Monday, October 18, 2004

If you covet fossilized constitutional law and orchestrated Supreme Court decisions, then cast a ballot for presidential candidate John Kerry.

In appointing Supreme Court justices, Mr. Kerry avowed during the third presidential campaign debate he would insist nominees affirm the Roe vs. Wade (1973) abortion decree and button their ears to any overruling. Indeed, the White House aspirant maintained his high court appointees would oppose reconsideration of any precedent that recognized a constitutional right, and Mr. Kerry amplified: “I’m not going to appoint a judge to the court who’s going to undo a constitutional right, whether it’s the First Amendment, or the Fifth Amendment, or some other right that’s given under our courts today — under the Constitution. And I believe that the right of choice is a constitutional right. So I don’t intend to see [Roe vs. Wade] undone.”

In contrast, President Abraham Lincoln decried the extraction of case-specific promises from Supreme Court nominees. In considering Salmon Portland Chase as chief justice, Lincoln hoped for an appointee who would sustain the constitutionality of the Legal Tender Act and the Proclamation of Emancipation. But he refrained from seeking voting commitments, and explained: “We cannot ask a candidate what he would do; and if we did and he should answer, we should only despise him for it.” Lincoln also understood the folly of slavish adherence to Supreme Court precedents, for example, the constitutional right of a slave owner to carry the wretched institution into territories of the United States announced in Dred Scott vs. Sanford (1857). As Lincoln elaborated in his first Inaugural Address: “[I]f the policy of the government, upon vital questions, affecting the whole people, is to be irrevocably fixed by decisions of the Supreme Court, the instant 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 that eminent tribunal.”

In flouting Lincoln’s advice and scorning his tutelage, Mr. Kerry’s election would mark the greatest menace to public confidence in the Supreme Court and enlightened constitutional law since President Franklin D. Roosevelt’s ill-conceived court-packing legislation in 1937. Justice requires the appearance of justice, as the Supreme Court lectured in Offut vs. United States (1954). That appearance is compromised when judges are precommitted to support or to oppose constitutional claims. An appearance of impartiality is displaced by an appearance of political partisanship. An appearance of judicial independence degenerates into an appearance of presidential manipulation. These worries fueled the Senate’s rebuff to President Roosevelt’s attempt to foreordain constitutional endorsement of New Deal legislation by expanding and then packing the Supreme Court with ardent New Dealers.

Mr. Kerry’s pledge to shield outstanding precedents creating constitutional rights from reconsideration might be undisturbing if cases were overruled as infrequently as Halley’s Comet appears. But they are not. The Supreme Court has reversed hundreds of precedents. And constitutional law has benefited from constant questioning. As Justice Louis D. Brandeis sermonized in Burnet vs. Coronado Oil & Gas Co. (1932): “[I]n cases involving the federal Constitution, where correction through legislative action is practically impossible, this court has often overruled its earlier decisions. The court bows to the lesson of experience and the force of better reasoning, recognizing that the process of trial and error so fruitful in the physical sciences, is appropriate also in the judicial function.”



Mr. Kerry wrongly insinuated a constitutional right established by the Supreme Court invariably advances a liberal agenda. A motorcade of precedents epitomized by Lochner vs. New York (1905) once celebrated a sweeping right to freedom of contract immune from social welfare regulation, such as minimum wage or child labor laws. These cases were swept aside by a tornado of Supreme Court overrulings between 1937 and 1941. The right of a white majority to oppress a black minority sustained in Plessy vs. Ferguson (1896) was nullified in Brown vs. Board of Education (1954). At present, the Supreme Court’s precedent in Buckley vs. Valeo (1974) upholds a First Amendment right of unlimited expenditures (as opposed to contributions) to influence the outcome of elections. The liberal agenda would rejoice if the high court reversed that holding. Ditto if the court reversed a slab of precedents prohibiting strict regulation of commercial advertising or speech, including the mass media’s glorification of violence and sex.

Time alone should not bar a reconsideration of Roe. Fifty-eight years elapsed between Plessy and Brown. Even though Roe may be intellectually indefensible as a matter of constitutional law, concerns for stability and the protection of settled expectations might militate against an overruling.

But democracy is sapped of vitality when great issues affecting the whole people, like abortion, are irrevocably decided by unelected grandees and responsibility lifted from legislators.

These arguments should be entertained by the Supreme Court with an open mind. Constitutional law is too important to be left to a president’s puppets.

Bruce Fein is a constitutional lawyer and international consultant with Bruce Fein & Associates and the Lichfield Group.

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