The Need for Reasons

THE Nixonian rubric laid upon the Burger Court is "Strict construction of the Constitution." If history is any guide, critics will soon accuse the court of ignoring this mandate in favor of personal opinions or even partisan politics. And the shrewdest critics will be the nation's ablest court watchers--the legal scholars who often find the court guilty of faulty legal reasoning.

Scholars have lambasted court rulings that go back as far as the seminal Marbury v. Madison decision (1803), which asserted the court's power to overturn congressional legislation. They gasp at the Dred Scott case (1857), which denied that a Negro could be a U.S. citizen. They are still apoplectic over Koreinatsu v. U.S. (1944), complaining of its shabby justification for interning 70,000 Japanese-American citizens. Just as they winced throughout the Warren years, they are beginning to look askance at the Burger era. Says University of Chicago Law Professor Philip Kurland: "We have no evidence yet that the new court will afford principled opinions justifying its conclusions. Evidence to date suggests rather that it will emulate the Warren Court in this regard."

What if it does? Who besides a few law professors and commentators really cares about "principled" decisions? Isn't a decision itself far more important than any arcane reasoning that might justify it--especially if the public applauds?

In fact, sound reasoning is crucial to the nation's stability, because it buttresses the Supreme Court's authority as the final umpire that rules on claims to power--whether by states against federal agencies, or by government against individuals. Sound reasoning validates the court's role as interpreter of the Constitution, mediator of national experience, symbol of values that transcend politics.

One of the Supreme Court's great tasks is moderation, the accommodation of rival interests and especially so in a nation undergoing explosive social change. Unless decisions are explained with sufficient care, lower courts may be unclear about the broad principles they are supposed to apply in particular cases. When the Supreme Court scants reason in favor of mere results, says Stanford's Gerald Gunther, a decision may be "valid only as long as you have a majority of five votes. As the reasons get weaker, a later judge is freer to follow his own likes and dislikes. A decision is then easier to overturn."

According to Chief Justice Charles Evans Hughes, "the Constitution is what the judges say it is." But saying what it is in a highly disciplined way--making exact distinctions, refining a principle to fit diverse cases--that is the high art judges are chosen to practice. Deluged with 3,500 cases a year, expected to write more than 100 often highly complex decisions, Supreme Court Justices may understandably disappoint their critics. Indeed, many critics (joined by Chief Justice Burger) endlessly urge the court to cut its workload, accept only truly vital cases and take more time for reflection.

Haste breeds arbitrary decisions that are no more than edicts, or "absolute" principles that soon collide with other principles, fail to resolve conflicting interests, or collapse in the face of experience. By contrast, great judging requires intense effort, a consuming passion for the public interest, a scorn for personal whims. No fealty to that effort was ever more impressive or poignant than that shown by Justice Felix Frankfurter, dissenting from a court ruling that Jehovah's Witnesses could not be forced to salute the flag in public schools. "One who belongs to the most vilified and persecuted minority in history," wrote Frankfurter, "is not likely to be insensible to the freedom guaranteed by our Constitution. But as a member of this court, I am not justified in writing my private notions of policy into the Constitution, no matter how deeply I may cherish them or how mischievous I may deem their disregard."

Whether or not Frankfurter was right about the extent of the Constitution's requirements, few questioned his devotion to the idea that principles surpass preferences. For that reason, he had the respect of many who disagreed with him, and that respect surely enhanced the court's authority as well as his own. To be sure, Justices do make value choices. But in such cases, Columbia's Herbert Wechsler has said, they "are bound to function otherwise than as a naked power organ. This calls for facing how [those choices] can be asserted to have any legal quality." In short, why should anyone listen to the Justices? "The answer, I suggest, inheres primarily in that they are--or are obliged to be--entirely principled. A principled decision is one that rests on reasons with respect to all the issues in the case, reasons that in their generality and their neutrality transcend any immediate result that is involved."

Wechsler's call for neutral principles, sounded in 1959, has been amplified by Yale's Alexander Bickel in his book The Supreme Court and the Idea of Progress. "The heart of the matter," Bickel said recently, "is that you can't persuade people that you operate differently from the politicians, who after all can be voted out of office, unless you pursue some other process than they pursue. And that other process has to be one of applying reasons rather than playing group politics." If that is not the case, "the point is that over time, a longish period of time, the profession and those who observe the court closely, are persuaded that this bunch of people isn't using its head, that they are motivated much more politically. That opinion by the experts will eventually pervade other strata of opinion --and then the court's authority will be badly undermined."

Such a fate ultimately plagued the Warren Court. Examples abound. The Warren Court's application of most Bill of Rights safeguards to all criminal defendants now seems as self-wounding to the nation's highest tribunal as it then seemed vital to American justice. By overlooking the real fears of a crime-ridden society, the court made itself a political target, which in turn encouraged police evasion of its rules, the very official lawlessness that it had aimed to curb in the first place.

To be sure, the Warren Court had only faced up to the cases that came before it, many of them rooted in long neglect of individual rights by state courts and legislatures. Still, better-reasoned decisions could have mollified the court's legal critics and perhaps to some extent the public. The lesson is clear: judicial craftsmanship outranks judicial crusading.

The far cooler Burger Court seems unlikely to stir the nation, more likely to let the law jell for a time, as its predecessor had begun to do. It seems to lean toward a different Supreme Court role: providing calm at a time of dislocation and national self-questioning. Yet the Burger Court may also risk a kind of partisanship, a tendency to resist social change, favor police power and not hear the claims of minority groups, to whom the Supreme Court had recently become the most responsive branch of Government. None of this necessarily means that the Burger Court is unrealistic. It has surely read the election returns. Whether that will help it foster genuine respect for law is not yet clear.

Law rests on the proposition that men can use their power of reason to improve the structure of their lives. The Justices, armored with life tenure, are in the unique position, says Columbia Law Professor Tom Farer, of being able "to seek out and identify those values and assumptions which are most fundamental in the American culture." A sense of continuity is ever more precious in a world assaulted by change. That fact makes it more essential than ever that the principles embraced by the court be imbued with as much intelligence and wisdom as possible. Every successive failure by the court to think a problem through to a durable solution will be less and less acceptable. That the present Justices are struggling to meet the need is doubtless true. It is also fair to say that they are doing less well than they might.

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