Court and Constitution: A Talk with Anthony Lewis

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 nomination...now the "blank slate" nominees, and I guess Souter is the best example, get precedence because people can't find things to not confirm them?

A: That's what the conservatives in the Senate want us to believe...In my opinion, you would have a hard time not confirming a sitting judge. Thomas is a sitting judge, but he's been one very briefly, and his record was mostly elsewhere. Indeed, the problem with Thomas is that he has no legal record, none. I mean, he was a politician...but as far as law goes, he's completely zero.

Not like Souter, who...had respectably been a lawyer. Thomas has hardly been a lawyer at all, and that's the reason he should be rejected...Nobody should have voted for him. He's simply not conceivably equipped to be a Supreme Court justice.

Q: Do you think that the notion of a Supreme Court is incompatible with a democratic tradition...isn't [the Court] pro-foundly undemocratic?

A: No, I don't think so. It's un-majoritarian, that's a different thing. I think this country would not have survived as a democracy had it been a purely majoritarian system, and nobody at the Constitutional Convention wanted a purely majoritarian system...I am a total believer in checks and balances, and one of the checks and balances is the Supreme Court.

Of course the court is not democratic in the dictionary way, but it has often served a democratic function. To take a dramatic example, the decision that political districts have to be of roughly equal population, the 1962 decision, was the greatest advance of democracy in modern times in the United States, and it was done by the Supreme Court. So it's not a simple question.

Q: Do you think that the role of the Court in American life is going to be substantially different from how it has been?

A: That's the 64-dollar question. It's perfectly obvious that the Court is not going to vindicate individual rights in the dramatic way it did in the years from 1957 on. To the contrary, the present chief justice has quite an explicit agenda to roll back many of the rights that were established in the '50s, '60s and '70s. That's already happened to a considerable extent in criminal law--coerced confessions, habeas corpus, search and seizure and capital punishment. It hasn't happened in the speech and press area, with the possible exception of the decision last term in Rust v. Sullivan, the abortion "gag rule" case.

This produced a very menacing new doctrine--if the federal government gives money to some private institution, it can dictate what can be said in that institution. If [this decision] applies to universities, all of which get federal funds in some form, that would make the First Amendment mean something very different from what it has meant until now. So I hope that isn't the case. But apart from that, I don't see, so far, any radical change in the First Amendment.