Dean's Address

The Supreme Court: Reflections on the Constitutional Protection of Human Dignity

By Earl. L Neal

Under our Constitutional system, courts stand against any winds that blow as a haven of refuge for those who might otherwise suffer because they are helpless, weak, outnumbered, or because they are nonconforming victims of prejudice and public excitement.¹

These truths stated by justice Black a half century ago are as valid today as they will be tomorrow. It is our responsibility as advocates of the Bar to remain vigilant ‑ advancing with the commitment of our convictions the cause of justice so that our system will continue to be a safe harbor from the winds that blow, albeit blown by different administrations with shifting philosophies and concepts of justice.

We must be alert to any erosion of either the fundamental protections our Constitution grants or the independent interpretation by the Supreme Court of precedent that has withstood the winds of time. The possibility of an expedient intrusion by the ever changing administration is today, more than ever, a real threat.

The Constitution of the United States is the foundation of democracy and the protector of human rights, guaranteeing the equality of justice regardless of race, sex, or social status. Since Marbury v. Madison,² the Supreme Court has stood as the final arbiter and interpreter of the principles espoused in our Constitution; a document drafted and adopted in a different era, reflecting the principles of a young country based upon an unsophisticated agricultural society. Historically, the debate over the meaning and philosophy of the Constitution has been almost exclusively the domain of academia and the decisions of the Supreme Court. As a society, we leave it to the Supreme Court to sort out and protect the enduring values of society. However, the Reagan Administration's aggressive advocacy of its perception of constitutional justice has driven the debate from the isolated hallowed halls of the universities to the front pages of the news.

While Supreme Court justices have traditionally avoided direct involvement in political controversies, several current justices have become increasingly outspoken in recent years. Never before have they felt such an obligation, on an individual basis, to speak out in defense of their independence and their view of the Constitution.

Attorney General Edwin Meese III and Assistant Attorney General for Civil Rights William Bradford Reynolds have criticized many of the supreme Court's decisions as well as the alleged liberal views of individual justices. The Administration has campaigned for a "new vision of the Constitution" and has delighted conservative jurists by arguing that the federal judiciary must be restrained and that the Constitution should be interpreted based solely on the intent of the framers. To advance its views the Administration has a potent tool in Solicitor General Charles Fried. Traditionally, the Solicitor General has a dual role as an advisor to the Court, through his amicus briefs, and a spokesman for the President. Mr. Fried, however, sees no problem with acting strictly as an advocate of the Administration's views. Whereas the previous Solicitor General, Rex Lee, refused to be, as he said, "Pamphleteer General" ‑ in other words, one who aggressively asserts the Administration's politics despite their appropriateness to the case; Mr. Fried has no problem with that role.

This was exemplified when the Attorney General actively criticized a series of recent decisions wherein the Court adhered to the separation of Church and State. Mr. Meese has also publicly stated several times that he believes that the Exclusionary Rule should be abolished entirely and that the Bill of Rights should never have been applied to the States. It is this aggressive Administrative attack on the well‑established Supreme Court decisions protecting our civil liberties which has brought the influence of the Executive Branch on the Supreme Court to the forefront of current discourse.

The civil rights community has responded to all of this with both outrage and resignation. The NAACP's Julius Chambers has termed Mr. Meese's views "ludicrous but typical" Anthony Podestra, President of People for the American Way, has come out strongly against the Administration's position. He recently said that Mr. Reagan's suggestion that the Bill of Rights is being too vigorously enforced by the judicial branch seems to tinker with our very Constitutional system.

The Administration's attempt to exert an increasingly pervasive influence on the Supreme Court is illustrated through its appointments to the Supreme Court and lower federal judiciary, its management of trial advocacy, and its constant effort to influence public opinion. Professor Lawrence Tribe of Harvard University has pointed out that the power of appointment can far surpass even the power of amendment in reversing the most basic legal precedents and transforming the way the Constitution shapes our lives.

The federal judiciary is being remade in a new image as President Reagan quietly fills nearly half of the federal judgeships in the nation. Those judges are bound by Supreme Court precedent, but as all of you are aware, five of the nine justices on the Court are already over 76 years old and, therefore, it too is now vulnerable to presidential court-packing on a scale that this nation has rarely seen. The effect of large scale appointments of judges sympathetic to the Administration's philosophy will shape the rights of individuals in every aspect of their lives. The most fundamental rights will be influenced, including employment, the relationship between Church and State, fair housing, and the overall system of adjudicating rights. The role of the trial lawyer will be affected as well. Under the guise of protecting the "framers intent," euphemistically supporting the political bias of the elected leaders, the culmination of this effort may alter the constitutional guarantees we have heretofore perceived as being inalienable.

The Reagan Administration has espoused the strict construction theory of Constitutional interpretation, which represents an easy sell to the populace, since it is at least superficially consistent with our heritage. The appeal of this theory is that it harkens back to so‑called "traditional values" The Court itself lends support to this in that the elegance of the judicial tradition, the long black robes and dramatic majestic aura all enhance the vision of neutrality. Strict constructionism reinforces the illusion. The cornerstone of strict constructionism is the abiding belief that the justices do not make law, they are merely divining the true intent of the original framers as reflected in the words and phrases of the Constitution. This "phonographic theory of constitutional adjudication" denies the existence of any judicial creativity in the process. Instead, its premise is that there should be a neutral, passive court which merely gives voice to a self‑evident Constitution.

In the guise of limiting the judicial remedial power when enforcing protected human rights, the current administration has embraced a theory which they have titled "judicial restraint" This view is espoused in contrast to supposedly undemocratic judicial activism. In order to avoid judicial activism, Mr. Meese has said that the Supreme Court is to resurrect the original meaning of Constitutional provisions and statutes as the only reliable guide. On matters which were not ever considered by the framers, he believes that the substantive choices of elective government officials should be given deference. The flaws in this argument are manifest. To quote justice Brennan:

It is the very purpose of a Constitution ‑ and particularly the Bill of Rights ‑ to declare certain values transcendent, beyond the reach of temporary political majorities. The majoritarian process cannot be expected to rectify claims of minority rights that arise as a response to the outcome of that very majoritarian process.³

President Reagan has vowed to appoint only federal judges who follow a pattern of judicial restraint, ignoring candidates who might attempt to use the courts as vehicles for so‑called “political action or social experimentation.”⁴ Many critics assert that these efforts are a badly‑disguised attempt to clamp down on individual rights. Justice Brennan agrees and argues that a position that upholds constitutional claims only if they were within the specific contemplation of the framers, in effect establishes a presumption that ambiguous constitutional phrases should be interpreted narrowly, so as to avoid finding violations of individual rights. He goes on to say that this is a choice no less political than any other; it expresses antipathy to claims of the minority seeking to assert rights against the majority.⁵

In a recent article for the New York Times, Judge Irving R. Kaufman of the Second Circuit Court of Appeals claimed that he and his fellow judges find it extremely difficult to ascertain the intent of the framers on any given matter. He said that the methodology of strict interpretation would conflict with the judge's duty to apply the Constitution's underlying principles to changing circumstances. Furthermore, by attempting to erode the basis for judicial affirmation of the freedoms guaranteed by the Bill of Rights and the 14th Amendment, the original intent theory threatens some of the greatest achievements of the federal judiciary. The entire incorporation process would be at risk, as would the body of law based on the fundamental right to privacy, since neither are explicitly discussed by the Constitution or the framers.

Justice Stevens has come out squarely against the Administration's views in this matter. In a speech just a few months ago at a Federal Bar Association luncheon in Chicago, justice Stevens said that the development of Mr. Meese's argument is somewhat incomplete:

[I]ts concentration on the original intention of the framers of the Bill of Rights overlooks the importance of subsequent events in the development of our law. [In particular] it overlooks the profound importance of the Civil War and the post‑war amendments on the structure of our government, and particularly upon the relationship between the Federal Government and the separate states.⁶

In taking its stand, the Administration has adopted one of three separate and distinct philosophies of constitutional interpretation. We have already discussed the "framers' intent" or strict construction theory. The second is so‑called "legal realism" which is virtually devoid of precedent, but which is the favorite of several constitutional scholars.

This I will discuss in a moment. The third philosophy is one which I see as being the happy medium between the previous two extremes. It sees the Constitution as a living document that builds upon precedent while constantly remaining aware of shifting societal needs. If you were to make a general survey of the great body of material written on the topic of constitutional interpretation, you would notice, as I have, that the majority of authors, unfortunately, have tended to take a position at the extremes.

Let us look at the so‑called "legal realists" who claim that the rulings of the judges are personal to those judges, and reflect only the views of the individuals with the power to decide the outcome of the particular case before them. In other words, the realists believe that the judges look to nothing more than their own values in order to make their decision.

This minority and rather extreme view is embraced by several academicians. At the end of a lengthy treatise on the subject, John Nowak of the University of Illinois came to the conclusion that "the law" is a fraud. He said that there is no demonstrably correct set of legal principles which will dictate the resolution of constitutional issues apart from political philosophy and the exercise of political power by the Justices.⁷ He intended for this to encapsulate the theory of legal realism. I cannot help but think that with this he goes too far.

There have clearly been times over the course of constitutional history that Supreme Court justices have subsumed their personal views and gone along with a decision that was deemed to be in the interest of institutional stability. In order to follow the doctrine of stare decisis they had to sometimes go against their personal beliefs and other times they found that the written words of the Constitution mandated a particular holding.

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