The Right Learns To Love Earl Warren

...People understandably lose interest in participating in local self-government when most of the decisions about educational policy are made by a federal judge...

...Decisions on abortion, busing, the rights of the accused, and other controversial issues had led these conservatives to decry a judiciary they believed was twisting the law to its own ends, running wild with a power never granted by the Constitution...

...Deukmejian hasn’t been alone in turning to the courts to pursue conservative goals...

...The public, in turn, sensed this lack of trust, or at least sensed thatitsinterestsand those of a democracy-fearing professional class were not the same...

...When was this meddling going to stop...

...It happens because of the nature of adjudication...

...Consider the case of Professor Owen Fiss of the Yale Law School...

...Instead, Deukmejian took a leaf from the book of Judge Frank Johnson...

...When extolling Justice Brennan, Fiss describes them as “expressive of...

...This happens whether the courts try to advance the interests of the politically powerless or of the wealthy...

...So in the early days of the Warren Court, liberals had to work hard to overcomeanaversion to judicial power...

...As judges devote themselves more and moreavidlyto improving the world, enforcing the law seems less and less important...

...What was the legal precedent for making government officials personally liable when their actions cause damage...

...Full-Court Repress Latter-day fans of Earl Warren may prefer to forget it, but in truth the history of judicial activism has a persistently conservative streak...

...In fact, Rehnquist might have learned some of his bad habits from Owen Fiss himself...

...Fiss described with admiration how Justice Brennan dropped a “puzzling” footnote, which appeared to retreat from his openaccess position...

...Although Brennan’s reasoning was “weak” and “artificial,” the decision he wrote had the advantage of “revolutionary promise”: “Like a diagram with footprints and arrows, it showed the way around all the...

...In 1977 Fiss wrote an article in the Yale LUMJVo urnal describing the “tactics” used by one of the most liberal members of the Court, Justice Brennan...

...They wrestle with determining the exact number of feet of urinal trough each prisoner is entitled to under the Constitution...

...When lawyers present elaborate justifications for extending free speech protection to nude dancing, can the public be blamed if it begins to doubt the seriousness of freedom of speech...

...How angry and desperate would they be if a Justice Rehnquist were to dominate public policy for 30 years...

...The mythology that drives many constitutional lawyers, of course, holds just the opposite to be true...

...In fact, judicial decisions often focus and magnify political disputes...

...Recently, for instance, conservative lawyers from the “public interest” law firm James Watt ran before coming to Washington sued to establish personal liability for the federal Bureau of Land Management officials who allegedly failed to protect private land from the damagedone by wild horses(the horses inthiscase symbolizing Big Government and liberal sentimentality...

...The even-handed, everyday application of law begins to seem pretty stale to a judge caught up in the hurly-burly of reform and the excitement of immediate accomplishment...

...Deukmejian, now the Republican candidate for governor, is heir apparent to Ronald Reagan’s California legacy...

...In the 1930s the Supreme Court extended the principle of states rights so far that it became fashionable (and still is in some circles) to dismiss the idea of federalism altogether...

...These are serious charges...

...Judicial activism is fundamentally undemocratic, implying that a few legal minds are better equipped to rule than everyone else...

...Progressives only need recall the 1930s when fury at a conservatively activistjudiciary led to Roosevelt’s court-packing plan...

...It makes those who depend onitelitist...

...It was only natural, then, that the Supreme Court’s decision in Roe v. Wade, establishing the right to abortion, infuriated the losers...

...The winner basks in the glory of constitutional vindication while the loser is correspondingly disgraced...

...The moral elevation required for a good free speech claim makes it helpful to view those favoring pornography laws as the point-men in a cunning plot to stifle all political dissent...

...Ironically, as conservatives increasingly embrace judicial activism, they risk eliminating the last vestiges of populism that remain in Reagan’s political movement...

...Liberals have had so much fun in court in recent decades that they seem to have repressed some dirty truths about the nature ofjudicial power...

...Fiss has long been an ardent defender of the Warren Court’s liberal breakthroughs, and legal scholars (including Fiss) know that many of them were justified by distorting, ignoring, or repudiating precedents...

...Those with honest reservations about abortion are thought of as papists intent on abolishing the separation ofchurchand stateor,at minimum, as misguided authoritarians who want to keep women barefoot and pregnant by violating their “fundamental” (it helps to be endlessly fervent) constitutional rights...

...The article criticizes Rehnquist for repudiating precedent, distorting the meaning of prior cases, substituting slogans for reasoning, and underhandedly creating his own precedents “out of asides...

...judicial statesmanship...

...In short, the dynamics of litigation encourage each party to want to punch the other on the way out of court...

...Or consider that the major argument liberals used to win the right to abortion was the concept of a woman’s right to privacy as an individual...

...obstacles to federal injunctive relief...

...Fiss writes: “He places apparently inconsequential statements unobtrusively in one opinion, only to use them several opinions later-when he makes them seem of central importance...

...He simply substituted violence against students for the poor medical treatment, squalid conditions, and other miseries in the mental institutions struck down by the courts at the behest of liberals...

...Indeed, imagination is not necessary...

...Court decisions flow from legal arguments that are often framed as uncompromising matters of principle, advanced by litigants who choose a set of facts that are themselves frequently extreme...

...Who elected these judges...

...Rights and Wrongs A third truth about judicially imposed reform is that it distorts public debate by concentrating attention on immediate, concrete results...

...Here was a champion ofjudicial activism-a man who used the courts to help bring down an entire administration-saying that, well, maybe judges can’t be so trusted after all...

...This results not from the politics of those usingthecourtsat themoment but from the nature of the adjudication itself...

...A similar disincentive to democracy was provided by Elrod v. Burns, which struck down patronage systems as violating the First Amendment and dealt a blow to the political parties and the political accountability that are nourished by patronage...

...The lawsuit itself is highly visible, and its methods-explicit findings of fact and elaborate justifications-heighten the tendency to rivet attention on the nature of the disagreement...

...In fact, before long it may be the conservatives who routinely press for social change through the courts and the liberals who embrace theories ofjudicial restraint...

...Even when the public sentiments don’t hint at making these fears a reality, it is believed necessaryforthejudiciaryto thwart the popular will...

...The interpretation is now used as a basis for the Human Life Bill, an effort to force reversal of the Supreme Court’s famous decisionestablishing the right to abortion...

...He attacked the precedent “by indirection...

...Anyone who thought that the “landmark” abortion decision would end political debate on this moral dilemma was dreaming...

...When criticizing Justice Rehnquist, Fiss labels such tactics “failings of craft...

...Too much is at stake and too many of President Carter’s 260appointments to the federal judiciary (the most any president has made) will be around for a long time...

...Fiss explained, “In retrospect it appears that Justice Brennan madetheconcession to obtain Justice White’s vote...

...Constitutional interpretations constantly direct public attention to what is debatable or unsettled...

...It may surprise liberals, but the history of judicial activism is persistently conservative...

...In a lawsuit, one side wins and the other loses...

...Where Johnson had ruled that mental patients could not be confined in an institution unless they received proper medical treatment and decent livingconditions, Deukmejian asked Californiajudges to rule that students couldn’t be required toattend school unless they received enough police protection against violence to ensure they would get an adequate education...

...This and much else made Justice Frankfurter and many of his liberal followers quite skeptical of judicial activism...

...Court-imposed reform drives a wedge between reformers and the governed...

...In the process, it is normal, of course, for the litigator to convince himself of the same thing...

...Cox’s opposition to the foolish amendment is legitimate, but there was something laughable about the portentous tone of his particular arguments...

...Liberal law professors have been especially adept at providing such rationalizations...

...If you are undertaking a sustained strategy of reform by adjudication you must first convince yourself that people are not able to govern themselves...

...Judges agonize over the proper percentage of each race that should attend public schools...

...In fact, a serious reconsideration of the wisdom of heavy reliance on judicial power to achieve a better world, whether liberal or conservative, has been put off too long...

...Their faces were rubbed in a 73-page repudiation of their profoundly felt position on what they considered to be the moral imperative of protecting fetal life...

...Positions are presented forcefully by professional advocates...

...The Defense Never Rests The second truth about judicial policy-making is that it often intensifies social conflict...

...It has long been fashionable to argue that the public can’t be expected to appreciate certain sophisticated freedoms that require the subordination of immediate self-interest...

...Then courts will be asked whether a patient’s unpaid labor in a mental hospital is treatment or slavery...

...Is it clearly wrong to censorpoliticaldissent?Then a court will be asked to extend First Amendment protections to nude dancing...

...Subjected to a constant barrage of novel constitution81 interpretations, the publiccomes to believe that nothing is settled, nothing is solidly agreed upon...

...Now, after years of close association with judicial activism, liberals may have to swallow their pride and return to their earlier position...

...Some justify judicial control over broad areas of social policy by claiming the political process tends to exclude high-level moral discourse...

...To win a desegregation lawsuit, it is necessary to convince thejudge that unbalanced schools didn’t happen inadvertently, but by the design of school officials who were racists...

...Since politics is rife with such opportunities, this rationalization allows for a rather generous exception to the principle of self-government...

...It’s also common for the public to begin holding the judicial process and even the Constitution in disdain for what it perceives as ridiculous legal interpretations...

...A deficiency that, needless to say, law professors and judges, squinting at small print in heavy treatises and briefs, think themselves particularly well-suited to redress...

...Johnson had made a practice of seizing control of Alabama’s prisons and mental hospitals, demanding that theirconditions conform to standards set out in “institutional” lawsuits...

...Fiss recently coauthored an article in The New Republic attacking Justice William Rehnquist’s conservative judicial activism...

...Court-imposed reform drives a wedge between reformers and the governed...

...This is what conservatives have been asking in the years since the Warren Court, and it is what you would expect from the George Deukmejians of the nation...

...The first truth about such power is that it is elitist...

...Robert F. Nagel teaches at the University of Colorado Schoolof Law...

...Some reformers still believe that intractable moral disagreements somehow can be put to rest by an emphatic pronouncement by the Supreme Court in a “landmark case...

...But in the exciting rush to protect everyone’s right not to be “punished” for his beliefs, the underlying preconditions for democratic self-government seemed unimportant...

...Otherwise, what justifies bypassing the political process...

...Consider, for example, the expansive interpretation of the Fourteenth Amendment that during the 1960s allowed liberals to achieve voting rights reform...

...It was evident as long ago as the Court’s extraordinary conclusion in Dred Scott that slaves could not be persons...

...The liberal strategy of broad-scale reform by judicial decree had encouraged liberals to view a large segment of the governed as not worthy of trust...

...Rehnquist might be guilty of Fiss’s accusations, but he also might have picked up his somewhat seamy tactics from the Court that Fiss and other liberal academics so admire...

...HOW THE RIGHT LEARNEDTO LOVE EARL WARREN by Robert F. Nagel At first glance, California Attorney General George Deukmejian and Alabama federal judge Frank M. Johnson have about as much in common as Barry Goldwater and George McGovern...

...It is thought, for example, that the public, dismayed by rampant public pornography or the rules that restrict police search, foolishly will prefer giving up their constitutional rights for reasonably decent, safe streets...

...This process of defining and protecting rights is imperative, so that concern for secondary or long-run considerations tends to fade...

...Similarly, liberals’ theoretical arguments for expansive use of judicial power (arguments that helped unleash the courts in areas such as apportionment reform and ‘environmental protection) were used recently to argue forjudicial boldness in voiding the extension of the ratification period for the Equal Rights Amendment...

...and thus to create a broad spectrum of support...

...Lawsuits, after all, are usually resolved by labeling someone’s interests as ‘‘rights.’’ If a right has been violated, the victim naturally must have-“is entitled to”-relief...

...Adjudication in federal courts is the imposition of a decision by unelected officials...

...Those liberals who are devoted to imposing reform through judicial decree will not give up easily their special relationship with the federal courts...

...Fiss recounts that Brennan wanted to find a way to increase the public’s access to federal courts despite an earlier Supreme Court decision that limited such access...

...If the New Right seems mean-spirited and intolerant, liberals should consider that it includes groups that have been on the losing end of major constitutional lawsuits for three decades...

...Repudiated on school prayer, busing, police practices, and abortion, conservatives have felt abused, ignored, and demeaned...

...This obsessive concern for protecting individual rights obscures the importance of the less tangible needs of the political system...

...Whether these are genuine sentiments or employed only as strategy, the political toll for liberals has been heavy...

...At the extreme, this emphasis on immediate results can degenerate into profound cynicism...

...Liberals should contemplate their reactions if put in a similar situation...

...Judges, the reasoninggoes, must be active in such areas for fear that the short-sighted public will run amok, censoring political views or dispensing with adversary trials...

...Nor was the Warren Court above the use of slogans-even the one that Fiss criticizes Rehnquist for indulging in (“one man, one cell”) was a takeoff on the Warren Court’s famous “one man, one vote...

...Anyambitious effort to use adjudication to achieve progress, no matter how defined, creates apowerful emotional need to rationalize undemocratic decisionmaking...

...But there is considerable awkwardness in Fiss’s making them...

...Conservatives have not been known for a desire to steal the thunder from their liberal adversaries, but it’s happening with some frequency in federal court nowadays...

...Similarly, the courts have extended the right against self-incrimination to a point that some argue that the police are prevented from engaging in even informal conversations with suspects...

...Eventually, heavy reliance on judicial decisionmaking undercuts social cohesion...

...Other liberals also seem to be developing a fastidiousness when faced with the prospect of free-wheeling judicial power exercised by conservatives...

...Brennan, said Fiss, “chose to bore from within...

...But when Deukmejian was looking around for a big issue to make a name as attorney general, he didn’t follow the path of the dominant conservative thinkers of recent years, the men whose opposition to liberalism so often had taken the form of attacks on court decisions handed down by liberal judges...

...Whose Cox is Gored...

...The exodus of blue-collar workers from the Democratic party that in 1980 helped elect Reagan was in response partly to the hostility directed at them by some of the “enlightened” professional class that dominated the party...

...Does everyone agree that slavery is immoral and illegal...

...Archibald Cox, Harvard law professor and chairman of Common Cause, recently told tile House Judiciary Committee that the proposed balanced budget amendment to the Constitution would thrust the courts into policy areas where judges lack experience, expertise, and legal standards...

...By now the answer should be obvious: the efforts of liberal attorneys to make federal law enforcement officers pay damages to those whose civil rights they had abused during illegal searches...

...In demanding programs to prevent violence in schools, Deukmejian rested his case on the same legal theories Johnson had used--constitutional provisions involving due process, cruel and unusual punishment, and equal protection under the law...

...In the mid-I930s, the Court engaged in a spirited campaign to stop the economic reforms of the New Deal, declaring several of Franklin Roosevelt’s alphabet agencies (the AAA, the NRA) unconstitutional...

...Judicial policy-making is thus often foolishly concrete and short-sighted...

...But if conservatives prove successful in wooing the judiciaryin coming years, liberals can be expected to dust off their longforgotten criticisms of judicial policy-makingrediscovering wisdom in the arguments liberal jurists like Frank M. Johnson once so firmly rejected...

...But this onlyconfuses the theater of adjudication with the reality of social conflict...

...Another influential theory of judicial activism holds that the public simply can’t be trusted with decisions that might enable a majoritytoexclude a minority from the political process...

...Johnson, whose landmark civil rights decisions were pivotal events in the desegregation of the South, is the quintessential liberal judicial activist, an inspiration to a whole generation that sought social justice through the courts...

...Earl Warren may end up beinga role modelforthe Right after all...

...In the years since that decision the anti-abortion forces have gained political strength and tried every means imaginable to limit the right to abortion-shrewdly drawn homicide statutes, parental and spousal consent provisions, funding restrictions, and so on...

...Some conservative legal theorists who oppose abortion suggest that privacy be used to protect the traditional family...

...Now Deukmejian is pressing for the same kind of judicial authority, this time to protect school children from violence...

...After 30 years ofjudges imposing reapportionment plans, devising education programs, and determining the specifications of prison cells, the irony of Cox’s remarks was unmistakable...

...Though we’re not yet at thestage where liberals routinely urgejudicial restraint, signs are developing...

...He then described how White later seized on Brennan’s footnote as being of central importance to the resolution of a subsequent case, just as Brennan had hoped when he first inserted the unobtrusive footnote...

...He cautioned that the judiciary should not intrude into executive and legislative domains (i.e., the budget), and he intoned dire warnings about trivializing and politicizing the Constitution...

...It hardly need be said that such attitudes, whether starkly expressed or not, are fundamentally undemocratic, implying that a few legal minds are better equipped to rule than everyone else...

...Dependence on judicial decision-making helps make political debate nasty...