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The emperors have no robes.

Relax, liberals. The courts have seldom been a crucible of American social justice

There's an old story in American law that David Savage's book brings to mind. On a Saturday afternoon many years ago, Justice Oliver Wendell Holmes Jr. took a break from his work at the Supreme Court and went for lunch with his friend Judge Learned Hand, a man 30 years younger than Holmes who was just beginning a celebrated judicial career of his own. As the two men returned to the Old Senate Chamber in the Capitol Building, where the Supreme Court once sat, they took their leave, and Hand called out to Holmes, "Sir, do justice." The old man wheeled around, glared at his protege, and fired back, "That is not my job. My job, sir, is to play the game according to the rules."

Holmes' candor still shocks. The notion that what's legal isn't necessarily what's just offends a basic principle Americans hold about their society. You might call it the "Shining City" theory of law: Up there on that verdant hill, the law is an essential instrument, not a frequent impediment, to justice. No other nation clings to this illusion with such tenacity.

Chief Justice William Rehnquist and the Supreme Court he has led for five and a half years have systematically set out to disabuse us of this notion. Savage, who covers the Court for the Los Angeles Times, tells the story of Rehnquist's campaign in workmanlike detail. One is grateful for Savage's patient tabulation of the issues and conflicts in many key cases during Rehnquist's tenure as chief, but not particularly moved by his conclusions nor engaged by his narrative. This is a book, perhaps, more of case digests than digested cases.

Part of Savage's problem stems from his perspective. He judges the justices purely by how politically correct their decisions are. When excluded and dispossessed Americans win a vote in the chambers of the Court, Savage calls the result "liberal" and implies (though he never comes out and says it) that this result is good. When anyone else wins, Savage labels this "conservative" and treats it as one might treat an undeserving bestseller-with a knowing disparagement, a whiff of hauteur.

This style of analysis mirrors the mainstream media's coverage of the Court. And for anyone who shares Savage's progressive values, his terminology seems spot on. Indeed, it is salutary to have here a record, damning in its extent, of the winners and losers at the Rehnquist Court. If there were ever any doubt about the chances for achieving further social progress on a national scale through the medium of the Court, Savage puts it to rest.

That, of course, is precisely Rehnquist's point. Social progress, for the chief justice, is exclusively our business, not his (and one gets the distinct impression that he does not wish us well in the work). His job, as Holmes pointed out, is law, not justice. It should come as no surprise to Americans familiar with the role of lawyers in the savings-and-loan disaster, the international arms and drug trades, the takeover gluttony of the last 10 years, and every political campaign, that legal acumen guarantees nothing in the way of civic virtue. One is almost grateful to Rehnquist, a fine lawyer, for reminding us of this.

Regal legals

Savage, however, seems to have fallen for the extravagant claims made on behalf of lawyers and the law over the last generation. He is a devotee of the cult of the Court, hoping to find in its marble temple the fix for most American problems. How far beyond the realm of human limitations Savage is willing to place his justices can be seen in the odd, and slightly dishonest, narrative technique he employs.

Throughout Turning Right, Savage summarizes many cases by perfunctorily outlining the facts, quoting from oral arguments (the book's most engrossing material), and then, in what seems an extraordinary reportorial coup, revealing the justices' debates in conference. Only nine people are privy to those debates; they represent a hidden peak of power in the American government. Savage implies he has scaled those heights. Time and again, he begins a narrative passage with the phrases, "When the justices convened," or "At conference." But all he ever delivers is a little boiler-plate and, worse, direct quotations from the opinions ultimately released. This produces absurdities of "dialogue" such as Sandra Day O'Connor's supposedly telling her colleagues "at conference" that the Court must not "insulate [government officials] (sic) from liability for deliberate and calculated exposure of otherwise healthy military personnel to experimentation without their consent, outside of any combat, combat training, or military exigency, and for no other reason than to gather information on the effect of LSD on human beings." These lines can be found in O'Connor's concurrence in U.S. v. Stanley. That's not reporting; it's xeroxing.

It's also a kind of judicial hagiography, an approach that assumes justices talk like law books. While flattering to the Supremes, this misunderstanding reflects Savage's reverence for those books and his palpable hope that the answers for our civic ills can, or should, be found in their cool, dry pages. In this, Savage typifies a strain of elite liberalism that has come to rely more on litigation than legislation, more on suing people than persuading them, in the struggle for social reform. This error has been nearly fatal to the progressive cause.

Consider the crucial issue of civil rights. When it comes to the color line, the values of the left are unequivocal and unequivocally true: America's failure to achieve racial justice stands as a continuing indictment of our democracy and represents the deepest betrayal of the ideals that gave birth to this country. Peace among the races and truly equal opportunity for every citizen must rank at the very top of the progressive agenda. Pursuing that agenda through the courts, however, is, and often has been, a misallocation of resources as well as a dangerously counterproductive strategy. The Supreme Court, for instance, did not desegregate the nation's schools. Congress did.

Saying this may be liberal heresy, but the facts are conclusive. Gerald Rosenberg, a political scientist and instructor in law at the University of Chicago, has told the story compellingly in a fascinating book published last year called The Hollow Hope: Can Courts Bring About Social Change? Between 1954 and 1964, Rosenberg recounts, the Court handed down five "landmark" school desegregation cases, all of them unanimous, all implacably declaring segregation unconstitutional and demanding its cessation. Yet, by the 1964-65 school year, only .03 percent of the African-American children in Alabama went to an elementary or secondary school with white children. In Arkansas, the figure was .81 percent; in Georgia, .40 percent; in South Carolina, .10 percent; and in Mississippi, .02 percent. Earl Warren wasn't getting anywhere.

At least not until Lyndon Johnson joined him. The historic civil-rights legislation of 1964-66, and the simultaneous, massive infusion of federal funds into education that operated as the carrot accompanying the legislative stick, made the country's great leap forward possible. By the 1970-71 school year, more than 85 percent of the African-American school-children in the South were attending schools with white children. Politics not court decisions led to justice.

The reason for the Warren Court's inefficacy in desegregating schools goes to the heart of the long liberal miscalculation in the courts. Courts decide cases; but this specific, deeply constrained power can only be taken so far, no matter how freely one may interpret the Constitution. Most of the problems the country faces-racial discrimination, poverty, a degraded environment, failed regulatory schemes-demand the practical action of political debate and compromise, not the esoteric balancing tests and obscure doctrinal modifications handed down from judicial heights. Policy made from the bench lacks not only democratic input-as social critics from Eugene Debs to Robert Bork have pointed out-but democratic tools as well.

This is not conservative doctrine, though justices hostile to progressive policies are forcing it upon the country. Self-government is a liberal ideal, and since liberals in so many realms-from race to the environment to the tax code-have powerful arguments on their side, self-government will mean liberal achievement. One just has to be willing to fight for it in the political arena. The best thing to happen to civil rights policy over the past few years was the vigorous debate over and successful passage of the Civil Rights Act of 1991; the bill served as a powerful medium for focusing all the hopes and fears that America's ongoing struggle for racial justice always awakens. In the end, the good guys won.

That fight took place in Congress and with the president. On Rehnquist's Court, as Savage consistently notes, the good guys usually lose. Women, minorities, workers, the poor, criminal suspects, prison inmates, nonconformists, lesbian and gay people-the list of losers is relentlessly dispiriting. Why Rehnquist's justice rankles is a question that goes beyond the Court, beyond the law even, to the inchoate democratic hopes most Americans share. The justices are frequently the focus of these hopes, less for the policy prescriptions they issue than for the unique place they occupy in the national debate. The failure of the Rehnquist Court can be found in its categorical rejection of such a thing as hope in law.

We pay judges to judge; what this means has long been an area of fierce academic and political debate. Rehnquist and the school of "originalists" he more or less leads figure judging to be a fairly mechanical operation: One decides specific cases by applying the words of a statute or of the Constitution as they were originally understood by those who wrote them. Justice is bound tightly to texts, read in the narrowest historiographic fashion.

There are virtues in this approach, chief among them the renunciation of much of the judicial power accumulated under the Warren Court and the consequent need to revivify the democratic work of the American left. For instance, that the Supreme Court will not keep us from the savagery of capital punishment is ultimately a good thing. In light of the Constitution's emphasis on self-government and its acceptance of capital punishment, it is rightly we, not William Brennan, who must put a stop to state-sponsored killing. We cannot foist all the responsibility for justice on the Court.

For justice in America is not a set of precedents or rulings or doctrines; nor is it to be found only in the hallowed halls of the country's courts. Rather, justice in our country is a great conversation, and it takes place in our legislatures and bureaucracies, in our workplaces and homes. The Supreme Court is only one voice, and not always the last voice, in that conversation. (Edwin Meese Ill was roundly scorned for saying this, but he was right.) French Christian radical Charles Peguy once said that justice begins in mysticism and ends in politics; in America, it stops in between at the family dinner table.

The damage Rehnquist has inflicted on this process comes from his rejection of the role a judge's civic conscience plays in reaching decisions. By couching all issues as matter for textual exegesis rather than moral reflection, as a function of logic more than wisdom, Rehnquist and his followers do violence to the democratic conversation about justice in America. They are civic nihilists.

This is not to say that judges should tell us what's right and solve all our problems; that would be slipping into Savage's cult of the robe. A judge's civic morality includes as a leading precept a profound deference to democratic decisionmaking, to our voices determining in sometimes discordant measures what justice is. But judges also must decide between the moral incommensurates of democratic life. Mercy v. retribution, privacy v. morality, liberty v. equality-these are not the names of the cases that come before the Court, but they might as well be. They get there because the country sends them there. We await their outcomes with such hope not because we're looking for policy or for history, but because we're looking for that ancient province of judges: wisdom.

What this might mean in practice boils down to two principles, exemplified in two recent cases Savage outlines. First, democratic majorities by their nature have coercive powers that are abused when all discussion of a wrenching issue is ended and further dialogue is closed off-when, in short, politics is silenced. The Court must not side with such a majority; it must try to keep the conversation going. This approach is elegantly articulated in Robert Burt's new book, The Constitution in Conflict, and it was courageously applied by Justice O'Connor in the 1985 case Wallace v. Jaffree. There, the state of Alabama tried to force its public school-children to bow their heads in prayer or leave class. The Court's 6-3 opinion hinged on O'Connor's common-sense perception (she has become a profound jurist on matters of church and state precisely because of her common sense) that if it is wrong to prohibit a child from praying on public property-as Brennan and many liberals seek to do-it is equally illegitimate to force a child to pray there. Her middle ground is not mushy; it is fair, and seen as such by most Americans.

The other precept at the heart of a justice's responsibility to speak conscientiously in the national discourse comes when human dignity is at stake. The Constitution may be silent on such questions, but the Court can legitimately lead when American actions betray the most basic American ideals. Stanford v. Kentucky, the 1989 juvenile death-penalty case, provides a tragic example of Rehnquist's Court abandoning this duty. Perhaps the Court must let us kill; but can it do nothing to keep us from killing children, or the mentally retarded, or the insane? The wise judge does not flinch from mercy.

To say that wisdom is no business of the Court is to reduce a justice to a legal functionary. This conception was not shared by the people who founded the republic. The framers so admired by Rehnquistians kept their debates in Philadelphia secret for decades for a very good reason: they thought the words they wrote should speak for themselves. Judges give those words the only meaning words can have, the shared understanding of the people who speak the language. The present tense is critical. Warren's peace

This limited role justices play in helping to define the moral underpinnings of the nation is best seen in Brown v. Board of Education-a case that simply couldn't be decided by reference to "black-letter" law or "original intent." Warren's opinion for a unanimous Court is the greatest achievement in American law not because it actually desegregated the nation's schools (as Rosenberg demonstrates, widespread civic commitment was necessary for that), but because Brown is the noblest example of the Court speaking to the conscience of the country, and speaking plainly.

But Brown was made necessary because all other political institutions had utterly failed and were continuing to fail in coming to grips with the profoundly changing meaning of the words "equal protection of the laws." Words do not change their meanings willy-nilly or with every passing academic phase. They change as the people who speak them change, and that's why when words take on new meaning, it is political institutions, and not courts, that ought to refashion the law. Sometimes, however, we need a shot of courage to start that work. The Court can provide that impetus, but it can only do so when it is truly crystallizing a consensus in the country, when it captures an emerging understanding of justice, when it sums up the strains of the great debate.

In the most difficult cases that come before the Court, law-whether in the form of original intent historiography or quasi-legislative policy-making-isn't enough. We look to the justices to speak their unadorned conscience in the language of today when they face the most troubling issues in our society. Though limited by the natural constraints on the reach of judicial power, the men and women who sit in our courts have a duty to weigh in on the moral questions, the questions of values, that divide us. That's why Rehnquist's deliberate renunciation of the role his conscience plays in establishing justice in America, for all the good it may ultimately do the democratic left, amounts to a civic failure. That's why the Court he leads is a lesser institution than Earl Warren's Court, for all its excesses. That's why, ultimately, Justice Holmes was wrong.
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Title Annotation:Supreme Court
Author:Moran, Terence
Publication:Washington Monthly
Date:May 1, 1992
Words:2754
Previous Article:Lie society; the cold war's over. But its legacy of lying remains.
Next Article:Turning Right: The Making of the Rehnquist Court.
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