Court and Constitution: A Talk with Anthony Lewis

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The Crimson recently spoke with Anthony Lewis, The New York Times Supreme Court reporter from 1957-64 and the author of Gideon's Trumpet and Make No Law, books which describe landmark Supreme Court cases. Excerpts from that conversation follow:

Q: What sort of criteria do you use when selecting the cases [you write about]? In Make No Law, you refer to [the Sullivan case] as "a landmark of freedom," Is that the general intent when you're seeking these out, to make Americans feel good about their judicial system?

A: It wasn't explicit, maybe it's implicit. I have a rather reverential feeling about the Constitution and the judges who interpret it, so perhaps that was the subliminal intent.

Q: Is part of the mission behind your books educational? You devote large sections of the books to historical preview... Most Americans assume, for example, that the Bill of Rights extended to the federal and the state level. Are you trying to show them different?

A: ...I didn't have a mission in writing Gideon. I wrote Gideon because I was covering the Supreme court for the New York Times and the president of Random House, Bob Bernstein, pressed me, and pressed me, and pressed me, to write a book about the Supreme Court. And as I said earlier, I don't think books on a generalized topic are worthwhile; at least, I don't want to write them.


...And then he said to me, well maybe you'd like to write a children's book, we could use a children's book. And when the Gideon case came along, and I read [Gideon's] letter, I thought this would make a good beginning for the children's book, and I began looking into it, and it just turned into the book. There wasn't any sort of calculation about my mission to educate the American public.

Q: You've written with regard to the Constitution that "Precision is the enemy of permanence." Do you believe that the Constitution has survived principally or in part because it's vague?

A: Yes, I certainly do. Marshall said so in McCullough v. Maryland. He said that if the framers of the Constitution had tried to anticipate every conceivable problem that would arise and put something in the text to deal with it, it would have had the prolixity of a legal code. And of course the circumstances would change, and you then would have to change the code, as all codes are changed, and it wouldn't be permanent. By definition, it couldn't be permanent.

...But we had the advantage in this country of sufficient faith, I would say barely sufficient faith, in the extraordinary group of men who put [the Constitution] together. You couldn't possibly do that now. It's inconceivable to me that you could have an American Constitutional convention today and approve a document as vague as that. People would say, "Hey, what do you mean here? Does that allow abortion or not?"

Q: I got the sense from reading Make No Law that Americans have enjoyed less freedoms throughout our history than we would suppose.

A: This is certainly true at moments of tension...Anything that raised ideological hackles found a very repressive reception. It wasn't till around 1930 that anyone claiming a right to speak freely under the First Amendment won a case in the Supreme Court of the United States...Legally, we are far freer today than we were through most of our history to say what we want.

Q: What is your view of the current nomination process to the Supreme Court? Historically nomination has never been much of an issue...

A: No, you're wrong...In the 19th Century there were many bitter political battles about Supreme Court nominees...Our notion that it's a new thing, which people do generally believe, is quite wrong. It's simply that now the struggle has once again become what it was in the 19th Century: highly ideological.

I think the confirmation process, if you want me to go on to that, is a total mess. The Senate Judiciary Committee is ill-equipped to do the job. The Senators ask mostly dumb questions, and they insist on asking questions about how the nominee will vote on such and such an issue, which is entirely improper.

Q: Do you think this is more specifically a reaction to the Bork the "blank slate" nominees, and I guess Souter is the best example, get precedence because people can't find things to not confirm them?