The Meese factor

Silver, lsidore

THE MEESE FACTOR PACKING THE LOWER COURTS Attorney General Edwin Meese's persistent and wide-ranging attacks against the Supreme Court are aimed not only at the presumed excesses of that body...

...Thus, significant issues of the limits of government power are treated with all the seriousness of cocktail-party chatter...
...For instance, Congress may have to address specifically the question whether some gross civil rights violations are insulated from attack where state laws provide a theoretical, albeit limited, remedy...
...Claims of blatant deprivations of constitutional rights especially against police and corrections officers are often dismissed by Reagan-appointed district court judges on tortured, but not clearly incorrect legal grounds...
...Furthermore, because the plaintiff was foolish enough to reply to the state court dismissal of the criminal charges against him, he was also socked with his opponents' attorneys' fees for bringing "unfounded" litigation...
...After all, Civil Rights Acts reflect a deep congressional commitment to justice and fairness and they may have to be clarified...
...There are other ways of skinning the constitutional cat...
...THE MEESE FACTOR PACKING THE LOWER COURTS Attorney General Edwin Meese's persistent and wide-ranging attacks against the Supreme Court are aimed not only at the presumed excesses of that body (even in its more conservative, recent incarnation), but at the development of at least fifty years of constitutional interpretation which has applied the Bill of Rights to the states...
...Increasingly, these judges are assessing attorneys' fees against plaintiffs in violation of the spirit, if not the letter, of the law...
...The law in this area is quite complex, partly because of Justice Rehnquist's distaste for that provision and Justice Powell's fear that a broad interpretation would intrude into state law...
...Ordinarily, a federal court would consider itself bound by that decision, but this form of federalism was simply disregarded without explanation...
...The "record" of recent Reagan appointees in applying these less than lucid mandates of 1983 (any opaqueness derives not from the law itself but from its interpretation) reveals certain patterns, probably unconscious ones...
...Since law is language, clarification has its limits...
...In another recent case, an appeals panel accorded no significance to the fact that a state court judge had found that a civil rights plaintiff had been arrested without probable cause that he had committed a crime...
...And since the president can submit candidate after candidate and suffer rejection after rejection, the committee will have to use its weapons, public information and political persuasion, to help insure that judicial nominees show some inclination to respect not only the Constitution and laws of the United States but the judicial process itself...
...This problem was created by a Rehnquist opinion which has encouraged judges to find that significant deprivations of liberty are simply not actionable in federal court at all...
...1983, the statute that made state and local officials liable for damages for violation of constitutional rights...
...The administration has shrewdly recognized that the lower federal judiciary is the real battleground for civil liberties and civil rights...
...ISIDORE silver (Isidore Silver is a professor of constitutional law and history at John Jay College of Criminal Justice and the author of Police Civil Liability [Matthew Bender...
...The report states (according to a New York Times account) that this administration considers it a priority to "set the agenda for domestic policy in the next two years" in order to redress the Court's "erroneous judicial reading" of the constitutional balance between federal power and states' rights...
...But any attempt to return civil rights and civil liberties to the ambit of local law and law enforcement would insure inconsistency, if not outright hostility toward the notion that all Americans are protected by the Bill of Rights against all governmental action...
...they are brief, pithy, and even blackly humorous...
...The Meese strategy is to endorse nominees to the lower courts who exploit such confusion by various devices...
...The Burger Court has often found it difficult even to state an opinion which unequivocally commands the support of a majority of the justices...
...It would not even be amiss for the administration, especially the Attorney General of the United States, to demonstrate such respect...
...On appeal, these suits are often reinstated, over the dissent of "conservative" jurists who write glib essays which eschew any legal analysis and ignore well-settled precedents...
...The struggle need not be to convince an unsympathetic Congress to water down civil rights laws...
...102: Commonweal...
...For instance, one judge recently argued that prison guards who beat an inmate and later threatened him to deter him from bringing a civil rights suit against them were not in violation of the Constitution with regard to the threats since, after all, the inmate ended up suing...
...Their comments read like George Will epiphanies...
...After all, few cases reach the Supreme Court, and, often, its decisions are unclear or so tied to the facts of a particular case that they are hard to apply to other situations...
...The latest blast has come in the form of a Meese-headed cabinet committee report...
...Nor need it center around the nomination of controversial Supreme Court appointments which will engender high-visibility battles...
...In scholarly splendor, I intensively read civil rights decisions, especially those interpreting 42 U.S.C...
...Perhaps the Senate Judiciary Committee could undertake a study of the frequency of this phenomenon, solely for the purpose of informing itself, the Senate, and the rest of us of the extent of flippant lawmaking...

Vol. 114 • February 1987 • No. 4


 
Developed by
Kanda Sofware
  Kanda Software, Inc.