Tag Archives: Supreme Court

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Justice Byron White: The Consistent Curmudgeon

by Stuart Taylor, Jr.

The thumbnail sketch that has taken hold in commentary about Justice Byron White over the years goes something like this: Started as a Kennedy Democrat when appointed to the Supreme Court in 1962, moved to the right, ended as a crusty Rehnquistian conservative.

The 75-year-old White’s announcement on Friday that he would retire at the end of the current Court term provides an occasion for revisionism

Crusty he is, with a vengeance. This is a man of whom it was said, when he was the nation’s best college football player 56 years ago, that he was fast enough to run around defenders, but mean enough to prefer running through them instead and blasting them out of the way with his forearms. A lot of lawyers who have been bullied from the bench by White’s coldly penetrating questions would say he hasn’t changed much. So would a lot of former law clerks who have tasted White’s el-bows while going up for rebounds. ("The basketball court’s the only time I’ve ever really see him get close to people," says one.)

Nor has White’s ideology changed much, if at all. He never was the kind of liberal that the Kennedy name has come to stand for. (Nor was JFK, for that matter.) And he is not really a full-dress Rehn-quistian conservative now, except on a bunch of high-profile issues that have come to dominate headlines about the Court over the past two decades.

White’s jurisprudence has been characterized by the independence of a self-made, small-town Coloradan who grew up poor; the hard, hands-on work of a man who is at his desk at 7 a.m.; a dogged, unflashy consistency that bespeaks fundamental integrity; and the judicial self-restraint of a man who told the Senate Judiciary Committee during his 15-minute confirmation hearing in 1962: "I feel the major instrument for changing the laws in this country is the Congress of the United States."

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Glimpses of the Least Pretentious of Men

by Stuart Taylor, Jr.

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

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Thirty Lasches If You Win This Contest

by Stuart Taylor, Jr.

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.

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The Road Beyond Racial Preferences

by Stuart Taylor, Jr.

Why should a rich black lawyer’s child get into an elite college ahead of a struggling white factory worker’s child who has pushed himself harder and achieved better grades and test scores?

Why should either of them get the nod, for a university slot or for an entry-level job, over a poor child from the black inner city or white Appalachia who has slightly lower scores but has shown exceptional drive to overcome adversity?

Such questions-and the broader one of whether affirmative action for racial groups should give way to class-based preferences for individuals who have overcome disadvantage-are coming starkly into focus with Judge Clarence Thomas’ probable ascension to the Supreme Court.

The nominee’s broadside attacks on racial affirmative action in recent years suggest he may well cement a majority for eviscerating most or all race-based affirmative-action programs.

But Thomas also told the Senate Judiciary Committee that he favors preferences for those who have overcome barriers of social, economic, and educational deprivation.

He defended the affirmative-action plan that helped him get into Yale Law School in 1971 by saying (with questionable accuracy) that it was aimed at applicants who had done well despite "socioeconomic disadvantages" and that "the kid could be a white kid from Appalachia, could be a Cajun from Louisiana, or could be a black kid or a Hispanic kid from the inner cities or from the barrios."

In his own hiring decisions, Thomas added, "We look[ed] for people who have had some of the disadvantages….I think you can measure a person by how far that person has come and by what that person has overcome to get there….And I think we all know that all disadvantaged people aren’t black, and all black people aren’t disadvantaged."

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Why Confirm an Artful Dodger?

by Stuart Taylor, Jr.

It is hard not to have doubts about the fitness of Judge Clarence Thomas for the Supreme Court after his sometimes distressingly evasive testimony to the Senate Judiciary Committee last week.

He was not credible when he told the committee that he had never discussed Roe v. Wade with anyone, at Yale Law School or since, nor developed an opinion about it.

He was unconvincing in repeatedly disavowing, rather than defending, the apparent meaning of his controversial (but perfectly defensible) past statements on the importance of "economic rights" and the like.

Thomas’ stubborn insistence that his mishmash of musings about natural law had no relevance to constitutional adjudication, for example, is hard to reconcile with his 1988 contention that "the higher-law background of the American Constitution . . . provides the only firm basis for a just, wise and constitutional decision."

He dodged too many questions about law by talking about his now famous grandfather and reciting chapters from his justly celebrated climb out of poverty and segregation.

Thomas’ efforts to depict himself as a reassuring moderate fly in the face of a paper trail that suggests a tendency to veer toward ideological extremes and an uncritical enthusiasm for conservative nostrums.

In recent years he has gone beyond expressing grave (and well-founded) doubts about the fairness and social costs of racial preferences; he has condemned wholesale virtually every Supreme Court decision going back to the 1978 Bakke case that has upheld any kind of preference for minorities or women, even as a last resort to put an end to an employer’s continuing, egregious discrimination against blacks.

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Quelling the Fires of Hate Speech

by Stuart Taylor, Jr.

If the First Amendment protects political protesters who burn the American flag, must it also protect racist hate-mongers who burn crosses and display swastikas?

That is just one of the questions floating through a major case the Supreme Court will face in its coming term. It’s a case that divides free-speech libertarians from civil-rights groups, and that puts to a severe test our commitment to what Oliver Wendell Holmes called "freedom for the thought that we hate."

The Court’s decision could shed light on the validity of the codes barring various forms of offensive speech that have been adopted by dozens of cities, states, and universities. Spawned by rising concern about outbreaks of racist harassment, the codes have in turn provoked complaints about censorship of "politically incorrect" views.

The facts the Court will confront in R.A. V. v. St. Paul, No. 90-7695, are ugly. A group of white teen-agers burned a cross on the front lawn of the only black family living on a block in St. Paul in the early morning hours of June 21, 1990.

One of the alleged cross-burners, Robert Viktora, was charged under a 1989 city ordinance making it a crime to place on private or public property a burning cross, swastika, or any other "symbol, object, appellation, characterization or graffiti … which one knows or has reasonable grounds to know arouses anger, alarm or resentment in others on the basis of race, color, creed, religion or gender."

The main issue for the Court will be Viktora’s claim that he cannot be prosecuted under the hate-speech ordinance because it is unconstitutional on its face.

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Power to the People. What People?

by Stuart Taylor, Jr.

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.

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High Court in a Police State of Mind

by Stuart Taylor, Jr.

For decades we have looked to a web of Supreme Court decisions as the ultimate safety net to protect the innocent from wrongful conviction or detention and to shield us all from governmental abuse in the criminal process.

This safety net, fraying for years, has begun to unravel with alarming speed since the retirement last summer of Justice William Brennan Jr., the great champion of the individual in the grip of the state. Brennan’s replacement, Justice David Souter, has solidified a majority that seems in a hurry to accommodate police and prosecutors by devaluing rights.

The coalitions change, with only Chief Justice William Rehnquist voting against the criminal defendant in virtually every case. But the erosion of important rights proceeds, restrained neither by adherence to precedent nor by deference to the law-making role of the Congress.

A recent example-especially telling because the Court accepted the flimsiest of justifications for prolonging wrongful detention of innocent suspects-is the 5-4 decision in Riverside v. McLaughlin on May 13. The Court held that police could routinely jail suspects for up to 48 hours before bringing them in front of a judge to determine whether there was probable cause to arrest them.

Justice Antonin Scalia, who usually sides with Rehnquist, aptly characterized the result in his dissent: "Hereafter a law-abiding citizen wrongfully arrested may be compelled to await the grace of a Dickensian bureaucratic machine, as it churns its cycle for up to two days-never once given the opportunity to show a judge that there is absolutely no reason to hold him, that a mistake has been made."

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We Call That Writing

by Stuart Taylor, Jr.

"Journalists doctor quotes and add colorful language to them all the time to spice up stories," H. Bartow Farr III told the Supreme Court on Jan. 14. "They have every right to do it. That’s what the First Amendment is for."

Outside on the courthouse steps, Farr’s client, New Yorker magazine writer Janet Malcolm, added this: "So I fiddled a bit with Jeffrey Masson’s quotes. So what? The man is a conceited fool. My quotes revealed the larger truth. That’s how we do it at The New Yorker. We are artists, not petty scribes.

"And so. what if I pretended to be his friend? That’s journalism. Every journalist … is a kind of confidence man, preying on people’s vanity, ignorance, or loneliness, gaining their trust and betraying them without remorse."

Actually, that’s not quite what Farr said. Or what Malcolm said.

Actually, the quoted passages above are my words, not theirs-except the last sentence, which comes verbatim from a 1989 Malcolm article. And as far as I know, Malcolm made no statement on the courthouse steps at all.

I made up the quotes because I wanted to dramatize the wrongheadedness of the Malcolm-New Yorker defense, which is supported by many major news organizations.

But this much is true: If the Court upholds Farr’s arguments, neither he nor Malcolm nor The New Yorker could get to first base suing me for making up phony, offensive quotes and pretending that Farr and Malcolm had uttered them.

That’s because in my opinion-and my opinion would be all that mattered-my phony quotes roughly "convey the same meaning," to borrow Farr’s words, as other things that Farr and Malcolm have said.

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Busing Forever? Resegregation Now?

by Stuart Taylor, Jr.

Hearing its most important school-desegregation case in more than a decade, the Supreme Court was presented last week with two unappealing prospects: court-ordered busing in perpetuity or (de facto) resegregation.

The Court can and should avoid both alternatives.

The immediate issue in Board of Education of Oklahoma City v. Dowell is whether the school board acted lawfully in 1985 when it ended, for students from the first grade through the fourth grade, the cross-town busing that a federal judge had ordered in 1972 as a remedy for decades of official school segregation.

The larger issue is whether the court ordered desegregation measures that bind hundreds of cities all over the country can ever be discontinued if the result would be neighborhood schools that reflect racial imbalances.

While the oral arguments at the Court on Oct. 2 focused on legalisms like the definition of a "unitary" school system and such mysteries of causation as whether today’s segregated housing patterns are a vestige of official segregation, the larger questions at stake remained in the background.

Does the educational and social value of integration to blacks and whites alike outweigh the strain on small children who are bused to schools in alien surroundings far from their homes? Does it outweigh the problems caused by white flight, which has left many big cities with racially isolated majorities of black and Hispanic students, while sapping public support for the schools?

How much of the white flight was in fact caused by forced busing? Are whites who flee busing racist or irrational, or do some have reason to worry that their children’s education will suffer?