshall axis in the last 40 years. In the process, it jettisoned many long-established precedents. “The list of opinions destroyed by the Warren court,” Prof. Philip Kurland wrote, “reads like a table of contents from an old constitutional law casebook.”

Why are the opinions of the last 40 years more sacrosanct than those of the preceding century, particularly more sacred than the decisions interpreting the 14th Amendment, upon which Norton’s “precedents” are based? The contemporary constructions of that amendment carry great weight under a centuries-old rule, because contemporaries of an enactment had the best opportunity of ascertaining the aims of the framers and the people.

The truth, of which legal scholars are well aware, is that the Warren-Brennan-Marshall axis was engaged in rewriting the Constitution. That right was reserved by Article V, the amendment provision, to the people. In the “homosexual” case, Justice Byron White acknowledged that the court had read modern “rights” into the 14th Amendment, that it had recognized (really had fashioned) “rights that have little or no textual support in the constitutional language.” Now the beneficiaries insist that those “rights” are untouchable, not to be imperiled by “conservative” appointments. But the name of the game is “Two Can Play.”

What was the appointment of Thurgood Marshall, a passionate leader of the civil-rights movement, but an arrant political appointment? Lyndon Johnson’s appointment of Marshall, said Geoffrey Garin, a Democratic poll-taker, “was a bold political statement.”

For my part, I say to both liberals and conservatives, a plague on both your houses. The Constitution, as Justice Joseph Story long ago observed, is “not dependent upon the passions or parties of particular times.” To insist that a nominee must adopt the views of Metzenbaum and Norton is to make the court a shuttlecock of politics. The court, however, is not an arena for the resolution of political conflicts. Constitutional interpretation calls rather for intellectual, dispassionate integrity and the highest professional skills and learning, for an honest attempt to ascertain what the framers of the 14th Amendment meant to accomplish, not what some may wish to have it mean.