During Reconstruction, when the Southern states were still under military occupation, a Mississippi editor who was an “unreconstructed rebel” published an editorial in the Vicksburg Times called “The Scoundrelism of Satraps.” It severely criticized the Yankee general in command of that area. The editor was arrested and held for trial before a military commission under the Reconstruction Acts. He sought his freedom on a writ of habeas corpus, and when this was denied by the circuit court, appealed to the Supreme Court.
The radicals in Congress, fearing that he would win and that the Court might hold the Reconstruction Acts unconstitutional, as indeed a majority seemed about to do, took an extra-ordinary step. Though the Court had already taken jurisdiction and heard argument in the case, Congress over President Johnson’s veto passed a rider amending the Judiciary Act of 1789 to withdraw jurisdiction in habeas corpus appeals from the Supreme Court. Thereupon in Ex Parte McCardle (7 Wall. 506) the Court, in 1869, regretfully dismissed the editor’s appeal on the ground that authority to hear it had been withdrawn.
This obscure, dubious, and difficult case is the nearest thing to a precedent in American constitutional law for a bill Nixon has submitted to Congress. This declares a “moratorium” on all busing decisions by the federal courts until July 1 of next year or until the passage of its companion measure in his anti-busing program, the “Equal Opportunities Educational Act of 1972,” if that should be passed earlier. The effect of Ex Parte McCardle was to prevent the Supreme Court from enforcing a basic constitutional right, that of habeas corpus. The purpose of “The Student Transportation Moratorium Act of 1972,” as submitted to Congress by Nixon, is to prevent the Supreme Court and the lower federal courts for a time from enforcing, as they deem necessary, the constitutional right of blacks and other minorities to nonsegregated schools under the “equal protection” clause of the Fourteenth Amendment.
The constitutional question raised in both cases could hardly be more fundamental. Can Congress by legislation block the courts from enforcing fundamental rights? This casts a shadow far beyond the issues of school desegregation or of busing as one means of implementing it.
This is the second time in less than a decade that the Republicans have put forward this particular ploy to undercut Supreme Court decisions they disliked. In August, 1964, the late Senator Dirksen, then minority leader of the Senate, offered a similar “moratorium” rider to suspend for two to four years the historic “one man, one vote” reapportionment decision of the Supreme Court two months earlier. This brought a sharp protest from fifteen of the country’s most prestigious law school deans and law school professors, including Erwin N. Griswold, then dean of Harvard Law School and now solicitor general.1
What they said then of the Dirksen rider applies equally to the busing “moratorium” rider the Administration is now seeking. They said the effect is not merely “to limit the jurisdiction of the federal courts.” It is “to declare by statute, without constitutional amendment, that for a period of time certain constitutional rights may not be vindicated in any court, state or federal.” Only once before in our history, the law professors said, citing the McCardle case, had Congress “acted to prevent a constitutional decision which it anticipated.” Most historians and legal analysts, they went on, “have regarded the McCardle case as an unfortunate episode in our history” which “ought not to be repeated in this even more drastic form.”2
What happened in McCardle and what Nixon proposes now are linked in the painful history of the attempt to achieve full emancipation from slavery. The difference is that then a radical majority sought to enforce the rights of the freedman. Now a conservative white majority under Nixon’s leadership seeks to hand his descendants a setback. For the issue is not busing—busing for better white schools and busing for segregated black schools are accepted and familiar devices. The issue is not to have to go to school with slum children, black, brown, or white. As an outraged white resident of Coy, Alabama, put it to a reporter for the Wall Street Journal (see the article by Neil Maxwell, March 20), “As long as we don’t have niggers on there, it’s not busing. Busing is making white children get on with niggers.” That is the naked issue and that is the real feeling to which Nixon, Wallace, and Democratic opportunists like Humphrey have been pandering.
A constitutional, a moral, a racial, and an educational crisis are intertwined in the controversy Nixon has precipitated by his anti-busing program. It comes at a time when he has been engaged for several years in shaping a new Supreme Court majority which will be as mediocre and compliant as the choices he can get past the Senate. It comes when the Senate is even now wrestling with the question of whether to confirm as attorney general a Goldwaterite Republican indifferent both to civil liberties and minority rights.
A sketch of Richard Kleindienst in the Harvard Law Record of March 3 (he was graduated from Harvard Law School in 1950) recalls that in November, 1969, when 300,000 people were expected in Washington to protest the war, Kleindienst in a planning session advocated mass arrests in case of violence. “When questioned about the constitutionality of his plan, he brusquely replied,” says the account in the Record, “‘We’ll worry about the Constitution later.”‘ That seems to be his attitude still as the President’s acting attorney general in formulating this new anti-busing program.
At the White House press briefing on March 17, the acting attorney general showed the same lack of candor and the same talent for the disingenuous that he has demonstrated so fully before the Senate Judiciary Committee. He was asked at the briefing to address himself “to the overall question of constitutionality and particularly the constitutionality of the moratorium legislation.” Instead of beginning with an honest admission of the constitutional complexities and of the fact that even Ex Parte McCardle isn’t precedent enough, he began by trying to give the impression that there was no difficulty whatsoever. Only slowly and reluctantly did he admit some of the truth.
This was his progression from bland misrepresentation to damaging admission: First he said that “there can be no legitimate doubt whatsoever” that Congress under Section 5 of the Fourteenth Amendment and Article III of the Constitution had the power to enact the new anti-busing legislation. This can only be described as the most whopping oversimplification of the year. He said that “many constitutional lawyers had been consulted” and “the opinion of all that I know” agreed that when the moratorium bill was combined with the longer range “equal educational opportunities act” Congress “certainly…has the power.”
All one can conclude from this is that the acting attorney general’s acquaintance among constitutional lawyers must be extremely limited. Section 5 of the Fourteenth Amendment gives the Congress power “by appropriate legislation” to “enforce” the amendment’s grant of equal protection. But any legislation framed not to enforce but to undercut its great purposes would be held unconstitutional by any Supreme Court that did its duty. As recently as 1965 in Katzenbach v. Morgan (384 US 641), the Court, speaking through Mr. Justice Brennan, said that Section 5 “does not grant Congress power to restrict, abrogate or dilute” the amendment’s guarantees of equal protection and due process.
Nor can Article III readily be used for the purpose Kleindienst would assign to it. Article III says the Supreme Court, aside from certain enumerated types of cases, “shall have appellate jurisdiction, both as to Law and Fact, with such Exceptions and under such Regulations as the Congress shall make.” But few if any constitutional lawyers today would agree that this regulatory power can be used by Congress, as in Ex Parte McCardle, to prevent the Supreme Court from enforcing fundamental rights guaranteed by the Constitution or from operating as an independent check on the legislative and executive branches of the government. If it could, we would have parliamentary supremacy, as in England, rather than a government of separation of powers with “checks and balances.” In that case minorities would have no judicial protection against majorities.
The real meaning of Article III and the extent to which it may give Congress power over constitutional adjudication is a recurrent subject of controversy whenever Supreme Court decisions displease a substantial body of opinion. In the Thirties radical New Dealers, myself among them, looked to Article III and re-examined Ex Parte McCardle to see if these offered any hope of curbing the “nine old men” of the Supreme Court who were striking down one New Deal reform after another.3 FDR tried his “court packing” plan as a remedy when it became all too obvious that the “exceptions” clause of Article III and Ex Parte McCardle were wan hopes. How wan they remain today was demonstrated just before the White House briefing in which Kleindienst participated.
If he had indeed consulted “many constitutional lawyers” and obtained their advance approval, who and where were they? Why were they not produced to back him up at the White House briefing? Two law professors, Robert Bork of Yale and Charles Alan Wright of the University of Texas, were on hand to give their views but ducked out when told they would be talking on the record with two dozen reporters. They had been told they would be talking only off the record and to a picked few. If the constitutionality of the Nixon anti-busing program is as clear as Kleindienst says it is, one wonders why the only two professors he could marshal refused to say so in public.4
The full flavor of Kleindienst’s presentation is best savored from the climactic portion in the transcript. After he told of the lawyers he had consulted, he was asked a plain question but tried his best to evade a plain answer:
Q. Is there a precedent in case law for this kind of action?
Mr. Kleindienst: The Congress has dealt with the question of remedy in the courts going clear back to 1793 in one way or another. So, to that extent, there is a precedent, and that, I think, is what permits constitutional lawyers to say that Congress has that power. There is no precedent in exactly this kind of situation…. [Emphasis added.]
Even after that admission, he fuzzed the picture and tried to mislead the reporters by going on to say, “…but the Congress, for instance, in the National Labor Relations Act, determined a national policy that was to apply between employees and employers in representation. That, again, is a question of remedy. The Supreme Court has said what the remedy would be under certain circumstances. So, constitutionally, I think there is ample precedent.”
This confuses statutory with constitutional rights. The National Labor Relations Act established certain statutory rights and the remedies to enforce them. In representation cases appeals to the courts are restricted to protect the rights of workers and the authority of the National Labor Relations Board from interminable interference by injunction.5 When Congress establishes statutory rights, it can provide, change, or withdraw not only the remedies but the rights themselves. But rights created by the Constitution are not subject to restriction or withdrawal by Congress. Constitutionally the precedents for what Nixon is trying to do are not only not “ample,” to use Kleindienst’s word, they are non-existent. Even Ex Parte McCardle didn’t withdraw the right of habeas corpus from that Confederate editor. He appealed for the writ in the circuit court and lost. All Congress did on the face of it was to withdraw the Supreme Court’s appellate jurisdiction so he could not get a reversal in the Supreme Court. The radicals could argue that neither the right to habeas corpus nor the remedy was withdrawn. Kleindienst was mumbling through his hat.
This is where the constitutional problems begin with Nixon’s long-range measure, his “equal educational opportunities” bill. In some ways the unconstitutionality of this bill is even plainer than his other bill for a temporary “moratorium.” For the longer range measure seeks to restrict the remedies the courts may apply in school desegregation, especially busing, and thus nullify their power to enforce constitutional rights created by the “equal protection” clause of the Fourteenth Amendment.
But before we go into the legalities, I would like to call attention to the vagueness of the factual presentation on busing in the White House briefing. If the Administration were going into the Supreme Court in a plea against busing, the first requirement would be evidence for Nixon’s TV assertion that busing had reached “massive” and unreasonable proportions. In this respect the briefing was not only unsatisfactory but confusing. At one point toward the end the question was asked:
If, as the experts have testified here, we do not even know the extent of busing involved in the desegregation process, then what is the hard evidence that supports a Presidential call for a moratorium on busing?
To this Mr. Ehrlichman could only furnish a long, emotional but inconclusive answer the gist of which was, “Every place you go around this country” this is “the front-burner issue in most local communities.” But there are some figures and they do not support the hysteria whipped up during and since the Florida primary.
The latest issue available of the Digest of Educational Statistics 6 carries a table on the number and percent of public school pupils transported at public expense. This shows a sharp rate of increase in public transportation in the quarter-century before the school desegregation decision in 1954. The percentage transported was 7.4 percent in 1929. In the next ten years it more than doubled to 16.3 percent in 1939. In the next decade it went up by three-quarters to 27.7 percent in 1949. In the school year of the Brown decision, 1953-54, it had risen to 32.8 percent. In all those years there was no outcry against busing. Busing made possible the transition from the one-room schoolhouse to the consolidated school. The outcry against busing only began when it was used to mix white with colored, affluent with poor.
In the years since Brown, the percentage of bused schoolchildren has risen to almost 45 percent. But less than 3 percent of the total, according to a speech in the House on March 22 by Congressman Stokes (D., Ohio), chairman of the Black Caucus, “are bused for purposes of desegregation.”
The figure is startling and it is up to the Nixon Administration to rebut it. It begins to seem less startling when one looks at the statistical tables that accompanied the Stokes speech. These originated with an HEW release of last June 13 on the progress made in desegregating schools. The figures show that in 1970, 71.8 percent of all black pupils were in schools where 80 to 100 percent belonged to a minority race. The percentage of black pupils going to schools where more than half the students were black or brown was 83.9 percent. The figures show that Nixon was, as Stokes said, “tragically and grossly incorrect” when he declared in his TV address on busing that “the dismantling of the old dual system has been substantially completed.” Only 16.1 percent of all black pupils were in schools where more than half the pupils were white.
Busing may be far from satisfactory but the courts have been driven to it by years of skillful evasion of desegregation decisions. To abandon it in the absence of better remedies is to risk a deepening of racial disillusion and bitterness. The new Nixon legislation, under cover of the anti-busing hysteria, would invite resegregation. At the White House briefing the press was assured that no “rollback” was intended, but that is exactly what Section 406 of Nixon’s “equal opportunities” bill invites. It says:
On the application of an educational agency, court orders or desegregation plans under Title VI of the Civil Rights Act of 1964 in effect on the date of enactment of this Act and intended to end segregation of students on the basis of race, color or national origin shall be reopened and modified to comply with the provisions of this Act.
Just to make the purpose clear to the least discerning, this provision carries the heading “Reopening Proceedings.” Segregationists and white supremacists will be down like a swarm of hornets on any school board that does not take advantage of these provisions. The proposed act holds multiple attractions for those who would like to turn back the clock. Title IV, Section 402, “Remedies,” spells out all the old dodges school boards have used since Brown to avoid integration and provides that no busing may be ordered by a court “until it is demonstrated by clear and convincing evidence”7 that “no other method set out in Section 402 will provide an adequate remedy.” Since one of the methods spelled out is “the construction of new schools,” this is another route to “separate but equal,” the old Plessy v. Ferguson Jim Crow doctine the Brown decision in 1954 was supposed to have outlawed.
Nixon’s bill would upset almost two decades of adjudication and sprinkle the path of integration with new legal pitfalls. An example is in Section 401, which says that a court can impose “only such remedies as are essential to correct particular denials of equal educational opportunity.” What does “particular” mean? It might mean that each separate “denial” would require separate judicial action.
Looked at as a whole the two new bills clearly represent an attempt to turn back the clock and to override the Court’s authority in enforcing constitutional rights. It would take a Supreme Court packed with lawyers like Carswell, Rehnquist, and Kleindienst to rubber stamp this program as constitutional. Certainly Nixon must go far to the right of his own Chief Justice Burger and his own appointee Blackmun to obtain judicial approval. For Burger wrote, and Blackmun joined in, the unanimous opinion last April 20, 1971, Swann v. Charlotte-Mecklenburg Board of Education, which for the first time explicitly approved busing as a tool of integration and unleashed the white racist hysteria to which Wallace, Nixon, Humphrey, and many others who know better have been pandering.
Nixon’s own chief justice seems to be replacing Warren as the target of rightist slander. When Nixon, with sly demagogy, talked in his TV address of March 16 about busing children “across a city to an inferior school just to meet some social planner’s concept of what is considered to be the correct racial balance,” he was caricaturing and distorting Burger’s decision in Swann. The below-the-belt quality of Nixon’s rhetoric is brought into sharp focus when one recalls that the chief justice explicitly rejected the idea of a “correct racial balance” in favor of a pragmatic and flexible approach.
“The constitutional command to desegregate schools,” Burger ruled in Swann, “does not mean that every school in every community must always reflect the racial composition of the school system as a whole.” It would be amusing to know what the chief justice muttered to Mrs. Burger at this point in Nixon’s TV address.
In all Nixon’s career there has rarely been a trickier performance than in the presentation of his anti-busing program. Its unveiling on TV was misleading, its offer of new funds for “quality education” was deceptive, the gap between his presentation and the fine print in his legislative program becomes deeper the longer it is studied. “Mr. Nixon,” Congressman Conyers of Detroit told the House on March 22, “is playing a game which threatens to tear at the already delicate legal and social balance in this country. He has chosen to cater to the fear of the powerless and to manipulate the power of the fearful.” To the President’s untrust-worthy promises of quality education in the ghettos, this leading spokesman for the Black Caucus replied that even if Nixon were really offering new and adequate funding (which he is not):
Quality education is more than airy classrooms, well-paid teachers, and lots of books. There can be no quality education without integration. Quality education means an educational experience which will lay the foundation for intelligent participation in a democratic society. Children who are raised in isolation can hardly be expected to understand their society and its workings.
Integration has its hardships. Black as well as white children do suffer in adjusting to it. But these are the pains of movement toward multi-racialism. To stop the progress after so much sacrifice and disruption, to move back toward the past, to play on people’s worst instincts is to risk America’s future for the lowest kind of politics. The problems of education in our society are complex and appallingly difficult. No one has a full, much less an easy, answer. But the way toward it will not be found by diverting emotion and energy to the false and peripheral problem of busing. The price of failure is to drift further toward a country irreconcilably split into two hostile nations, a giant Ulster bound sooner or later to erupt.
AS THE MILITARY-AEROSPACE COMPLEX SEES IT
Florida Democratic presidential primary, for all its regional aspects and submergence in the emotional issue of school busing, pointed to one thing about the U.S. presidency: it probably can’t be won in 1972 on an anti-technology [a new euphemism for the military-industrial complex—IFS], anti-aerospace platform. All candidates who campaigned against so-called “misdirected priorities” in space and defense programs were soundly beaten, including former front-runner Senator Muskie…on the advice of his campaign staff, he spoke out against the space shuttle even in Brevard County, home of the Kennedy Space Center. He finished fifth in that county…. Statewide, the only other major Democratic candidate to take an anti-technology stance, Senator McGovern, finished even lower than Senator Muskie….
If the Wallace pattern repeats itself in 1972, i.e., basically a one-issue regional candidate, big winners in the Florida primary become Senators Humphrey and Jackson, both strong boosters of U.S. leadership in technology. Senator Humphrey has apparently successfully atoned for his vote against the supersonic transport in the last session of Congress as far as labor unions are concerned. He will receive increasing support from that job-conscious quarter as the campaign progresses. Thus the Democratic nominating process appears to be narrowing down to a Humphrey-Jackson race, and possibly a ticket in the same name, with the liberal wing apparently isolated by the issue of employment.
—Aviation Week & Space Technology, March 20, 1972—IFS
“I don’t believe Nixon wants to go down in history as the President who repealed the Fourteenth Amendment. I believe he just wants to stagger through November. After the election he might even be willing to enforce the law.”
—Louis Lucas, attorney for the plaintiffs in the Richmond, Virginia,
school case, commenting on Nixon’s TV attack on buses, Washington Post, March 18, 1972—IFS
April 20, 1972
The list of signers and the full text may be found in the New York Times for August 10, 1964. Also see the discussion on pp. 387-8 of The Constitution and the Supreme Court: A Documentary History, Vol. II, edited by Louis H. Pollak (World, 1966). ↩
“There is a serious question,” Justice Douglas wrote for himself and Justice Black in Glidden v. Zdanok (370 US 530), “whether the McCardle case could command a majority view today.” ↩
For the most comprehensive argument along these lines see Louis B. Boudin’s Government by Judiciary (1932, reprinted by Russell & Russell, 1968), a two-volume work of enormous scholarship by a man who was in his time a distinguished Marxist scholar and a leading New York labor lawyer. The most recent study of the problem is Congress v. The Supreme Court by Raoul Berger (Harvard University Press, 1969), which is written with distinction. He concludes that the framers intended the Supreme Court to wield the ultimate weapon of the judicial veto and that they never intended the “exceptions” clause of Article III to become a Congressional “check on the Court’s constitutional decisions.” ↩
According to John P. MacKenzie in the Washington Post, March 18, Bork’s colleague at Yale, Alexander Bickel, recently told the House Judiciary Committee that a bill similar to the Administration’s would fail a modern test. Congress “can assign large tasks to the Federal courts” under Article III “and take the tasks away,” Bickel said. But he acknowledged that it can’t “pick and choose” by stripping power when it doesn’t like what the courts have done. ↩
Kleindienst’s labor law is also deceptive. The predecessor labor board, established by executive order, had never been able to bring about a labor representation election where the employers balked because they found it so easy to enjoin the board in the courts. The hearings on what became the Wagner Act show that Congress restricted appeals from orders for representation elections to remedy this situation. Appeals to the courts were provided only where an employer, after such an election, refuses to bargain. He can then be hailed into court by the board for an enforcement order and thus obtain a judicial review indirectly. ↩
Publication No. OE 10024-70 (Department of Health, Education and Welfare, 1970). See Table 46, p. 36. ↩
This, the standard proof required for fraud in civil cases, is far more strict than any of the more familiar standards for regulatory agencies. It represents another hurdle to successful integration suits. ↩