Judicial Inconsistency
By Charles J. Eusey
Professor Gottlieb, of Albany Law School, argues that inconsistency shows a lack of principle and that "a dose of principle would very significantly improve the moral quality of the Rehnquist Court." The thrust of his argument is not to quibble with the decisions of this Court but to fault the justices for an inconsistent assumption in arriving at decisions.
Gottlieb seeks to discover the philosophical assumptions of the justices and to follow these assumptions to their conclusions. For it is not possible, he contends, for jurists to avoid importing their own philosophy into their decisions.
Chief Justice William Rehnquist is joined by Justices Antonin Scalia and Clarence Thomas in asserting that we should interpret text literally. In this view, judges should not look behind the text to discover the reasons for the use of particular language. Nor should they examine the impact of changing reality upon the achievement of constitutional purposes. The text must not be changed. Justice Scalia would, however, look at the practices of the generation that adopted specific constitutional provisions, but not at their principles. For him, to consider principles would open the door to judicial discretion.
But does the current Supreme Court confine itself to reading text literally? Consider the Eleventh Amendment cases. This amendment prohibits lawsuits by citizens of one state against another state. The Rehnquist Court interprets this amendment to prevent federal questions from being brought by citizens of the same state.
The conservatives on this Court treat the work of previous courts as "moral relativism." They have taken a more absolutist position.
Justices Scalia and Rehnquist believe government has every right to regulate behavior for any reason it chooses. Justices Thomas, Sandra Day O'Connor, and Anthony Kennedy generally agree with this power. According to Scalia, the Constitution does not allow us to do what we like so long as we do not injure anyone else.
Gottlieb points out a major inconsistency between the Court's rhetoric and the reality of what they have been doing in respect to the right to participate in a democratic society—the democracy gap. The five conservative justices have repeatedly said that justices should stick to a relatively narrow and unchanging version of history. Otherwise, the views of the judges would substitute for those of the people. It is an argument that seems to be based on democratic principles.
This Court has backed away from upholding equality among voters to the point that three-to-one differences in voting districts satisfy them. They refuse to deal with gerrymandering cases. White objections to Black minority districts are the only kind of democratic voting claims the conservative justices support.
Justice Thomas says there is no theory of democracy from which one could construct decisions about districting. Justice Scalia asserts that he is more concerned about the tyranny of the majority than the tyranny of the elite. Gottlieb wonders: "If democracy has no real meaning and there are no problems for which it is part of the solution, what does it mean to say that Scalia or Thomas believe in democracy?" He believes their claim to defer to democratic decision-making rings hollow, because they have no concept that coincides with what they claim to respect. How does a believer in democracy support the Black-White division of voting districts (so-called segregate districts) that this Court believes is acceptable, if done to protect incumbent office holders?
Gottlieb goes on to address judicial restraint. He claims that the Rehnquist Court is one of the most activist in the history of the United States. • "Its treatment of judicial restraint is very closely tied to its rejection of democratic rights." It has been zealously active in overturning legislation adopted by a majority of the people in such areas as powers of Congress, local control of land use, and the 1964 and 1965 civil rights acts. "The Court is moving to a model of judicial restraint based on what seems reasonable to it."
Gottlieb exposes the quality of the Court's definition of procedural justice—the right-to-life gap. This inconsistency is most apparent in the Court's treatment of those facing execution. Right to life for the unborn is contrasted with the rights of those on death row. Angel Herrera was convicted in a Texas court for the murder of two policemen, in a trial conducted under the most prejudicial of circumstances. For example, one member of the police force was on the jury.
Texas has a statute that bans courts from considering evidence acquired more than 30 days after sentencing. The Supreme Court did not have to rule on Herrera's guilt or innocence. It could simply have ruled that the 30-day rule risked the lives of innocent people. There was a conflict with the guarantees of due process.
Chief Justice Rehnquist wrote the majority opinion that denied all relief. The possibility that an innocent person would be executed seemed of less importance than finality. Herrera would be required to present a strongly persuasive demonstration of innocence. But no forum was available for him.
The third gap is the equality gap. The conservative majority on the Court has not ignored the equal protection clause. It has claimed the moral high ground of a color-blind Constitution. But the claims of real people are being denied. Segregation by race in districting is attacked, but not in employment. A prosecutor is allowed to exclude bilingual jurors based on his argument that bilingual jurors would not rely upon the translator. Employment discrimination does not exist in even the most apparent situations. The Court found no discrimination in an Alaskan fishing plant where the native Inuits filled all the canning-plant jobs and White Californians filled nearly all the white-collar jobs in a separate adjacent building. The Inuits were not informed of positions available in the white-collar building. The supervisor explained that the two racial groups would not mix well. The Court reasoned that this was not racial discrimination but a perfectly reasonable business practice.
Justice Scalia has denied that society has any responsibility for racial injustice or that it has the right to make amends. He asserts that protection against discrimination is equivalent to "favoritism." Justices Rehnquist and Thomas join him in saying that prohibiting discrimination is the same as "preferential treatment."
What would it take to satisfy Gottlieb? A good start would be the "consistent application of decent principles." He decries the lack of a coherent moral notion. I believe that most defenders of religious freedom would join in his concerns. They very well may share the author's bias that the Supreme Court has substituted its own conceptions of moral character for basic principles that had previously formed the basis for individual rights. These same defenders of religious freedom would likely agree that the Court should aim for a freer society. They may accept Gottlieb's position that the law should be guided by the objective that individual freedom and moral autonomy should prevail to the extent that no one is harmed. But there no doubt will be much debate over how we define "harm."
Morality Imposed: The Renquist Court and Liberty in America, by Stephen E. Gottlieb. New York University Press. 341 pp. $32.00. Reviewed by Charles J. Eusey.
The Reviewer had the benefit of attending a lecture by Stephen E. Gottlieb on the topic of this book at the Social Law Library in Boston on November 7, 2001. The quotations in this article are from that lecture.
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