- The Washington Times - Tuesday, July 18, 2000

Here we go again in a presidential election year. Both the Republican candidate, Gov. George Bush, and his Democrat opponent, Vice President Al Gore, are touting the race as a defining moment in the constitutional law expounded by the U.S. Supreme Court.

According to the presidential aspirants and many spectatorial pundits, the winner will fill between two and four high court vacancies and thus dictate the outcomes of controversial constitutional issues, which are characteristically decided at present by fragile 5-4 or 6-3 majorities or by plurality opinions: abortion rights; freedom of religion; separation of church and state; obscene or indecent speech; campaign finance restrictions; distinctions based on sexual orientation; affirmative action; federalism; the death penalty; and government investigatory encroachments on privacy. But these quadrennial forecasts about turns in the Supreme Court are unconvincing, like the 1848 revolutionary turn in history that failed to turn. Not only are the projected vacancies problematic, but the voting of the justices generally echos prevailing political, cultural and ideological orthodoxies irrespective of the appointing presidents. The rare exceptions prove the rule, and even the exceptions only marginally anticipate or thwart a social consensus.

Rumors of Supreme Court retirements are as predictable as the flowers that bloom in the spring despite the regularity of their falsity. Age is a notoriously unreliable leading indicator, demonstrated by the probably apocryphal tale about Supreme Court Justice John Marshall Harlan. As the most junior member of the exalted nine, he was tasked to approach doting Justice Stephen J. Field, and gently to hint at the propriety of retirement or resignation. As a prelude to the joyless overture, Justice Field was reminded of the identical labor he had performed with eclat during his salad days on the bench in convincing the semi-senile Justice Robert C. Greir to renounce his cherished robes. The reminder stirred Field to a tart and belligerent retort that left Harlan speechless: "Yes, I remember, and a dirtier day's work has never been done."

President Franklin D. Roosevelt confronted a geriatric high court upon his initial Inauguration in 1933, the much disparaged "Nine Old Men." Yet his first term witnessed no vacancies. And nothing in either tradition, recent history, or the health of the Supreme Court incumbents today justifies the prognostications of two to four appointments by either Mr. Bush or Mr. Gore. The overwhelming majority of justices revel in their work and esteem, and would exit their exhilarating cloister with great reluctance. Lawyers know no more thrilling capstone to their careers.

In any event, two to four appointments are unlikely to push the Supreme Court outside mainstream thinking, no matter the expectations of the president, the Senate, and special interest groups. As Justice Benjamin Cardozo recognized in "The Nature of the Judicial Process," "The great tides and currents that engulf the rest of men do not turn aside in their course, and pass the judges by." Thus, the Supreme Court has never seriously frustrated sustained majoritarian sentiments, even during the New Deal and the Great Society ebullitions of Chief Justice Earl Warren. The former received tardy constitutional blessings in National Labor Relations Board vs. Jones & Laughlin Steel Corp. (1937) and West Coast Hotel vs. Parrish (1937) before a single Roosevelt appointee ascended to the high court. The collective mind of the justices simply bowed to the prevalent economic orthodoxies of the times and made constitutional law bend to the prejudices.

Which of Chief Justice Warren's sportive jousts with constitutional text and precedents was most outlandish and ill-reasoned is debatable; but the police warnings required to interrogate suspects by dint of the Fifth Amendment privilege against compulsory self-incrimination proclaimed in Miranda vs. Arizona (1966) enjoys a strong claim to the dubious crown. It is regularly trotted out by Warren Court detractors as a prime example of wrongheaded judicial activism. But Miranda was no wild-eyed aberration from the conventional ecstasies of the Great Society architects. It evoked some initial criticism, and a mild rebuke in the Omnibus Crime Control Act of 1968. And long after the chief justice had shed his robes in 1969 and the high court became dominated by Republican presidential appointees, the precedent resisted serious clipping. Indeed, last month in the Dickerson case, Chief Justice William Rehnquist, who was initially appointed an Associate justice by President Richard Nixon and was elevated to chief justice by President Ronald Reagan, wrote for a 7-to-2 majority to affirm the Miranda precedent. And the chief justice was urged to do so by a majority of the law enforcement community, including Attorney General Janet Reno.

The high court invented a constitutional right to an abortion by a 7-to-2 vote in Roe vs. Wade (1973), but the decision generally echoed the moral and ideological currents of the time. State laws were toppling abortion restrictions like tenpins, and then California Governor Ronald Reagan had signed a virtual statutory carbon copy of Roe in 1967. The central holding of the constitutional precedent was affirmed by the Supreme Court in the 1993 Casey decision, and the decisive joint plurality opinion was authored by two Reagan appointees and one appointee of his Republican successor President George Bush: Sandra Day O'Connor, Anthony Kennedy and David Souter, respectively.

Judicial independence does not mean independence from typically invincible conventional wisdom, whether it is profoundly misconceived, counterfactual and ahistoric. An intellectually powerful and persuasive justice may win a few constitutional law battles against popular prejudices, but the latter will ultimately win the war. More than two centuries of constitutional law sport no exceptions.



Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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