NewsHour: A look at Justice Blackmun’s Legacy – April 6, 1994

ROBERT MACNEIL: To assess Supreme Court Justice Blackmun’s legacy, we’re joined by four court watchers. Kathleen Sullivan is a professor of law at Stanford University. Charles Fried was solicitor general during the Reagan administration and now teaches at Harvard. Stuart Taylor covers the Supreme Court for American Lawyer Magazine and is a frequent court analyst for The NewsHour, and Harold Koh teaches law at Yale University. He also served as a law clerk for Justice Blackmun on the Supreme Court.

Stuart Taylor, besides the most famous Roe vs. Wade decision, what other decisions mark Justice Blackmun’s time on the court?

DOJ Nominee’s Authentic Black Views

Starting in 1981, the Reagan administration adopted the civil-rights agenda of the Republican right wing. It was a cheap way to appease a key constituency. The Justice Department’s Civil Rights Division was put under William Bradford Reynolds, whose policies were skewed by preoccupation with the threat of quotas and reverse discrimination against white males: He adopted a tone of self-righteous ideological certitude that polarized debate and obscured the strengths of his own position.

Now it appears that the Clinton administration may be starting down a similar road by adopting the civil-rights agenda of the Democratic left wing-including a proclivity for pushing the use of thinly veiled racial quotas. The best evidence is President Bill Clinton’s nomination of Lani Guinier, an impressive litigator-scholar with some alarmingly radical views, to head the Civil Rights Division.

Guinier sees white racism as an evil so pervasive and persistent as to require the most drastic of remedies-like junking "American majoritarianism" in favor of court-ordered allocation of "proportionate power" among racial blocs in legislative bodies. She says that civil-rights enforcement is and must be "a result-oriented inquiry, in which roughly equal outcomes, not merely an apparently fair process, are the goal." She suggests black legislators are "authentic representatives" only if they "are politically, psychologically, and culturally black."

And she has reviled Reynolds, six Supreme Court justices, and others with a bitterness and stridency that makes Reynolds’ rhetoric seem almost mild by comparison.

Glimpses of the Least Pretentious of Men

Justice Thurgood Marshall was sitting in his chambers, spinning yarns.

 The night before, he had been watching former President Jimmy Carter’s speech to the 1988 Democratic National Convention on TV. "I said to my wife, ‘Babe, he sure looks old,’" Marshall (then 80) recalled with a puckish grin. "And she said, ‘Have you looked in the mirror lately?’

"Every once in a while," added the greatest lawyer of the 20th century, "you have to look yourself in the mirror and ask yourself, ‘Who do you think you are? You aren’t so special.’"

One of the special things about Thurgood Marshall was that-long after his place in history had been secured-he was the least pretentious of men.

At one Supreme Court conference, he told colleagues a story about a little boy who had asked for his autograph and then handed him eight cards to sign. Why eight? "Because," the boy explained, "eight of yours gets me one of Willie Mays’."

Marshall also had a warm appreciation of people as people, their foibles and their virtues. He consented to talk privately with me a few times over the last few years about the Court and other justices, and on those visits I was always struck by his generous reservoir of good will for people with whom he deeply disagreed and his sheer love of fun. I have culled from my notebooks a few examples that I hope Marshall would not mind my quoting now.

The sometimes startlingly gruff exterior that he showed the public seemed to run about a millimeter deep. "What the hell do you want?" Marshall growled as I arrived for one appointment. Within moments, the growl gave way to his trademark, high-pitched "Hee-hee-hee," as he meandered from salty appraisals of public figures to tales of tangling with Gen. Douglas Mac Arthur in Korea.

Kind Words

Enough of the Grand-Jury Sham

"The grand jury . . . historically has been regarded as a primary security to the innocent against hasty, malicious and oppressive prosecution; it serves the invaluable function in our society of standing between the accuser and the accused."

Hogwash.

There was not much left of the grand jury’s role as a check on prosecutors when Chief Justice Earl Warren wrote these words 30 years ago, in Wood v. Georgia. There is almost nothing left of that role now, as Justice Antonin Scalia made clear in his little-noticed opinion on May 4, in United Stales v. Williams. The 5-4 Supreme Court decision strongly suggested that courts may never dismiss an indictment on the ground that the prosecutor refused to share exculpatory evidence-no matter how compelling-with the grand jury.

Scalia’s categorical assertion of "the grand jury’s functional independence from the judicial branch" also bespeaks a broader agenda of locking the grand jury into its modern role as the docile tool of executive-branch prosecutors by foreclosing any possibility of meaningful judicial supervision.

The Williams decision makes it clearer than ever that Congress should act to make the grand jury a real check on prosecutors-or, if it won’t, that all of us should put an end to the grand-jury charade.

By this I mean the habit of lawyers, judges, journalists, and others of routinely using the "grand jury" prefix to lend a false patina of solemn, communitarian legitimacy to investigations, subpoenas, and indictments that are, in fact, essentially unilateral decisions by prosecutors.

From the Files of a ‘Special Journalist’

Judge Malcolm Wilkey, Retired

Special Counsel
c/o Attorney General William Barr
Department of Justice
Washington. D.C. 20530

Dear Judge Wilkey:

 

I have appointed myself "Special Journalist" to investigate your investigation into whether any crimes were committed by members of the House of Representatives in connection with the so-called House Bank.

This is your formal notice of investigation and first set of interrogatories.

The issue under investigation by the Office of Special Journalist is whether any crimes, abuses of prosecutorial power, or sleazy political stunts have been, are being, or may in the future be committed in connection with your inquiry.

I. Factual Predicate

The factual predicate of the investigation includes allegations that your inquiry is being exploited for partisan political advantage by the Attorney General and/or other members of the Bush Administration.

Anonymous informants no less reliable than the Justice Department witnesses in the Manuel Noriega case have reported to this Office that such a political conspiracy may exist; that its members may include the Attorney General, U.S. Attorney Jay Stephens, and others; and that you may have been its witting or unwitting tool.

Among the allegations are the following:

(1) That public disclosures to date contain not a shred of evidence that any serious prosecutor would consider a reasonable basis for suspecting criminal activity by any House member.

(2) That while a handful could conceivably owe back taxes for any overdrafts large enough to be considered interest-free loans, that’s no crime, as you well know.

Thirty Lasches If You Win This Contest

The craft of lawyering often calls for peering into the future-foretelling how new laws will be construed, how constitutional doctrine will evolve, what practice areas will be hot or cold. And a new year beckons, pristine as new fallen snow.

So step right up and take the 1992 legal prognostication quiz. Test your skills. Compete for coveted awards. (First prize: a 30-minute videotape of Moira Lasch cross-examining "sex machine" William Kennedy Smith. Second prize: a 60-minute tape.) Bill the time to continuing legal education.

(1) American lawyers who open offices in Moscow and other cities in the former Soviet Union will end the year looking: (a) smart; (b) dumb; (c) for something to eat.

(2) The most insufferable lawyer in the United States will be: (a) Alan Dershowitz; (b) John Doggett; (c) Alan Simpson; (d) Edward Kennedy;(e) Richard Nixon; (f) someone new.

(3) Robert Strauss, the Washington superlawyer who became ambassador to the Soviet Union in 1991 only to see it disappear, will close out 1992 as: (a) ambassador to the Commonwealth of Independent States; (b) ambassador to Russia; (c) ambassador to Uzbekistan; (d) ambassador to Japan; (e) a Washington superlawyer.

(4) The most sensational televised trial of 1992 will involve: (a) a man and a woman; (b) Long Dong Silver; (c) a murder; (d) a financial fraud;(e) police brutality; (f) an incompetent prosecutor; (g) Michael and Kathy, last seen at Au Bar.

(5) Justice Clarence Thomas will: (a) finally (and for the first time) decide what he thinks about Roe v. Wade; (b) finally read it; (c) vote to uphold damage awards in federal sexual-harassment suits; (d) in his first written opinion, refer to his grandfather; (e) pose for Cosmopolitan.

(6) Justice David Souter will: (a) vote to upholdRoe v. Wade; (b) vote to reaffirm and extend theban on state-sponsored school prayer; (c) getmarried; (d) pose for People magazine.

Hard Cases and Party-Line Justice

In reversing the convictions of three once-powerful Reagan administration officials-Lyn Nofziger, Oliver North, and, last month, John Poindexter-the U.S. Court of Appeals for the D.C. Circuit has consistently cleaved along straight party lines.

Each of the eight Reagan-appointed and Bush-appointed judges (including now-Justice Clarence Thomas) has voted to reverse each of the convictions that he or she has reviewed.

And each of the four Carter-appointed judges has voted to affirm (at least in part) each of the convictions he or she has reviewed.

In all, Reagan/Bush judges have cast a combined total of 12 votes for reversing these three convictions, and Carter-appointed judges have registered a combined total of seven dissents.

Nofziger, North, and Poindexter are the only high-ranking Reaganites who have appealed convictions to the D.C. Circuit. Each was prosecuted by an independent counsel.

(In a fourth case, which did not lead to criminal charges, two Reagan appointees in 1988 struck down the law providing for such independent counsel, over a Carter appointee’s dissent. The Supreme Court reversed that decision by 7-1.)

Why have the Reagan/Bush judges-far more likely than the Carter appointees to side with prosecutors in the ordinary run of criminal cases-been such vigilant guardians of the procedural rights of the accused in these cases?

Why have they so unanimously found inadmissible evidence of unchallenged reliability that proved North and Poindexter had committed serious federal crimes?

Conversely, why have the Carter judges- usually so solicitous of the rights of criminal defendants-voted to spurn the appeals of these defendants?

Why have they rejected the arguments of, among others, the American Civil Liberties Union (in amicus briefs) that the North, Poindexter, and Nofziger prosecutions offended important constitutional principles?

Power to the People. What People?

The central vice of liberal judicial activism, conservative theorists have long contended, has been unwarranted interference with the rights of the people to make the laws through their elected representatives.

Now that Reagan and Bush appointees are firmly in command of the Supreme Court, will they practice the deference to elected representatives that their sponsors preach?

Perhaps. But the record so far suggests no great devotion to the policy-making primacy of the nation’s pre-eminent representative assembly, the U.S. Congress-which also happens to be the object of withering conservative scorn. And some decisions have the feel of a judicial-executive pincer movement cutting Congress out of the process of revising statutory policy.

A few examples:

• The much-discussed abortion-counseling decision this May, Rust v. Sullivan, adopts an approach to statutory interpretation that amounts to a significant transfer of law-making initiative from Congress to the executive.

• Other rulings have evinced an unrestrained readiness to revise the settled meaning of statutes by overruling precedents that Congress has not chosen to disturb.

• Some of the conservative justices seem ready to impose major limitations on the power of Congress, as well as the states, to use racial preferences to remedy past societal discrimination. If they succeed, it would be an arrogation of power as activist in some ways as the 1973 decision legalizing abortion.

The Reagan and Bush appointees are far from being a monolithic bloc, and it is too early to say whether they will be as prone as liberals have been to thwart majoritarian democracy. But it maybe time to start keeping score.

When Judicial Flips Aren’t Flops

"In some unknown number of cases the Court’s rule will return a killer, a rapist or other criminal to the streets and to the environment which produced him, to repeat his crime whenever it pleases him. As a consequence, there will not be a gain, but a loss, in human dignity."

Those were Justice Byron White’s words in 1966, in a forceful dissent from the Supreme Court’s 5-4 ruling in Miranda v. Arizona that police must tell arrested suspects of their rights to remain silent and consult counsel, and must cease interrogation once a suspect has requested a lawyer.

Earlier this month, however, White joined a 6-2 decision that both reaffirmed Miranda and extended it. Justice Anthony Kennedy’s majority opinion in Minnick v. Mississippi reversed a murder conviction and suppressed a confession on the ground that, after a suspect has consulted an attorney, the police may not initiate or resume questioning without the attorney present.

So Justice White’s gotten more liberal, right?

Not exactly. Take a look at his evolution on affirmative action.

In 1979, White lined up with the liberals, joining Justice William Brennan Jr.’s opinion in Steelworkers v. Weber, the first clear endorsement of racially preferential affirmative-action plans by private employers.

But by 1987, White had completed a seeming migration to the conservative, anti-affirmative-action side. Dissenting in Johnson v. Transportation Agency, he wrote, "I would overrule Weber." He complained that the Court was stretching Weber to bless reverse discrimination by any employer with a statistical imbalance in its work force, in a ”perversion” of the 1964 Civil Rights Act.

Wallachs Appeal From Rampant ‘Rudyism’

"There are some things that happened at the trial that I find very bothersome," Judge Thomas Meskill observed during the Oct. 23 oral arguments in the appeals of E. Robert Wallach and two co-defendants.

"Bothersome” is putting it mildly.

The closer the three-judge panel of the U.S. Court of Appeals for the 2nd Circuit-looks, the more likely it is to throw the case out as a travesty-conceived in unchecked prosecutorial zeal, compounded by a patently unfair trial, and dedicated to the proposition that criminal statutes mean whatever a prosecutor says they mean.

Some former prosecutors have a word-"Rudyism"-to describe the brand of overweening prosecutorial hardball that flowered under former U.S. Attorney Rudolph Giuliani of Manhattan. This was a case of Rudyism run amok.

Wallach, the bumptious personal-injury lawyer from San Francisco who made a new career in the 1980s out of his friendship with Edwin Meese III, was convicted on fraud, racketeering, and conspiracy charges in August 1989. His 16-week trial, together with Rusty London and Wayne Chinn, centered on their work for the Wedtech Corp., the scandal-ridden, now-defunct Bronx defense contractor.

Wallach was clearly guilty of sleaziness in the first degree for shamelessly trading on his relationship with the former White House counselor and attorney general. That’s why Giuliani’s prosecutors bent so many laws and made so many deals to get him, after trying in vain to get him to turn on Meese.

But sleaziness is not a crime. Lots of people parlay it into wealth, power, and status. Wallach’s brand was strangely mixed with a kind of egomaniacal idealism and an ardent belief (at least at first) that Wedtech, like his pro bono work in San Francisco and his efforts to free Soviet Jews, was a noble cause. Indeed, in 1981 and 1982, the Bronx native represented the minority-owned (or so he thought) company for free.