Speaking of the Split

The U.S. Supreme Court has often seemed as notable for the frequency of its 5-4 split decisions as for the sub stance of the decisions themselves. And the past few months have certainly been no exception.

As the court now stands, the usual five-member majority (consisting of Chief Justice Earl Warren and Justices Hugo Black, William Douglas, William Brennan Jr. and Arthur Goldberg) is characterized as "liberal." The four-member minority (Justices Tom Clark, John Marshall Harlan, Potter Stewart and Byron White) is called "conserva tive." But once those labels are at tached, comes the rub -- and a prodigious amount of punditical energy is used in trying to describe the difference between a Supreme Court liberal and a Supreme Court conservative.

"A National Schoolmaster." That difference, of course, lies in the conflict between the liberal notion that the Supreme Court should interpret the law according to the individual, often individualistic, sense of justice and injustice of its members, and the conservative proposition that Supreme Court decisions must be limited by the constitutional and legislative laws of the land.

Last week two justices -- Goldberg for the liberals and Harlan for the conservatives -- spoke at the annual convention of the American Bar Association in Chicago and articulated, as rarely be fore, the difference between the two viewpoints.

Goldberg, speaking first, argued for a wide-open-door policy in Supreme Court interpretation of the law. Said he: "Reassertion of the fundamental character of the Constitution, not as a treaty between the States, but rather as a charter emanating directly from the people, is ever necessary in the face of asser tions, made even to this day, that the States, or rather their legislatures, are to be the final judges of their own powers and those of the national government . . . These echoes of nullification are denied by the Constitution itself and by our national experience. They have no place in our day when our unity as a people is indispensable for survival.

"It has been rightly said of our court that it is a national schoolmaster, and of our opinions that they represent the dialogue of the participants in a great seminar dedicated to the realization of the goals and values of our constitutional democracy."

"Subtle Mischief." The next day, Harlan* spoke--and his ideas could hardly have been more divergent. Said Harlan: "One of the current notions that holds subtle capacity for serious mischief is a view of the judicial' function that seems increasingly coming into vogue. This is that all deficiencies in our society which have failed of correction by other means should find a cure in the courts . . . Some well-meaning people apparently believe that the judicial, rather than the political, process is more likely to breed better solutions of pressing or thorny problems. This is a compliment to the judiciary, but untrue to democratic principle.

"A judicial decision which is founded simply on the impulse that 'something should be done,' or which looks no further than to the 'justice' or 'injustice' of a particular case, is not likely to have lasting influence . . . Our scheme of ordered liberty is based, like the common law, on enlightened and uniformly applied legal principle, not on ad hoc notions of what is right or wrong in a particular case."

*Harlan is the grandson of the first Justice John Marshall Harlan, the Supreme Court's "Great Dissenter" (316 dissents in his 33 years on the high court bench). In 1896 he prophetically dissented from the court's opinion that state laws providing "separate but equal" facilities for Negroes were constitutional.

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