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The Supreme Court Phalanx’: An Exchange

In response to:

The Supreme Court Phalanx from the September 27, 2007 issue

To the Editors:

I read with interest Professor Dworkin’s article on the US Supreme Court judges [“The Supreme Court Phalanx,” NYR, September 27]. What struck me from down in the Antipodes is the oddity of a person who, having spent a lifetime extolling the virtues of handing difficult social-policy line-drawing powers to the unelected judges, now laments the decisions they happen to be making. Of course Dworkin has to say that in reaching these disliked decisions they have been unprincipled. It cannot be that they are motivated by principles different from his, for that would cast doubt on his unswerving support for the unelected judiciary.

Perhaps there are others, like me, who would like to hear Professor Dworkin list those cases he happens to disagree with in terms of outcome yet which he thinks were decided on a principled, best-fit, full-of-integrity basis. I can’t honestly say I’ve ever read him providing these sort of examples.

Meantime, those of us who put our money on the elected politicians over the unelected judges can be forgiven for permitting ourselves a quiet, self-satisfied chuckle when reading Professor Dworkin defending the elected politicians in Seattle and Louisville and even in Congress itself against the purported depredations of the country’s top judges.

James Allan
Garrick Professor of Law
University of Queensland
Brisbane, Australia

To the Editors:

Ronald Dworkin’s guiding constitutional principle is not integrity but the ratchet. He complains that last term the Roberts Court, according to “a coded script for the continuing subversion of the American Constitution,” overruled while pretending not to several crucial constitutional precedents—on affirmative action, campaign finance reform, free speech for high school students, and citizens’ standing to complain of violations of the separation of church and state. In each case the precedents whose passing Dworkin bemoans, though containing some stirring rhetoric, were razor-thin, ambiguous, and hedged about with qualifications and distinctions, pretty obviously because their authors could not otherwise have attained a majority. Apparently Dworkin believes that integrity requires continuing extrapolation from these ambiguous precedents, rather than their treating them as unstable compromises meriting a thus-far-and-no-further response. Once the side Dworkin favors had gained a fingernail hold in a particular case, it must be extended to the limit of (one of its 49/51) logic(s).

The justice whose methodology most closely agrees with Dworkin is Scalia, except he would meet these doctrinal chimeras not as beachheads to be expanded but as errors to be extirpated entirely. The two cases from last term that most exercise Dworkin struck down an automatic racial tie breaker (after other nonracial criteria had produced the tie) in two cities’ school assignment schemes. And the case which Dworkin (and the dissenters) claim the Court disregarded and in effect overruled, Grutter, had approved the University of Michigan Law School’s use of race in what was said to be a flexible, nonmechanical way to achieve “diversity” in its student body. What Dworkin nowhere adverts to is that Grutter was accompanied by a companion case, Gratz, which struck down the same university’s affirmative action program to achieve the same result in its much larger undergraduate program because that program relied on a mechanical formula to achieve that result. As Chief Justice Rehnquist dissenting in Grutter and Justice Ginsburg dissenting in Gratz pointed out, the two programs were either both constitutional or both unconstitutional, and the only difference between the two was that Grutter, involving an entering class of a few hundred, could afford to work in one justice’s phrase “by winks and nods,” while the undergraduate program which admitted thousands had to rely on some bureaucratic formality.

Dworkin and I might have an unprofitable discussion about whether the past term’s high school cases were more like Gratz or more like Grutter, because in fact the Court’s results in the two Michigan cases are in principle quite incompatible and the decision to extrapolate from one or the other is a matter of which tendency one favors. Whatever else it is, it is not a matter of integrity. Similar ambiguities and incoherences are present in each of the lines of precedent Dworkin discusses. For instance in the high school “BONG HiTS 4 JESUS” free speech case Dworkin believes that the 1965 Tinker “seemed dispositive.” But he fails to mention that two cases in the 1980s (Bethel and Hazlewood) so far qualified Tinker that little remains of it besides its ringing phrase that students do not check their First Amendment rights at the schoolhouse door. And it is these two later cases that the Court used as its points of departure in last term’s decision.

I should add that (as I have written elsewhere—The New York Times, April 26, 2007) on one case, the partial-birth abortion case, Dworkin is entirely correct and Justice Kennedy’s decision is incompatible not only with precedent but with his own strongly expressed profession of principle.

Charles Fried
Beneficial Professor of Law
Harvard Law School
Cambridge, Massachusetts

Ronald Dworkin replies:

Professor Allan wonders whether I am now persuaded of his view: that elected politicians are better guardians of individual freedom than constitutional judges are. No: the fact that five justices of the Supreme Court are now ready to sacrifice legal integrity to a partisan agenda does not show that he is right. Over its history the Court has often protected individual rights against violations by legislatures bowing to popular prejudices and fears; most, though not all, of its now-acknowledged mistakes were failures to curb majority will, such as its failure to defend Japanese-Americans from internment in World War II and to defend freedom of speech and conscience in the McCarthy period. The Court’s mixed record hardly argues that courts should not have the power it failed to exercise on such occasions.

Allan asks whether all the Supreme Court decisions I disagree with, over its history, were unprincipled. No, some of the Court’s most famous mistakes were principled but appealed to the wrong principles. The 1905 Lochner decision, for instance, which held laws limiting working hours unconstitutional, is often cited as one of the worst. In that and other cases the Court relied consistently on the mistaken but principled view that property rights are basic human rights.

Professor Fried was solicitor general in the Reagan administration and testified to the Senate Judiciary Committee in support of each of the new right-wing justices whose decisions he now defends, Chief Justice John Roberts and Justice Samuel Alito. Fried misunderstands what I wrote: judicial integrity does not ask judges to decide on political grounds which of their past decisions “must be extended to the limits of…its logic” and which to curtail by declaring “thus-far-and-no-further.” Rather integrity asks them to find and apply the principles of constitutional morality that provide the best justification of their past decisions, not just one by one, but as a body of constitutional law.

Fried’s two examples show the seriousness of his mistake. The school assignment case I discussed required the Court to decide which of two principles best fit and justify its past decisions about racial criteria: first, that racial criteria are harmful in themselves, and therefore permissible only in narrowly defined circumstances already specifically recognized in past decisions, or, second, the very different principle that racial distinctions are impermissible when there is any room for suspicion that they are motivated by racial preference or racial politics. For reasons I explained, only the second of these principles could fit and justify the Court’s past decisions, but Roberts, Alito, and the two other most conservative justices relied on the first in striking down Seattle’s and Louisville’s plans for reducing the dangerous racial isolation in their schools. These justices apparently followed Fried’s formula: since some past cases upheld and others rejected racial selections, judges are free to say “no further” to those that upheld them. That is not integrity but its opposite.

The Gratz decision Fried relies on provides no support for his claim. In that case the Court held that the scheme the University of Michigan used to award undergraduate places to minority students, which did not allow race to be balanced against other factors in particular cases, raised some suspicion that the scheme was designed not to achieve diversity but to show preference to one race. The university could easily have reached the same diversity through a different though somewhat more expensive scheme that did allow balancing, such as the one the Michigan Law School used and the Court approved on the same day. It is arguable that the Court misapplied the second, flexible principle in the Gratz decision but not that it really applied the first principle it had just rejected in the law school decision.* There was clearly no room for any such suspicion in the school assignment case. The cities’ plans did not benefit any race at the expense of any other—whites as well as blacks could gain or lose under the scheme—and they did not substitute race for merit in any way.

Fried’s only other example is equally ill-chosen. In the Frederick case I discussed, the conservative justices held that a school could punish a student for displaying a banner on a public street with a concededly ambiguous message—“BONG HiTS 4 JESUS”—that might, though it probably would not, be read as advocating illegal drug use. That speech-chilling decision implicitly overruled the Court’s earlier Tinker decision, which allowed students to wear black armbands during the Vietnam War and declared that schools could not restrict student speech unless that speech threatened to “materially and substantially disrupt the work and discipline of the school.” Fried says that the Court’s decision was nevertheless justified in virtue of two Court decisions after Tinker. One of these, Bethel, held that a school could discipline a student for unambiguous, extended, and offensive sexual jokes in a school assembly speech. It is certainly arguable that crude sexual humor in a school assembly speech does threaten school discipline.

Fried’s second case, Hazelwood, is even less in point; the Court held that a school can restrict the content of material published in a student newspaper that it finances. Nothing in either case could justify Roberts’s extraordinary claim that any ambiguity in a student display outside school must be resolved in favor of censorship. His opinion is another example of Fried’s formula: that a court may say “no further” to a principle endorsing free speech for students if it can find any more recent cases in which student speech was limited, without any explanation of why the original principle was wrong or why the intervening decisions could not be incorporated within it. Once again, this is an invitation to lawless adjudication.

  1. *

    Justice Sandra Day O’Connor, who wrote the majority opinion in the Michigan Law School case, voted with the five-justice majority in Gratz. She made plain in a concurring opinion in the latter case that she was applying the same standard in both cases. For a discussion of the cases, see my article “The Court and the University,” The New York Review, May 15, 2003.

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