(As usual, Peg and Al, teachers.)
(Ubiquitous name-brand coffee shop; mid-summer, mid-week, mid-afternoon. Peg walks through with a friend, notices Al reading newspapers and sipping his usual.)
Peg: Hey, Al, don't you think it's warm enough without all that hot coffee?
Al: Coffee is the elixir of life, Peg, hot or not. Besides, I need it to keep me calm while I read this news. Why don't you sit a while. Can I treat?
Peg: That's O.K., we just stopped in for some water. I'll get it. By the way, this is C.J., my neighbor.
CJ: Hi, Al; Peg mentions you regularly.
Al: Really? I'd better behave, then.
Peg: (Returning with bottled water.) So what are you reading those papers for?
Al: I'm trying to get a scope on this Supreme Court nominee. This political stuff just makes me crazy.
Peg: Good grief, CJ's been ranting about it, too.
CJ: No kidding. And the papers have it all wrong, as usual.
Al: I'm glad you said that--I was beginning to think the problem was mine. They really don't understand, do they?
CJ: Nope, not a clue.
Peg: Wait a minute, what am I missing here? I know Justice O'Connor has retired and the President is nominating a judge named Roberts to replace her. The President is picking someone who thinks like he does, and the liberals are going to be upset. What's the problem? It sounds like business as usual.
Al: It's not.
CJ: Al's right. The nomination of a Supreme Court justice has never been the subject of this sort of ideological line-drawing--at least, not until a few years ago.
Al: CJ, you're a retired attorney--is that right? I think that's what Peg told me.
CJ: Well, I guess I'll admit that much.
Al: So why the problems with this nomination?
CJ: That works on a couple of levels. What everyone sees, of course, is the political battle. No one likes being in second place. There's a pretty radical element in the Congress that's unhappy because the voting public seems to be rejecting key points of their message at the polls.
Al: There has been a real shift--I think everyone admits that much.
Peg: But we don't vote for Supreme Court justices.
CJ: That's true, Peg, but over the last 30 years or more, as voters have chosen lots of conservative candidates on the national level, the Supreme Court has kept to a pretty consistent pattern of support for a doctrine of social engineering--I guess, since the early 1960's.
Al: That's a pretty stiff way to put it, but the pattern is there, isn't it?
CJ: You bet. There have been several landmark cases where you can trace the development of a very distinct judicial philosophy. Some of the attorneys I know say that the Court has made itself a sort of "super-legislature".
Peg: Don't justices do what they've always done? When an existing law is challenged on Constitutional grounds, doesn't the Supreme Court just look at the rights given in the Constitution and decide whether that law is consistent with those rights--or not?
CJ: Sorry to burst your balloon on this one, Peg. In the first place, the Constitution is not a document that spells out or anticipates every possible situation that can arise. The founders did create the institutions of a representative republic that served the interests of a government under which the citizens of the states had certain rights and duties. These rights and duties of citizenship were held equally by all citizens but the design was to be rather minimalist in terms of how intrusive that government was allowed to become.
Peg: But of course not every person had access to these rights--the black slaves and women were left out.
CJ: You're right. There's plenty of good historical evidence why they left the slave question out--the fact is that they would not have had a republic at all if they had pursued this question in the 1780's. The new nation would have collapsed over the differences regarding abolition. It nearly did 80 years later, but America was strong enough to survive the Civil War.
Peg: But the children and grandchildren of the slaves didn't get their rights in any general sense until a hundred years later.
CJ: That's a tragedy from which the country still suffers. The courts and the government stepped in several times from the 1940's to the 1960's--the Civil Rights era--to make sure that the political rights of minorities were protected as a matter of federal law.
Al: The women's questions was solved differently, wasn't it?
CJ: That was settled by amending the Constitution; in other words, by a popular vote in the states specifically extending the rights of citizenship to women. It took two generations, but happened in the most definitive way possible.
Al: I think I see what you're getting at. The Constitution allows for its own amendment--its own alteration and adjustment over the years, but this is to happen through the people.
CJ: That's right--and the people can change their minds, as they did with Prohibition.
Peg: Or they can get smarter, as they did with the suffrage question and with the civil rights process. But that doesn't solve our problems with the Supreme Court, does it?
CJ: No, it doesn't. In the Griswold case, around 1965, the Court concurred with Justice Douglas describing something called "a penumbra issuing from an emanation" of the rights in the Bill of Rights. In other words, it suggested setting up a whole new standard for describing the rights of citizens. A lot of people said "What?"
Peg: What does the Constitution say about the job of the Judicial Branch?
CJ: Not much.
Al: You're right--I've got a copy here in my pocket.
Peg: What kind of a nerd keeps the Constitution in his pocket?
Al: The kind who knows his rights--and limitations. Here, read Section Three.
Peg: Well, that's short: only about 10 sentences.
CJ: The Judiciary was created as a third branch of government, but apparently not intended to be the dominant branch--more of a limiter and correcter, whose jurisdiction could, and can still, be limited and specified by the Congress and so by the People.
Peg: Wow, I hadn't really considered it that way. I'm stunned.
Al: The founders may have been wise. The Supreme Court has made some great decisions in its history, but it has also been dreadfully wrong at times, necessitating the reversal of its own decisions. That shift of emphasis that CJ talked about is real. The Court's main direction was to rule on the rights related to citizenship itself. Now, it seems that the justices want to protect and expand all kinds of cultural and behavioral privileges. It seems to me that these sorts of things are better off left to votes of the people through their legislatures.
CJ: The more I study, the more I marvel at how wise the founders were. They certainly didn't avoid the basic questions of government itself, but their ideal was that the citizens should not be tyrannized by any branch of government that reaches for a level of social control beyond the necessary minimum, especially on the Federal level.
Peg: But just the other day, some senator was on the news talking about the Constitution being a living tradition, not just a document.
CJ: I know who you're talking about. She was right and she was wrong.
Peg: What do you mean?
CJ: She was right in two ways. First, the people can amend the Constitution at will, since the whole point of our government's existence is the ability and importance of voting. Even the great Court decisions of the Civil Rights era were centered around protecting the ability of citizens to vote and the direct supports for that right. America is all about voting, especially on major issues--which means political process, campaigns, rhetoric, and so on.
Al: Messy, but effective.
CJ: The second way the senator was right was that the whole judicial branch, federal and state, builds on a body of case law that goes back even before the country's founding. But, it's a very careful and subtle process of interpretation, not open to whims and fads--or "penumbras issuing from emanations".
Peg: So the senator was wrong about the role of the Supreme Court, because she implied that it had a kind of legislating job to do.
Peg: But it seems unnecessary to be so strict about the role of the Constitution. Why can't the government grow and evolve with the times?
Al: The government can grow, alright, and it has in order to serve the needs, complexities and emergencies of the world. It's up to the Congress and the Executive to do this part, though, and the Constitution provides plenty of freedom to allow that to happen. But it's that word "evolve" that scares me.
Peg: Now you really sound like a conservative.
Al: That's no insult. To me, "evolve" means that the ideals and principles change, and I'm not sure that's a good thing at all, even if I am occasionally inconvenienced by the limitations.
Peg: How do you mean that?
Al: CJ, you can correct me on this. America, as it was envisioned by the founders, meant a pretty specific set of ideals clustered around the basics of life, liberty and pursuit of happiness. Basic to these were political liberties and political equality--the rights of citizenship. To me, guaranteeing these goods is what is most important. Anything else may well be up to the people, but not necessarily for the courts to dictate.
Peg: But the people wouldn't necessarily vote for things like fewer restrictions on publishing and broadcasting obscene matter, the ability to choose abortion, and so on.
CJ: You're right, Peg, they wouldn't, without some case being made that would convince them these things were right. Realize also, that these are behavioral freedoms, not political rights as such. It's a stretch to include them in the area of political rights. In fact, I'd go so far as to say that this is where ideology takes over.
Al: Ideology is fine for the Congress--it's what they're about. It's not what the Supreme Court is about.
Peg: Well, we certainly haven't heard it put that way in the news.
Al: I'm hoping that as Judge Roberts is interviewed by the Judiciary Committee, he'll be able to remind the nation of that. It does look as if that seems to be his position: looking at the objective fact of the Constitution, rather than some 20th-century social ideal, as the source of legal interpretation.
CJ: I agree--but we'll have to listen to the ideologues during that process as well.
Peg: Hmm... I'm going to have to sit and think about all of this when I get home.
CJ: (Checking his watch.) Speaking of which, Peg, we ought to hike on out of here. Good talking with you, Al.
Al: Sure, guys. So long...