Constitutional Opinions/Th.e Meese that Roars

...This is a spirit of allegiance to "due process" at whatever cost and to "rights" understood in an abstract and virtually limitless way...

...These aspects of the imperial judiciary can be attacked through a strategy consisting in part of raising these issues in litigation...

...But they can also be attacked through legislation designed to curb remedies or to limit standing- both matters which, to a large degree, clearly fall within congressional control...

...Should it not at some point be brought to an end...

...Apart from its claims to supremacy in constitutional interpretation and its stretching of the Constitution in making its interpretations, the imperial judiciary manifests itself most clearly in its exercise of vast power through the mechanism of equitable remedies (combined with class actions): It is under the rubric of remedying violations of rights that judges exercise open-ended and absolute control over school systems once found to have discriminated, or not to have vigorously enough integrated...

...The most obvious means is through judicial selection...

...Confronting the imperial judiciary requires first of all confronting the overblown claims made on its behalf, in particular the claim, made in the Little Rock School case in 1958 by the Supreme Court, that "the federal judiciary is supreme in the exposition of the law of the Constitution...

...But sound judicial appointments must be supplemented-indeed, preceded-by a coherent and forthright articulation of constitutional principles by the Justice Department itself...

...Much of contemporary constitutional law thus uses the Constitution merely as a point of departure...

...One presumes that Mr...

...The spirit of the litigious society is that of a society of plaintiffs...

...Thus Mr...

...In late January, he stated that its guiding purpose should be to do what FDR did with the policies of the New Deal: "to institutionalize the Reagan revolution so it can't be set aside no matter what happens in future presidential elections...

...It is a matter of a long train of abuses and usurpations which, if they do not pursue invariably the same object, do rest on an underlying understanding of constitutional law as a vehicle for social justice and "moral evolution...

...he will have to shape a set of policies that look toward a fundamental redirection of the course of constitutional interpretation, the role of the courts, and the character of the legal system...

...Yet the Justice Department was unwilling to argue that Roe v. Wade was wrongly decided when it appeared before the Court in 1983 to urge (unsuccessfully) the upholding of laws passed by the city of Akron and the state of Missouri regulating abortions in a variety of minimally restrictive ways...

...Meese himself, stressing the importance of sound judicial selections, commented in an interview that "the judiciary is probably conceptually the most powerful arm of government because it has the last word...

...Meese has shown no ill effects of his ordeal...

...Since Senator Metzenbaum in the same breath praised Justice O'Connor for her refusal, at the confirmation hearings, to answer questions on past cases or constitutional doctrines ("I think she's right on target...

...But Mr...

...The notion of taking on modern constitutional law, the imperial judiciary, and the litigious society may seem rather implausible...

...Not the least benefit of reversing the tide would be to refute the notion, so deadly to self-government, that we are swept along by tides of history beyond our control...

...G. Gordon Liddy-may have heartened Edwin Meese III during the difficult year between his nomination and his swearing in as Attorney General...

...Such a project would involve not only reshaping constitutional doctrines, but also restoring the branches of government-and particularly the courts-to their proper role in the constitutional scheme...

...There are many other possible lines of approach...

...it was around then that President Bok of Harvard helped legitimize the assault on the litigious society...

...Such an effort- though undoubtedly controversial- would make it in the end more difficult for the Reagan Administration to be accused simply of mean-spiritedness or opportunism in its various efforts at litigation and legislation...

...But when President Reagan has written, "Make no mistake, abortion-on-demand is not a right granted by the Constitution," and when he has endorsed various congressional efforts "to reverse this tragic policy," it is a bit ridiculous for the Justice Department to fail to argue for reversal, when it has the chance, before the Supreme Court...

...Meese may want to begin confronting the phenomenon of the litigious society...

...Virtually everyone outside the organized Bar agrees that our tort law, our malpractice law, and our product liability law (to name three) do not produce much in the way of justice or social efficiency...

...The advantage of focusing at least some attention on the broad problem of the litigious society is that this issue is less controversial than the Constitution or the courts...

...Roe v. Wade is the capstone of contemporary constitutional interpretation, not just because of its great practical effect, and not because it is bad constitutional law, but because, as John Hart Ely of Stanford Law School has said, "it is not constitutional law and gives almost no sense of an obligation to try to be...

...Reynolds that the Constitution requires that government be color-blind, he may want to introduce legislation repealing the 10-percent minority business quota for a series of public works programs approved by Congress in 1978 (and upheld by the Supreme Court in Fullilove v. Klutznick...

...Rather than simply add another wing to this edifice, Mr...

...This of course does not preclude making, in a lawyerly way, arguments for why the statute can be upheld even if the Court is unwilling to overrule Roe v. Wade...

...he does (in the words of the Wall Street Journal) "over the federal department most actively engaged in implementing President Reagan's political and social philosophies...

...Meese may at least want to foster discussion of how to reduce "the burden of law, lawyers, litigation, and legal fees on our society," in the words of a recent report of the Committee on the Next Agenda, a committee that included former Reagan adviser Martin Anderson and Heritage Foundation President Edwin Feulner...

...But the spirit that lies behind developments in these areas, and behind the growth of the litigious society generally, also animates contemporary constitutional interpretation and the imperial judiciary...

...In the preface to that book, Anthony Lewis crowed that "we are all judicial activists now": Old-fashioned views of the judicial function were dead...

...The only desideratum of such a commission is that it be headed by a non-lawyer...

...and it was then that one could begin to wonder whether Anthony Lewis, in echoing Richard Nixon's 1971 statement that "we are all Keynesians now," would look as short-sighted from the perspective of the 1990s as Mr...

...James Q. Wilson or Walter Berns come to mind...

...How can the Justice Department contribute to a reformation of constitutional law...

...Meese has great hopes for that second term...

...Would it not be more reasonable to try to erect some small barriers and start some counter-eddies...

...If Attorney General Meese agrees with Mr...

...Meese's Justice Department may well choose to start on a project of major constitutional renovation...

...Meese, toughened by his own experience at the hands of liberal senators, will not be impressed by their complaints about "ideological"-that is to say, constitutional-"litmus tests...

...Meese might choose to issue a series of "opinions of the Attorney General" laying out the Reagan Administration's understanding of basic constitutional principles in a variety of areas such as the separation of powers, federalism, and religion...

...And it was about the same time that a book entitled The Litigious Society appeared with its argument that such a situation was more or less inevitable in the-modern world...

...Judge Robert Bork, in a recent dissent, argued that the courts should "renounce outright the whole notion of congressional standing," unsupported as it is "in the Constitution, in case law, in logic, or in any proper conception of the relationship of courts to democracy," and resulting as it will in "an enormous and uncontrollable expansion of judicial power...

...Meese might remind himself of Senator Metzenbaum's amazing response to the suggestion that President Carter also sought judges who shared his views: "I don't think so," Metzenbaum said...

...let his Justice Department uphold that position when the constitutionality of a Pennsylvania abortion statute comes before the Supreme Court next fall...

...It would, of course, be improper to ask a prospective judge to commit himself to vote one way or another on a particular case...

...All three are part of a tide that has been running strongly for quite a while...

...But that does not necessarily imply getting more liberals than conservatives because there's no correlation...

...Meese and President Reagan should probably resist the temptation to test the professed belief of liberals that "only the necessary intellect, temperament, and integrity" should be relevant in judicial appointments (as the Boston Globe has stated) by appointing an intelligent, temperate, and honest constitutional defender of, say, Plessy v. Ferguson...

...he has made impressive appointments-notably, the promotion of William Bradford Reynolds to Associate Attorney General and the selection of TAS contributor Terry Eastland as Director of the Office of Public Affairs...

...Is busing an appropriate remedy...

...This will require more boldness than lawyers are comfortable with...

...The Administration could do far more, in this and other instances, to highlight congressional abdication of its responsibility, and-by proposing legislation on remedies, on standing, on disputed issues of statutory interpretation-to put the ball of policy-making more clearly in Congress's court...

...That may be so most of the time, in practice...

...Christopher Wolfe of Marquette University has described the theory and practice of contemporary constitutional interpretation as taking the Constitution out of constitutional law...

...For as Attorney General, Mr...

...Predictably, therefore, it was in the Court's 1983-84 term that the first glimmerings of constitutional counter-revolution began to appear...

...For Congress has an obligation to live up to constitutional standards as much as do the other branches...

...This could be significant, for Mr...

...They were looking for more blacks, Hispanics, and women, and they were effective...

...In fact, the polemics of advocates on both sides are probably more closely reasoned than the majority of judicial decisions in this area- because so much of our constitutional doctrine (and of our interpretation of certain statutes, like the 1964 Civil Rights Act) now resembles a rambling, disjointed, Byzantine edifice that does not allow close or coherent reasoning...

...In fact, Congress bears much of the responsibility for the imperial judiciary, not only because of a failure to exert itself to correct statutory interpretations or to limit remedies, but also because of a positive inclination to shirk its duty by, say, providing for "citizen standing" in various pieces of legislation so as to slough responsibility for control of the executive onto the courts...

...Nixon now looks from the perspective of the 1980s...

...But Mr...

...But in order to institutionalize the Reagan revolution, Mr...

...Such a thought may even have inspired him to remain unbowed in the face of the Democratic taunts at his final Senate confirmation hearings that he was "beneath the office" of Attorney General, and then, once confirmed, to take vigorous command of the office...

...This would make available an alternative body of constitutional interpretation to that of the courts in recent years, one which might guide public understanding and which the courts might gradually move toward embracing...

...but it would be an important contribution to the public discourse-and quite possibly to future judicial decisions-if the Department generally used its briefs to articulate fundamental constitutional principles clearly and coherently...

...The tide of judicial activism may now have crested, but it will not be reversed without bold actions by Mr...

...Respected constitutional scholars such as Gerald Gunther have decried this claim of "judicial exclusiveness," but the notion that it is primarily or even solely up to the judiciary to interpret the Constitution has become deeply embedded not only in the law schools but in our public discourse...

...such an effort would make it more difficult for a New York Times reporter-in a news story, not an opinion piece-to claim (incredibly) that judicial decisions in the area of affirmative action "are far more closely reasoned than the polemics of politicians and advocates on either side...

...Tides can reverse quite suddenly, and in the social world, it is often when a tide is judged irreversible that it has in fact reached its high-water mark...

...Meese...

...More generally, Mr...

...Attorney General Meese recently said in a television interview that "Roe v. Wade is bad law...

...This phenomenon is so large and complex that it does not lend itself to a clear policy agenda...

...In his first few weeks in office, he has announced initiatives in areas ranging from school discipline to drug enforcement...

...Meese may want to make suggestions along the lines proposed by this committee-opening up some legal services to competition from non-lawyers, greater use of mediation and conciliation instead of trials, restrictions on federal habeas corpus appeals, charging private parties the full court costs of their lawsuits, and narrower drafting of federal legislation...

...Finally, in his spare time, Mr...

...This phenomenon is not just a matter of a few sloppy decisions or stretched interpretations...

...In fact, should he feel himself wavering under the onslaught of law professors and senators marching under the banner of judicial integrity, Mr...

...And the exercise of judicial power has been made far easier by the enlargement of the number and kinds of cases that the courts take it upon themselves to decide, thanks to the liberalization of doctrines of standing and of case and controversy requirements...

...Indeed, the effort to set forth constitutional principles should not be restricted to litigation...

...In 1983, after years of worrying about the counter-revolutionary threat of the Burger Court, a book of essays by law professors appeared finally admitting-or rather announcing- that the Burger Court consisted of "a counter-revolution that wasn't...

...Meese has himself raised the possibility of "justice system impact statements" prepared by the Justice Department to alert Congress, and the public, to the implications of proposed legislation...

...it results in an inclination to meddle endlessly with the world as it is in the hope of arranging everything just so-without considering whether things will work out just so...

...Now, one incidental benefit of the Reagan Administration's advancing its own constitutional interpretation would be the implicit repudiation of the claim of judicial paramountcy...

...Meese should be emboldened to insist on the propriety of looking at prospective judges' previous writings and opinions, and of asking them to comment on past decisions, particular doctrines, or general modes of interpretation...

...With the further influence that will come as chairman of the Cabinet co-ordinating council on domestic and social policy, Attorney General Meese should be a man to be reckoned with in the Reagan Administration's second term...

...at the end of the long journey from that point lies a host of decisions that have little to do with the Constitution, the intent of its framers, or the meaning of its language, and that have everything to do with various law professors' views of equality, social policy, and individual autonomy-views that have not on the whole been ratified by the American people...

...Let congressmen then explain to their constituents why they prefer to have unelected judges govern...

...Perhaps the best strategy would be to constitute a presidential commission on the subject in order to give it a thorough treatment and to suggest appropriate federal and state actions...

...But this claim should also be countered explicitly, by reiterating Lincoln's explanation in his first Inaugural: While Supreme Court decisions must be binding upon the parties to a suit, and while those decisions are entitled to high respect by the other branches, "the candid citizen must confess that 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 instance they are made in ordinary litigation between parties in personal actions, the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of the eminent tribunal...

...and he has spoken confidently and forthrightly of his plans in a variety of areas, including criminal justice, civil rights law, and legal services for the poor...

...Meese will have to move beyond the energetic pursuit of certain discrete policy goals...

...But it cannot be allowed to be so always, as a matter of right: As Madison said in 1788, this would make "the Judiciary Department paramount in fact to the legislature, which was never intended and can never be proper...

...While this may reflect an excessive confidence in one administration's ability to control the future, Mr...

...To answer such a question would destroy the impartiality of the jurist when a case comes up in the future"), Mr...

...Meese is well placed to play a major role in institutionalizing the Reagan revolution, presiding as William Kristol teaches at the Kennedy School of Government of Harvard University...

...Indeed, the increasing practice of congressional lawsuits against the executive is the most manifest instance of congressional abdication...

...A commitment to "de-litigation" would therefore go hand in hand with the vision of an opportunity society consisting of self-governing citizens taking responsibility for their affairs...

...Meese should welcome the chance to have the Reagan Justice Department make the case for self-government against government by the judiciary, as it makes the case for the Constitution of the Founders against the constitutional doctrines of the law professors...