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A Visiting Justice

By Eric M. Nelson

Without terribly much fanfare, one of the dozen-or-so most powerful people in America came to Harvard this past week. The lack of pomp and circumstance is not shocking, considering that outside academic and legal circles, the vast majority of Americans has probably never heard of him. No big surprise there either: he's a justice of the United States Supreme Court.

The state of general knowledge concerning the Supreme Court these days reminds me of a Jay Leno skit in which the talk-show host goes out onto the street to test people's familiarity with Biblical trivia. A standard question in his repertoire: which of the following is not a Biblical book--Genesis, Exodus, Leviticus or DeGeneres? Needless to mention, Leno's hapless guinea pig does not "choose wisely." I sometimes wonder whether Leno would not find equal ignorance were he to ask: who of the following is not a Supreme Court justice--Rehnquist, Ginsburg, Scalia or Sorvino?

Be that as it may, Justice Stephen Breyer came to Harvard at a time when the Supreme Court, though obscure and distant to most Americans, is under attack for being the most powerful and tyrannical branch of the federal government. I was fortunate enough to have asked him a question at Hilell last Monday night. Is the conservative claim that over roughly the last 30 years the Supreme Court has gradually abandoned textual interpretation of the Constitution valid, I asked. His response was that literal interpretation is difficult to define, and that, in any event, examining trends was not his job. This exchange exemplified the current debate over the nature and future of the Supreme Court.

Code translated, Breyer understood my question to be, "Do you agree that the Supreme Court has become accustomed to deciding cases, not based on the text of the Constitution, but rather on what the justices think the meaning of Constitution should be (a question betraying a Scalian mind set)? I understood his answer to be, "There is no such thing as a 'textual' argument, or one that is self-evident from the text. Rather, the Constitution is an evolving document that must be understood in relation to changing circumstances."

It is precisely this kind of argument that has given rise to the most hostile attacks on the very essence of the Supreme Court in my lifetime. Calling for radical changes in the structure of the judiciary used to be a kooky notion of the right fringe; now, although currently still a far-right proposition, it has become respectable and more mainstream.

In his recent book, Slouching Towards Gomorrah, Judge Robert Bork writes, "Contrary to the plan of the American government, the Supreme Court has usurped the powers of the people and their elected representatives." As a solution, he proposes "a constitutional amendment making any federal or state court decision subject to being overruled by a majority vote of each house of Congress." True, Judge Bork does tend to be one of those who looks left and sees Attila, but his book is endorsed on the back cover by such conventionally "mainstream" conservatives as Bill Bennett and Senator Chuck Grassley.

Bork's proposal is a frightening one, one that would mean the end of democracy in America. If the majority were given the power to interpret the Constitution, which is what this proposal amounts to, the only check on the people's power to oppress the minority would be eliminated. The justices and their judgments would be rendered impotent. The justices would be mere mouthpieces. We would do well to remember Madison's admonition in Federalist No. 47: "The accumulation of all powers, legislative, executive and judiciary, in the same hands, whether of one, a few, or many...may justly be pronounced the very definition of tyranny."

Clearly, this proposal is not currently mainstream, nor is there any indication that it is swimming thither. But we should not dismiss its prospective import, nor should we lose any time in pointing out its fundamental flaws. We should not react to undesirable trends in the rulings of the Supreme Court by advancing proposals which would undermine the basic fabric of American democracy. As Hamilton wrote, our Republic is and must be based on the conviction that "the interpretation of the laws is the proper and peculiar province of the courts."

Eric M. Nelson's column appears on alternate Saturdays.

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