A Lady Justice, Says Laurence Tribe, Can Bring Cohesion to a Court That Badly Needs It
O'Connor is slated to take the seat vacated by Potter Stewart, who has retired at 66 after 23 years on the bench. With five Justices over 70, Reagan may get to make more appointments. How he might use his opportunity intrigues Harvard Law Professor Laurence H. Tribe, 39, who clerked for Stewart in the 1960s and is now a top constitutional scholar. In a talk with TIME correspondent David Beckwith, Tribe spoke about the Court and how Reagan might change it.
Is Sandra O'Connor a good choice?
Yes. She's entirely competent. On the Arizona court she had no chance to tackle the tough issues that lie ahead of her, but her opinions showed a healthy humility: She refused to reach for unusual grounds in deciding cases. Her old support for abortion in Arizona means little; she could be far more conservative as a Justice. What matters is that intelligence and competence were apparently the criteria for her selection, not an obsessive concern for her views on issues.
How will she affect the Court, divided as it is between liberals and conservatives?
Since her views are anything but extremist, she could help give the Court a badly needed cohesion. At the least, the Justices will no longer be able to deal with each other in some male-type, backslapping way; they won't be able to brush each other off anymore. She's bound to change things, and change has to be salutary.
Stewart was a "centrist," a swing man on the Court. Is his departure a loss?
Yes. He's a man of character and pragmatism, and a brilliant writer. Justice Robert Jackson once said that an opinion, to be immortal, need not be eternal. There have not been many Justices whose prose has been as brief, lucid and memorable as Stewart's.
How might the Court's view change on, say, the death penalty?
Stewart cast the deciding vote in the 5-4 ruling of 1972 that limited the circumstances under which juries can give the death penalty. A conservative in his seat could tip the balance.
How about search and seizure?
There have been times when four Justices wanted to dump or gut the "exclusionary rule," which bars use of evidence obtained through illegal search and seizure. Stewart always refused to go along with these attempts, though he was never an enthusiastic supporter of the rule that sometimes allows guilty defendants to go free.
Has the Court been guilty of "overriding public opinion," as Reagan has said?
The Court's role is to override public opinion. The point of having a constitution and a judiciary to enforce it is to take some issues beyond the reach of the majority. When people complain about this, they're really saying they don't agree with decisions the Court has made. In fact, they're calling for a radical change in the kind of country we've had, with its independent judiciary protecting rights of minorities against the majority.
What about Reagan's charge that the Court has been "invading the prerogatives of the legislature"?
He's misguided. Again, the role of the Court is to override—not invade—decisions of the legislature. Whatever one thinks about abortion, for example, the Court had no choice but to take a strong stand. Its options were to uphold women's rights—which it did—or to defend the rights of the fetus completely, or to leave the abortion question to the states. The Constitution offers only limited guidance.
How will the Burger Court be remembered?
As an activist Court, even though its dominant majority was appointed by Richard Nixon, who opposed judicial activism. It has grappled with impossible problems, such as affirmative action and abortion, for which there are no satisfactory solutions. It has done many activist things, some wise and others foolish, as when it skewed Congress's election campaign finance plan by, for example, removing any limit on what a candidate can spend out of his own funds. But the Court has also been anything but deferential to considerations of politics.
What has been its main failing?
Its insensitivity to the fact that the American dream is available to only a limited number. The Court, for instance, says literacy tests that keep blacks from becoming policemen aren't discriminatory because they weren't intended to be. That shows no understanding that discrimination may work through unintended slights.
Must the Court ensure equal opportunity?
I'm saying we rely on the President, Congress and state legislatures to make policy. And we rely on lower courts to vindicate the claims of individuals who may be ground up by those policies. But unless we can rely on the Supreme Court to protect the rights of whole groups in society, the system fails. Then there is no one to whom the relatively powerless may turn.
Will the strict constructionists that Reagan favors be hard to find?
Saying you want a person who will hew to the Constitution is fine, but it's also vacuous. No judge will admit to making personal choices about the Constitution. Yet that's what he must do, because the Constitution can't answer all questions that arise.
Haven't presidential hopes about Court appointees often been dashed?
Indeed. Harry Truman said the appointment of the unexpectedly independent Tom Clark in 1949 was his "biggest mistake." The liberalism of William Brennan and Earl Warren greatly surprised Dwight Eisenhower. But the views of Justices should be hard to predict—if they're open-minded enough to be worthy of the office.
How should Justices be picked?
We never know what the big issues will be 10 or 15 years hence. When FDR was choosing people with an eye to whether they'd back the New Deal, he had no idea Justices like William O. Douglas and Hugo Black would be focusing for decades on civil rights and civil liberties. If Reagan puts someone on the Court because of his positions on abortion, school prayer, busing and the death penalty, it might be a terrible mistake, because who knows what the issues of the 1990s will be? That's why judicial temperament, intellect and vision ought to be the main criteria.
Should women and minorities be represented in some proportional way?
Not as tokens. The Court is a deliberately unrepresentative body, dedicated to enduring principles, not to reflecting population patterns. But I'm convinced that if Justices are selected for breadth and understanding of the Constitution, over time we'll have four or five women, as well as minorities.
Are the senior Justices—Burger, Brennan, Marshall, Blackmun and Powell are all over 70—in good health?
Several of the men mentioned as being in ill health or about to quit would be most surprised to hear about their impending departure. They have a job that keeps them young. It's not exactly like jogging, but it does push and preserve the mind.
So how many appointments is Reagan likely to be able to make?
Much may depend on how this first nomination is perceived. If he's seen to be more concerned with general capacity than with loyalty to the Moral Majority on a small list of issues, the senior Justices may be willing to step aside. If he frightens them with what appears as a narrow-minded choice, they may not. The O'Connor nomination should allay fears that appointments will be made irresponsibly. It should thus help Reagan put his stamp on the Court in years to come.