Tag Archives: Judicial Philosophy

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The Brawling on the Bench by Justices Who Must Decide the Law of the Land

by Stuart Taylor, Jr

Los Angeles Times

WASHINGTON — If recent history is any guide, by June the Supreme Court justices will be sour, sullen and snarling at each other in their opinions.

Last summer, Justice Antonin Scalia called Justice Sandra Day O’Connor’s position in an abortion case "irrational," "perverse," "indecisive" and so fatuous it "cannot be taken seriously." And they were voting on the same side.

Justice Harry A. Blackmun was no less circumspect in dissenting from the court’s decision to cut back abortion rights. He called Chief Justice William H. Rehnquist’s plurality opinion "unadulterated nonsense" reeking with "cowardice and illegitimacy."

Still, life at the Supreme Court is rather chummy these days. Compared, that is, with the way it used to be.

Consider James C. McReynolds, a choleric, anti-Semitic right-winger. He gave Louis D. Brandeis the silent treatment from 1916 until 1939 and left the room when Brandeis spoke at conference.

Brandeis took this serenely. "McReynolds is one of the most interesting men on the present court," he told Felix Frankfurter. "I watch his face closely and at times, with his good features, he has a look of manly beauty, of intellectual beauty, and at other times he looks like a moron . . . . I have seen him struggle painfully to think and to express himself and he just can’t do it coherently."

By 1946, Franklin D. Roosevelt’s court had broken out into such bitter personal feuding that then-President Harry S. Truman lamented, "The Supreme Court has really made a mess of itself."

It’s less a mess now. But the philosophical divisions are as passionate as ever. And if the antagonisms have run deeper in the past, they have seldom been so public. Opinions of the last two years contain some of the most vituperative attacks on other justices in court history.

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Justice Powell’s Predicament

by Stuart Taylor, Jr.

Like most Americans, Lewis Powell Jr. had never given much thought to the death penalty.

Then, in 1972, he joined the Supreme Court. Since then Justice Powell, who retired in June 1987 at the age of 79, has thought about it quite a bit.

He has adhered to his view that nothing in the Constitution bars governments from putting vicious murderers to death. But he has pondered what happens after all the appeals have been litigated and the stays of execution have run out and the prisoner’s head has been shaved.

"I just can’t imagine having the job of pulling the switch on someone in the electric chair," Justice Powell said in an interview last week in his Supreme Court office.

He also has come to believe, contrary to his initial assumption, that "capital punishment has not deterred murders." They have continued at a "shocking" 20,000-a-year pace, he notes, since he helped reinstate the death penalty in 1976.

"It’s perfectly clear that if I were in the legislature now, in view of the extended litigation and the ineffectiveness of the way the system operates, I would vote against the death penalty," Justice Powell concludes. "I would be inclined to vote against it in any event. We are the only Western democracy that still retains the death sentence… We have a system that isn’t working, and I doubt very much whether you could ever by law create a system that would work at the present stage of our civilization."

He adds that he has "moral concerns as well as legal.” Asked to elaborate, he pauses, groping for the right words, and says quietly, "The taking of human life is something that I’d rather leave to whomever one thinks of as God.”

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Rehnquist’s Court: Tuning Out The White House

by Stuart Taylor, Jr

The New York Times Magazine

CHIEF JUSTICE WILLIAM HUBBS REHNQUIST stared stonily out at the crowd in the marble-columned chamber from the Supreme Court’s center chair, the chair in which Ronald Reagan had put him two years before. It was June 29, the last day of the Court’s 1987-88 term, and one decision remained to be handed down – the big one.

 

"Number 87-1279," the Chief Justice began. Methodically, he summarized the background of this momentous challenge to the Federal independent prosecutor law, brought by the Administration and by former top Reagan aides caught in the law’s toils. The Watergate-inspired law – which provides for a special court to appoint prosecutors independent of the executive branch to investigate alleged crimes by top Federal officials – stood as an affront to the sweeping, unfettered vision of Presidential power that has become part of today’s conservative political creed. Administration conservatives hated it with a burning passion. Now Rehnquist, their choice for Chief Justice, was announcing the Court’s opinion, making it clear that he had written it himself.

 

Finally, he reached the question on which his audience hung. "We now reverse the Court of Appeals in an opinion joined by seven members of the Court," he said, "and uphold the validity of the independent counsel provisions of the Ethics in Government Act."

 

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Meese v. Brennan

by Stuart Taylor, Jr

The New Republic

An activist jurisprudence, one which anchors the Constitution only in the consciences of jurists, is a chameleon jurisprudence, changing color and form in each era.

The Constitution… is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.

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… the people will have ceased to be their own rulers.

The Court… has improperly set itself up as… a super-legislature … reading into the Constitution words and implications which are not there, and which were never intended to be there… We want a Supreme Court which will do justice under the Constitution – not over it.

SOUNDS LIKE Ed Meese, doesn’t it? Well, the first quotation is the attorney general’s. But the second comes from Thomas Jefferson, the third from Abraham Lincoln, and the fourth from Franklin D. Roosevelt. When Meese assails government by judiciary, he is in good company.

Meese has denounced major Supreme Court rulings of the past 60 years and called for judges to look to "the original meaning of constitutional provisions" as "the only reliable guide for judgment." No attorney general in the past four decades has set out so deliberately to reduce the power of the judiciary or to screen the ideological credentials of new appointees.