When justices should legislate

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President Bush loves magic words and invokes them with the alacrity of a tribal chief eager to keep the local volcano from acting up.

Traditional values. Compassionate conservatism. War on terror. They spring from his lips, usually with no more harm than the whistle of an annoying co-worker in the next cubicle.

But Mr. Bush also gets to appoint Supreme Court justices and they generally serve until the people sent to dust them notice they are inert. This is a matter of some seriousness because, unlike the members of Congress who pass the laws, the justices actually read the things and get to decide what they mean.

That is why Mr. Bush becomes worrisome when he discusses Harriet Miers, the walking hologram he named last week to succeed Sandra Day O'Connor.

Ms. Miers, he says, hoping to sell her to his party's right wing, "shares my philosophy that judges should strictly interpret the laws and the Constitution of the United States and not legislate from the bench."

These words actually mean something and Mr. Bush, who is clearly better at checkers than chess, seems not to appreciate the significance of what he has said each time he rails, as he did in the campaigns of 2000 and 2004, and in his last State of the Union Address, and, perhaps, even in his sleep, about "activist judges" he says write new law rather than interpret the meanings of the old ones.

Virtually every Supreme Court ruling can, however tenuously, be traced to precedent and constitutional text. Even Harry Blackmun, in writing the Roe v. Wade opinion in 1973, reverted to legal formalism in deciding the 14th Amendment's equal protection clause does not apply to the unborn. Thus did the Warren court's liberal jurist punt to the states.

But it was another opinion, now 51 years old, that set the gold standard for precisely when and why high courts should legislate. When the court ruled school segregation unconstitutional in Brown v. Board of Education, it did not outlaw segregation in every public school in the nation. This is because Brown v. Board turned on the 14th Amendment, which prohibits states from unevenly applying constitutional rights and demanding due process for everyone. It was passed in the wake of Reconstruction, to prevent states from creating a second-class status of citizen in the freed slaves.

But the 14th Amendment applies to the conduct of the individual states. And one of the nation's largest public school systems was in the District of Columbia, which was governed not by state law, but by Congress. And Congress had, under law, segregated the district's schools.

Brown v. Board got the press, but an accompanying opinion was called Bolling v. Sharpe, and its language, written by Chief Justice Earl Warren, was thin in constitutional principle, and relied almost solely on its moral throw weight.

Conflating due process and equal protection, Warren wrote that the Fifth Amendment seemed to cover, for Bolling, what the 14th accounted for in Brown. So, the district's school segregation would not pass muster. Any "original intent" to be found in this decision is dated 1954, not 1789.

"In view of our decision that the Constitution prohibits the states from maintaining racially segregated public schools, it would be unthinkable that the same Constitution would impose a lesser duty on the federal government."

Unthinkable? Ridiculous. The Constitution was an act of dividing powers and obligations multiple ways.

It was entirely thinkable that the same Constitution did not impose the same duties on the federal government as on the states because the amendment by which the Court decided Brown v. Board did not apply to Congress.

Nobody invoked the term "natural law," but that's precisely what informed the process in Bolling v. Sharpe.

"The lesson of natural law," writes political theorist Alessandro D'Entreves, "is nothing more but an assertion that law is a part of ethics." The lesson of natural law, as D'Entreves saw it, was "simply to remind the jurist of his own limitations ... This point where values and norms coincide, which is the ultimate origin of law and at the same time the beginning of moral life proper, is, I believe, what men for over two thousand years have indicated by the name of natural law."

No less a conservative than Russell Kirk quoted those words in explaining the common, moral bond that links left and right when it comes to distinguishing between law and decency, and the benefits of applying and grave dangers of misapplying these ideals.

The operative word in Earl Warren's opinion in Bolling was "unthinkable." When something becomes unthinkable, when it lacerates the conscience and goes against the ingrained sense of right and wrong that was inherent in mankind long before delegates assembled in Philadelphia, a court worthy of the name will legislate.

This is how we get that wonderful, scary thing called a "living Constitution" -- the idea that the document, because it was written by men who traveled to the assembly accompanied by their slaves, slept three to a bed in hotels where the house doctor was likely to do leeching, and got their news from partisan papers that took weeks to arrive, just might have to be interpreted in light of a new era.

The uber-precedent for judicial activism was called Lochner v. New York and it would likely have delighted Mr. Bush's political compatriots. In 1905, the Supreme Court overturned a New York law that prohibited bakeries from working their employees more than 60 hours a week. It was an early labor law, overturned by a court that insisted the 14th Amendment protected the right to make contracts, including the right to purchase and sell labor.

Oliver Wendell Holmes, in his three-paragraph dissent, suggested the case "is decided upon an economic theory which a large part of the country does not entertain."

The Constitution, he added, "is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez faire."

In the ensuing 30 years, Lochner v. New York was cast aside as the court allowed labor law to take its place in the statutes.

But from one extreme of activism to another, each cases of applying amendments, be their number 5 or 14, where they do not quite fit, the courts have legislated from impulse and understanding born both in the given era and the eternal sense that justice is often a good substitute for law.

Here is hoping Harriet Miers, a woman as happily devoid of previous judicial experience as was Justice Warren, is guided by that sense of natural law. Lawyers capable of reading precedent are plentiful. Ones capable of conscience at the moment it is needed seem to be harder to find.

Dennis Roddy is a Post-Gazette columnist, droddy@post-gazette.com , 412-263-1965.


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