Supreme Or Not Supreme

By Richard Lacayo

Almost from the day he took office, Attorney General Edwin Meese has been feuding with the U.S. Supreme Court, grousing over its decisions and accusing the majority of failure to observe the intentions of the men who wrote the Constitution. Despite setbacks last term, when the court rejected Justice Department positions on such issues as affirmative action and abortion, Meese is still a man on the offensive. In a speech last week at Tulane University in New Orleans, he escalated his challenge to the high bench's authority. Quite simply, he said, Supreme Court decisions are not so supreme after all.

Charging that the court sometimes seems "to equate the judge with the lawgiver," Meese argued that although high-court decisions made "constitutional law," they were not synonymous with the Constitution itself. Neither were they even the last word on the meaning of its provisions. Each of the three branches of government, he said, "has a duty to interpret the Constitution in the performance of its official functions."

Meese focused his attack on Cooper vs. Aaron, a 1958 decision prompted by Arkansas Governor Orval Faubus' defiant resistance to the court's earlier landmark school-desegregation ruling, Brown vs. Board of Education. In a unanimous decision, the Justices pronounced that their decisions were the "supreme law of the land." Nonsense, said Meese. Yes, a Supreme Court decision "binds the parties in a case and also the Executive Branch for whatever enforcement is necessary. But such a decision does not establish a 'supreme law of the land' that is binding on all persons and parts of government, henceforth and forevermore."

The context as well as the content of Meese's conclusions disturbed many legal observers. His Justice Department has been a pugnacious one that has not always seemed sensitive to minority interests and individual liberties. One day after the Tulane speech, Meese continued his push on another front, endorsing the contentious findings of his commission on pornography and creating a special group within the Justice Department to pursue obscenity prosecutions. But it was the Tulane speech that raised the most hackles. Said Ira Glasser, executive director of the American Civil Liberties Union: "It reinforces Mr. Meese's growing reputation as the most radical and dangerous Attorney General in this century."

Unwillingness to acquiesce to the court has a long history in American politics. Presidents from Jackson to Roosevelt have chafed at its authority and challenged its judgments. Conservative legal scholars welcomed the Attorney General's remarks as part of a venerable debate about the bounds of judicial power. "The founding fathers would roll over in their graves if they knew the awesome power the court arrogated to itself," asserts Paul Kamenar of the conservative Washington Legal Foundation. "The Constitution says that constitutional laws and treaties are the supreme law of the land," maintains University of Texas Law Professor Charles Alan Wright, "not Supreme Court decisions."

In one sense, Meese's remarks are unexceptional. Technically, the court's rulings do indeed apply only to the parties in the suit. But its decisions are also binding upon lower courts in all similar cases. Litigants may try to point out differences between the circumstances of their case and the ones already decided. Such arguments can lead the Supreme Court to refine and clarify its position, as it has done in the areas of affirmative action and the death penalty. Some lawsuits also successfully urge the court to reverse itself entirely, a step it has taken more than 180 times.

The Attorney General, though, seemed to suggest that more vigorous kinds of opposition by officials were also legitimate. Without mentioning him by name, Meese cited with approval the example of newly appointed Federal Judge Daniel Manion, who as an Indiana legislator once introduced a bill just slightly different from a law already declared constitutionally invalid. To Meese's critics, his most troubling contention was that in general only the parties to a suit are bound by a court decision, which implied that no one else was. "What makes the law effective is voluntary compliance," says the NAACP Legal Defense and Educational Fund's Barry Goldstein. "What if every school district in the country decided to have school prayer and every single case had to be litigated?" Could legislators simply ignore court rulings when drawing up new laws and regulations? Taken to its logical extreme, Meese's view seemed to some to promise legal anarchy. Ohio Democratic Senator Howard Metzenbaum, a Meese foe on the Senate Judiciary Committee, accused the Attorney General of "advocating a policy of lawlessness that would lead to total disruption."

Justice Department Spokesman Terry Eastland contends that the naysayers have misinterpreted his boss, who only meant to stress that those who believe a decision is wrong may seek out legitimate ways to overturn it. Eastland points to the example of civil rights groups, which for years submitted briefs to the court urging the reversal of Plessy vs. Ferguson, the 1896 decision upholding segregation. Meese has made clear that he believes issues such as abortion and the rights of the accused remain similarly unsettled.

With just over two years left in the Reagan Administration, the battle is likely to intensify. "Sometime in the 1930s we recognized that the Supreme Court is the final interpreter of the Constitution," says Columbia University Law Professor Louis Henkin. "Mr. Meese is trying to change the system % accepted by the American people." But times change, counters Eastland, and so does the court majority. "We're in a constitutional era where decision after decision is very close. It is a period of considerable ferment." Ferment indeed. "Mr. Meese must sit up nights thinking 'I haven't provoked the legal profession in recent weeks,' " says University of Michigan Law Professor Yale Kamisar. If that were his only motive, the Attorney General should be able to sleep easier for a while.

With reporting by Anne Constable/Washington, with other bureaus