AN IMPERIAL JUDICIARY: FACT OR MYTH?

Abram Chayes Ira Glasser Antonin Scalia Laurence Silberman The American Enterprise Institute for Public Policy Research, established in 1943, is a publicly supported, nonpartisan, research and educational organization. Its purpose is to assist policy makers, scholars, businessmen, the press, and the public by providing objective analysis of national and international issues. Views expressed in the institute's publications are those of the authors and do not neces­ sarily reflect the views of the staff, advisory panels, officers, or trustees of AEI.

Council of Academic Advisers Paul W. McCracken, Chairman, Edmund Ezra Day University Professor of Busi­ ness Administration, University of Michigan Robert H. Bork, Alexander M. Bickel Professor of Public Law, Yale Law School Kenneth W. Dam, Harold ]. and Marion F. Green Professor of Law, University of Chicago Law School Donald C. Hellmann, Professor of Political Science and International Studies, University of Washington D. Gale Johnson, Eliakim Hastings Moore Distinguished Service Professor of Economics and Provost, University of Chicago Robert A. Nisbet, Resident Scholar, American Enterprise Institute Herbert Stein, A. Willis Robertson Professor of Economics, University of Virginia Marina v. N. Whitman, Distinguished Public Service Professor of Economics, Uni- versity of Pittsburgh James Q. Wilson, Henry Lee Shattuck Professor of Government, Harvard University

Executive Committee Herman J. Schmidt, Chairman of the Board Richard J. Farrell William J. Baroody, Jr., President Richard B. Madden Charles T. Fisher III, Treasurer Richard D. Wood

Gary L. Jones, Vice President, Edward Styles, Director of Administration Publications

Program Directors Periodicals Russell Chapin, Legislative Analyses AEI Economist, Herbert Stein, Editor Robert B. Helms, Health Policy Studies AEI Foreign Policy and Defense Thomas F. Johnson, Economic Policy Studies Review, Robert J. Pranger and Donald C. Hellmann, Sidney L. Jones, Seminar Programs Co-Editors Marvin H. Kosters/James C. Miller III, Public Opinion, Seymour Martin Government Regulation Studies Upset, Ben J. Wattenberg, Co­ Editors; David R. Gergen, Jack Meyer, Special Projects (acting) Managing Editor W. S. Moore, Legal Policy Studies Regulation, Antonin Scalia and Murray L. Weidenbaum, Rudolph G. Penner, Tax Policy Studies Co-Editors; Anne Brunsdale, Managing Editor Howard R. Penniman/ Austin Ranney, Political and Social Processes William J. Baroody, Sr., Robert J. Pranger, Foreign and Defense Counsellor and Chairman, Policy Studies Development Committee AN IMPERIAL JUDICIARY: FACT OR MYTH? John Charles Daly, Moderator Abram Chayes Ira Glasser Antonin Scalia Laurence Silberman

Held on December 12, 1978 and sponsored by the American Enterprise Institute for Public Policy Research Washington, D.C. This pamphlet contains the edited transcript of one of a series of AEI forums. These forums offer a medium for informal exchanges of ideas on current policy problems of national and international import. As part of AEI's program of providing opportunities for the presentation of competing views, they serve to enhance the prospect that decisions within our democracy will be based on a more informed public opinion. AEI forums are also available on audio and color-video cassettes.

AEI Forum 26

© 1979 by the American Enterprise Institute for Public Policy Research, Washington, D.C. All rights reserved. No part of this publication may be used or reproduced in any manner whatsoever without permission in writing fromthe American Enterprise Insti­ tute except in the case of brief quotations embodied in news arti­ cles, critical articles, or reviews. The views expressed in the publications of the American Enter­ prise Institute are those of the authors and do not necessarily reflectthe views of the staff,advisory panels, officers,or trustees of AEI. "American Enterprise Institute" is the registered service mark of the American Enterprise Institute for Public Policy Research.

ISBN 0-8447-2145-X Library of Congress Catalog Card No. 79-64233

Printed in United States ofAmerica OHN CHARLES DALY, formerABC News executive and forummoderator: This Public Policy Forum, part of a series presented by the American Enterprise Insti­ Jtute, is concerned with the checks and balances established by the Constitution among the executive, legislative, and judicial branches of government. For over two centuries, charges of abuse of power have fallenon each of the three branches, but, except during the catastrophic Civil War, imbalances have been redressed by the passage of time and by the inexorable impact of the Constitution's checks and balances. In this era of explosive change, the judiciary is now the target. With the legislative and executive branches often at cross-purposes, with enthusiastic special interests determin­ ing the ethic of the clay, and with the public opinion poll a dominant yardstick in decision making, the courts have become the stage upon which the clay-to-daydrama of the American experiment is played. Out of a massive flood of legislation and rules, great and small public issues come to the courts fordecision. Some are new in concept and demand test; others are vague and evasive. Some bubble up from the executive branch and independent agencies, and others are put forth by en­ thusiastic special-interest groups, who find their interest better served in court than in the labyrinthine path through Congress. This is not a new experience on the American scene. The great French commentator Alexis de Tocqueville noted in 1835 that there was hardly a political question in the United States that did not sooner or later turn into a judicial one. But the charge is now made that the courts functiontoo broadly, and that their decisions culminate in a reordering of the economic, social, and political life of the nation. While recently we heard cries of an imperial presi­ dency, we now hear of an imperial judiciary. Mr. Silberman, yours is a strong voice charging that we are trying to deal with too many of our problems through courts and lawyers. Do you feel that we have an imperial judiciary, and what does that phrase mean?

LAURENCE SILBERMAN, senior fellow, American Enterprise Institute, and formerdeputy attorney general of the United States: It means that one branch of our government, in this case the judiciary, is successfully seeking power at the ex­ pense of the other two branches and, to a degree, at the expense of society as a whole, particularly the private sector. In that sense, we have an imperial judiciary. It has sought, and gained, a great deal of power in the last twenty-five or thirty years, but it has also been given much too much additional power during this period.

MR. DALY: Mr. Glasser, as executive director of the Ameri­ can Civil Liberties Union, the courts are your primary field of battle. Do you find an empire therein?

IRA GLASSER, executive director, American Civil Liberties Union: No, I think that the judiciary is basically a reactive institution. It is the only branch of government that cannot, by itself, initiate action. Therefore, it is necessarily weaker and more limited in its exercise of power than either of the other two branches.

2 The judiciary is charged with adjudicating claims against the majority and with limiting the power of the majority. In that respect, it protects our liberty by setting limits on the other two branches. The charge that it may, in one or another instance, exceed those limits itself derives, I think, froma dissatisfaction with the merits of decisions and is not supportable as a procedural matter.

MR. DALY: Professor Scalia, you have noted that between 1960 and 197 5 the number of cases in the federal district courts and the Supreme Court doubled, while the number of cases in the federal courts of appeals quadrupled. Does this automatically mean that the courts will have a very important impact whether they wish it or not?

ANTONIN SCALIA, professor of law, University of Chicago Law School, and adjunct scholar, American Enterprise In­ stitute: No, not the kind of impact that concerns me. It is not a question of how many cases come before them; it is a question of the type of issue they decide. For example, do they decide whether the citizens of California can have a referendum on the desirability of open-housing laws? Do they decide whether schools should be funded on a local basis so that varying districts can have schools with varying degrees of excellence? Do they decide whether the way to achieve integration in society is to bus students from one school to another? It is the issues they have chosen to decide that is important, not the number of cases that come before them.

MR. DALY: Professor Chayes, you have seen the courts as­ sume responsibility fordesegregating school systems, reap­ portioning legislatures, regulating employment practices of major companies, supervising land use and planning of municipalities, directing credit practices of banks and credit

3 card companies, monitoring environmental quality, and even managing mental institutions and prison systems. In view of the laws and regulations pouring out of legislatures and government agencies in the last two dec­ ades, did the courts have a choice?

ABRAM CHAVES, Felix Frankfurter professor of law, Har­ vard Law School, and former legal adviser to the Depart­ ment of State: You are right in the implication that a growth in judicial visibility is one of the afflictions and diseases of modern civilization. Modern civilization requires us to take the good with the bad. And with the historic tradition of judicial settlement that you described, it seems almost inevi­ table that, in our country, the judicial role will expand. The government is expanding: both the legislative role and the executive role have expanded. It seems obvious that the judicial role would expand as well. The alternative is unchecked legislative or executive power.

MR. Sc ALIA: I guess that shows the extent to w hich we differ, because I took Mr. Daly's implication to be just the opposite: that is, since we have active legislatures that devote their attention in some detail to all sorts of things, should not the judiciary rely upon that process to an even greater degree than it has in the past? Isn't the need forjudicial involve­ ment, at least in one respect, less than it used to be?

MR. CHAVES: Sometimes the legislature works things out in detail, and sometimes it does not. The Internal Revenue code is an example of legislation that was worked out in detail; but with the antitrust laws, the legislature laid down a rule that corporations shall not combine unreasonably in restraint of trade and left the courts to figure out the par­ ticulars. A rather general phenomenon in western countries is

4 that legislatures lay out broad lines of general policy and leave it to others to work out the details. In other countries, it is left mostly to bureaucrats; in our country, to a combina­ tion of bureaucrats, administrative agencies, and courts.

MR. SILBERMAN: The question is not so much the scope or the number of issues that are put to the judiciary. The question is really the quality. Abe Chayes said that he would expect the judiciary to grow in business as the other branches expand, but that is a bit misleading because more of the fundamental policy making has shifted to the judi­ ciary than ever before. Let us assume a steady rate of growth of all three branches in terms of the amount of material before them. I would argue, and I think Mr. Scalia would, too, that more of the fundamental policy making, which in a democracy should be put to the people and their elected representa­ tives, has shifted to the judiciary. Therefore, the legisla­ tures, the Congress, and even the presidency weaken and atrophy.

MR. GLASSER: Let me suggest another distinction that sheds some light on that problem. Mr. Scalia said that it is not the number of decisions that concerns him, but the kinds of decisions. Another distinction is between decisions as to who has rights in various institutions and what happens once the courts adjudicate that those rights exist. Most of what Mr. Scalia would call the detailed management of the institution by judicial decisions arises at the remedy stage. It happens because there is a claim of right. For example, a patient in a mental hospital may claim that he should not be kept there against his will because he has committed no crime. If the court rules in his favor, that is the end of it. The state does not have the power to hold him, and it releases him. But that is not what the courts have

5 ruled. They have ruled that he can be incarcerated for his own good as long as a quid pro quo is given by the state. Thus, if he is being incarcerated not because he is dangerous or has committed a crime, but because he needs treatment, then the state must provide that treatment as a matter of right. Let us say the patient, after going into the mental hospi­ tal, is neglected or brutalized. He makes the claim in court that, if the hospital wants to continue to hold him, he has a right to treatment. If the court decides that he does have that right, then the question is how to mandate it. The court may order the hospital to provide treatment, but three months later the patient is usually back with his lawyer because treatment is not being provided. This happens in prison cases, in mental hospital cases, in cases of fosterc are, children's rights, and school desegre­ gation. The frustrationarises at the point of remedy, when the executive branch, the legislative branch, and public agencies do not respond to the initial court order. We are confrontedwith a right without a remedy, and the court and the lawyers on both sides become involved in a kind of ongoing external administration of those agencies. I can see that that is a real problem, but to say simply that the courts should not be involved is to cede all responsi­ bility to the legislature and to assume that there will be rights without remedies. And if we do that, eventually there will not be rights.

MR. SCALIA: Well, responsibility is not ceded just to the legislatures. After all, in the states as well as in the federal government, it is the primary responsibility of the executive branch to see that the laws are faithfully executed. The argument in most of these cases is not about whether there is a right, but about whether, in fact, the right has been adequately observed. And the courts are increas-

6 ingly willing to set themselves up as the judges of that fact. That is one source of the difficulty. A second source is simply that we speak very facilely of rights. Where do rights exist, and where do they not exist? That is another judgment that the courts have been increas­ ingly willing to arrogate to themselves. In the abortion situa­ tion, forexample, what right exists-the right of the woman who wants an abortion to have one, or the right of the unborn child not to be aborted? In the past that was consid­ ered to be a societal decision that would be made through the democratic process. But now the courts have shown themselves willing to make that decision forus. That is the major objection most people have with the direction the courts are now taking, and it is the major reason why some people speak of an imperial judiciary.

MR. DALY: Mr. Silberman has written that Congress is often charged with responding to social problems by throwing money at them in the form of new federal grant programs. But he says that charge is true only half the time-the other half Congress throws the problem to the legal process. That implies a differentiation between the courts and the legal process. And if we are going to talk about the imperial judiciary, I wonder if we should not also talk about the imperial legal process.

MR. SILBERMAN: I expressed my op1mon in those terms because I see the judicial-regulatory process as a single en­ tity, one which steals political authority and power fromthe representative institutions in a democracy. It is clear that democratic processes cannot exist with­ out the recognition of certain fundamental rights. A democ­ racy must protect the right of dissent. That is what democ­ racy is all about-a system that legitimates dissent. But when we begin to debase this notion of rights, when it becomes a

7 tag word foreverybody's claim, then it becomes simply a way of transferring particular controversies from the legisla­ tures to the legal process. When an individual says he has a right, it means that he has a superior moral claim against the majority. And in a democratic process, we have to worry about that, because it is a phenomenon that can grow and grow. Indeed, some of us believe it is growing to the point where it is robbing from the political process as well as from the private process.

MR. CHAYES: It is important to make a distinction between courts operating under the Constitution and courts operat­ ing under statutes. In Mr. Silberman's view, it may well seem unwise forCongress to give authority to courts to work out the details of a general policy embodied in a statute, but at least he cannot say that it is undemocratic. It is Congress that has decided the courts are supposed to do this. In Title VII antidiscrimination cases, for example, Congress has asked the courts to work out the meaning of the general legislative mandate. Now, that is not something that is confined to this country.

MR. SILBERMAN: It would not be the firsttime in history that a democratic process or a democratic government was in­ volved in its own atrophy or even destruction. The truth of the matter is that Congress delegates more and more au­ thority to the judiciary and to the regulatory agencies, in combination, because it has been increasingly intimidated by the judiciary.

MR. CttAYEs: But the phenomenon of delegated legislation is not unique to this country. We find it in every western democracy.

MR. SILBERMAN: Yes, but this is the only industrial democ-

8 racy with a tripartite structure. The fact that there is an absolute division between the executive, legislative, and ju­ dicial branches is very important, because the founders of our democracy intended to make the accretion of govern­ mental power difficult. Yet, by virtue of this enormous growth in the legal and judiciary processes, a certain seg­ ment of our society has sought to circumvent the limitations of the Constitution and, therefore, to expand governmental power enormously.

MR. GLASSER: When you talk in generalities, Mr. Silberman, there is little with which I disagree. The problem is that this issue is not illuminated by talking in generalities. You said that the concept of rights is being debased because everybody who has a claim of any kind calls it a right, and that the courts are reaching out and becoming accomplices in that process. Now, a good deal of that exists; I see it every day in my office. Ninety-five out of every hundred people who come to the Civil Liberties Union because they think a right is being violated become very angry when we tell them it is not a constitutional right.

MR. SILBERMAN: But you tell them to come back next week, because by then it might well be. [Laughter.]

MR. GLASSER: Of course, why wait until the last minute? [Laughter.] Seriously, the real problem is that, if the word "right" has any legal meaning in our system, it frequently denotes something that must be immune frombeing overridden by the majority. That is my day-to-day definition of a right.

MR. SILBERMAN: I think we would all buy that.

MR. GLASSER: So we are not really in general disagreement.

9 Each of us can state this in general terms which the others will find hard to disagree with. But I suspect that we will disagree about the definition of particular rights. That is what I meant when I said that this procedural argument about the overreaching of the courts was, at bottom, a dis­ agreement about the merits of particular cases.

MR. SCALIA: There are two things I would point out. The courts' expansion stems, in part, from their function of deciding what are constitutional rights. Much of their ac­ tivity is in that area, and I think they have gone too far. They have foundrights where society never believed they existed. There is an entirely separate area of court activity, though, that provides even greater scope for judicial law­ making. It is not the creation of rights from the Constitu­ tion, but rather the interpretation of legislation that has been enacted by Congress. I could not disagree more with Professor Chayes's notion that legislation must be demo­ cratic if it has been enacted by a democratic Congress. It can be undemocratic if it is so vague that unelected judges are left to determine its real content. When Congress decides to pass a law saying there shall be no sex discrimination in any university programs, why is the law not more specific? The simple answer is that the members of Congress realize that the democratic process puts too much heat on them. When they pass a law that is no more than a platitude, everyone applauds. Who is in favor of sex discrimination in universities? No one, certainly. When that particular law was passed, the Congress knew that it involved a lot of real political questions which should be decided through the democratic process. What does sex discrimination mean? Does it mean that major universities cannot spend a great deal more money on their football teams than they do on their women's sports pro­ grams? Congress chose not to address such controversial

10 issues. Instead, it kicked the ball over to the courts. That is not democracy.

MR. CHAYEs: Congress can change what it does not like. We had a situation like this last year. Congress said that, no matter what, an endangered species should never be killed. And the Court did exactly what Congress said. It kept a dam from being built in order to save the snail darter. When Congress decided that that was not really what it meant, it changed the law. So Congress is there; the Court does not act all by itself. The political process does not stop when a law is passed and left to the courts to enforce.

MR. SCALIA: But Congress does not want to touch it. They did not want to touch it yesterday, and they will not want to touch it tomorrow.

MR. CHAYES: If the court enjoins the Southern California football team from going on the field because there are no women on it, the Congress will act soon enough, believe me. [Laughter.]

MR. DALY: Our subject-an imperial judiciary-suggests that the courts are reaching out and grabbing. Yet much of what I have heard tonight indicates that all of these matters have been shoved on the court.

MR. SILBERMAN: No, I would disagree with that. I think the court has reached and reached and reached. Unfortunately, the more it reaches, the more Congress gives it. There used to be a doctrine that in a democracy the courts should try to avoid political questions-that is, basic policy issues that are more suitable for a legislature. Re­ cently, however, the courts have become perfectly willing to reach out and take those very controversial questions; the

11 judges can go home and tell their wives and families about the important matters they decided that day. When this happens, there is an inevitable tendency for Congress to abdicate its own responsibilities and assume that the courts will step in. Besides, members of Congress do not want to make the tough decisions because they have to be reelected. Judges do not. So the process affects both insti­ tutions.

MR. GLASSER: Yes, but that's stretching just a little. I think you came closer to the truth when you focused on Congress and said that the statutes it is passing are not specific enough. Congress is enacting laws or failingto enact laws in such a fashion that the adjudication of claims that in­ dividuals make is thrust onto the courts. The problem with describing the judiciary in the same imperial terms that we use to describe the executive and the legislature is that it is an exercise in nominalism. It is kind of a cute trick to use the word "imperial."

MR. SILBERMAN: It was Nathan Glazer who first used the term, and he used it in a Public Interest article, at a time when much of the intelligentsia in this country was focusing, probably falsely, on what it saw to be an imperial presidency. At the very time the presidency was declining in power, Glazer came along and reminded everyone that another branch of government was arrogating to itself the power to defineand create rights, and to administer whole segments of our society.

MR. GLASSER: But that happened when Glazer began to change his position on the merits. The power of the judi­ ciary to assume an empire unto itself is intrinsically limited because, unlike the legislature and the executive, it cannot initiate action.

12 If the Congress is, by its actions or inactions, contribut­ ing to this, then that becomes part of the complex problem that Professor Chayes alluded to earlier. While a demo­ cratically controlled institution can cede its democratically controlled power away, that does not mean that it is undem­ ocratic. And if Congress passes a general statute that re­ quires more specificity, then the problem is with Congress, and not with the courts. I have been around legislatures enough to know that they get themselves off the hook all the time by passing laws and letting the courts worry about it. That's not good, but once they pass the statute, what is somebody with a claim under that statute supposed to do? Let us say, for instance, that they pass a statute prohibiting sex discrimination at universities. Then a woman wants to try out forthe badmin­ ton team, and the university administrator says that she cannot do that, because the university does not have mixed sports. The woman cites the statute, but the administrator says that the statute does not apply. Now, where is she supposed to go if not to the courts?

MR. SCALIA: She has to go to the courts. I have no quarrel with that. But I am not particularly concerned about whether the courts put the crown on their own head in Napoleonic fashion or whether somebody else conferred it upon them. My only point is that the crown is there, partly put there by the legislature, partly arrogated by the court itself. And let us not forget to blame the executive branch. For many years, the executive has been going to Capitol Hill and seeking broad statutes, thinking that vague statutes gave it more discretion. Let us regulate something "in the public interest," the executive said, or ban products that are "unreasonably hazardous"-all sorts of vague things. The executive has found, however, that the courts are suddenly beginning to pretend that these absolutely mean-

13 ingless phrases have meaning. And so, to its horror, it sees the discretion being sucked right over into the courts. That is what has been happening, and we can blame everybody­ the Congress, the executive, and the courts. I do not care whom we blame, I just do not want the crown there.

MR. CHAYES: As I said in the beginning, this kind of situation is the disease and afflictionof contemporary civilization; it is something that takes place in all modern societies. Ours happens to be an improvement over the others because we do not have just a legislature and an executive. In countries that operate through the cabinet system, the legislature is controlled by the executive, and those two branches run the whole show. But we have a tripartite system, which sets up a whole series of internal checks and interactions. And, although the delegitimization of Congress and the executive over the past few years has apparently brought about an expansion of judicial authority, it does not mean that Congress is weak or powerless or that the executive is weak or powerless. There is strong interaction among all three branches and the electorate as well. The courts have never been able to sustain a policy against the significant resistance or nonacquiescence of the public.

MR. SILBERMAN: That is not true. Debate about the govern­ ment's busing policy has been going on foryears. Many polls have been taken on it. If someone came down from Mars to the United States and saw that the vast majorityof American people, black and white, opposed forced busing, he would wonder how it could be justified in a democratic society.

MR. GLASSER: The assertion that most people oppose busing is nonsense. Nobody opposes busing in this country except people who oppose it forthe purpose of integration.

14 MR. SILBERMAN: I saidforced busing.

MR. GLASSER: But they do not object to being on a bus; they object to where the bus is going. You can disagree, but that is not the same thing as saying they oppose busing.

MR. SCALIA: We could say the same thing about a person who is kidnapped. [Laughter.] He does not mind being in the car. He just cares about where the car is going. [Laughter.]

MR. GLASSER: Well, you might say that, but I would not. Children are bused to schools miles away from where they live all the time, for reasons other than integration, and nobody ever objects. What is happening now is something I predicted at the beginning. We disagree about the issues, not the proce­ dures.

MR. SILBERMAN: No, the important point here is not why people are upset; it is the fact that they disagree. We live in a society in which majority rule, with limited exceptions, is supposed to prevail. Yet, here is a major question on which all our political institutions and our people come out one way, and our judicial system comes out the other way, in absolute and continual defiance.

MR. GLASSER: But that's proper if it is protecting the right of the individual.

MR. DALY: Let us get at this matter of majority opinion. We have had several elections since busing became a major issue. Can you think of any legislators in either house who have not been returned to office because their position on busing was that it was necessary and right?

15 MR. SILBERMAN: As a matter of fact, probably not, because there are very few legislators whose positions are not con­ sistent with the way I expressed it.

MR. CHAVES: But the Congress has never passed a bill limit­ ing busing.

MR. SILBERMAN: In part because the argument has been made that it would be unconstitutional to do so.

MR. SCALIA: And that is the major defense that the members of Congress will assert if they are asked why they have not passed a statute. They have been persuaded that, on con­ stitutional grounds, the courts cannot be interfered with.

MR. SILBERMAN: Yes, there is a certain mystique about the judiciary in this country, and it is a false mystique. It may have been justifiable some thirty or forty years ago when there was a doctrine of judicial self-restraint. After all, in our law schools, in our legal periodicals, and in judicial decisions themselves, there was a great deal of attention thirty years ago to the old Frankfurterian view.

MR. CHAVES: Yes, I clerked forJustice Frankfurter, and he sure was an advocate of judicial self-restraint when he was in the minority. [Laughter.] And, as you say, most advocates of judicial self-restraint have been either academicians or the people who were losing. I think Mr. Glasser is correct on that.

MR. SILBERMAN: I do not agree.

MR. CHAVES: It is quite interesting that, in the 1920s and 1930s, the liberals were all for judicial self-restraint and the conservatives were all for judicial activism because the Su-

16 preme Court was predominantly conservative. Now the lib­ erals do not care as much about judicial self-restraint, and that is all the conservatives are talking about. I could say the same thing about the administrative process. When I was in law school, the American Bar Association and all of the pillars of the bar wanted judicial review of administrative activity. Why? Because the judges were restraining the ad­ ministration. The New Dealers, on the other hand, wanted the administrative agencies to have freedom of action. Mr. Classer's point deserves attention. The concern here is far more with whose ox is gored than with broad questions of political philosophy.

MR. SILBERMAN: So you have said, but indeed, if we take your argument to its logical extreme, there will be no restraint whatever on the judiciary. We might as well just give up and allow it to make all of the fundamental policy decisions in our society. You can not possibly want that.

MR. CHAYEs: No-

MR. SCALIA: It is certainly true that the portion of society that is being harmed most by the activism is likely to squeal the loudest. But I do not see why that justifies the courts' activism. They were wrong when they did it in the 1920s, and they are wrong when they do it today.

MR. CHAYES: It seems to me that, historically at least, that is not true. The court has been active since John Marshall decided Marbury versus Madison or upheld the Bank of the United States. The court has been a part of the political process from the beginning, and was designed to be so. That is what Article Ill of the Constitution means. As Larry Silberman said, ours is the only country that has a judiciary as part of the government.

17 MR. SILBERMAN: Yes, but we must realize the value of restraints. The courts will be less active if they worry about their role, and if law professors teach them to worry about it. Granted, there will never be a clear line between what the judiciary can do and what it cannot do, but law students should he taught that if the legal process or the judiciary process expands too much, it could pose a threat to democ­ racy. The important thing is that we have lost the judicial humility; we have lost the sense of self-restraint.

MR. CttAYES: You have not been talking to the judges I have been talking to about this question of arrogation.

MR. SILBERMAN: Humble judges? l\1R. CttAYES: Yes, humble judges. Did you talk to Judge Laskey in New York or Frank Johnson in Alabama? Those people have not reached out and grabbed power. They are people who have not only seen gray-area violations of rights; they also have walked into mental institutions and prisons and seen people being tortured, having hoses forceddown their throats, and things like that. Is a judge to sit idly by and disregard such things? As I look around at the audience here, I do not see any prisoners. I see a couple of women and very few blacks. Mainly, I see a bunch of middle-class lawyers like myself. The blacks, the poor, the women, the prisoners, and mental patients can get into the courts, even if they cannot get in here. [Applause.]

MR. SCALIA: Of course we are against forcing hoses down people's throats, and there the judiciary should step in forcefully. But I did not realize that that was what we were talking about today. I thought we were talking about more frilly issues, such as the judiciary's prescription of so many air conditioners per room in mental institutions, or their

18 prescriptions against school dress codes. Of the two judges you mentioned, I take it neither one is running a school district at present.

MR. SILBERMAN: As a matter of fact, one of them is-Frank Johnson. Some say he is running the entire state of Ala­ bama.

MR. SILBERMAN: There is an old adage that seems relevant here: "If you hang out your shingle and your service is free, you'll get all the business." That is what the judiciary has done. For many years, there were doctrines in this country that limited judicial relief. An individual had to have stand­ ing, which is a legal word that means he had to be hurt beforehe could go into court. He could not go into court just because he did not like what the government was doing in general, or did not like where his tax money was going. For many years, that doctrine prevented the judiciary from being dragged into all sorts of policy questions. It has eroded only in our lifetime.

MR. GLASSER: I said earlier that I thought we had to talk about specific issues and not about generalities. If we begin to talk about specific issues, I think we will find more areas of agreement than an exchange of generalities will allow. For example, Mr. Scalia said we are talking, not about forcing hoses down people's throats, but about the frills. Yet, if we went through the specifics of actual court orders involving mental hospitals, I dare say that he would agree with 90 percent of them when he discovered that some things, which seemed at first blush to be frills, actually were not. In the early 1970s, at Willowbrook, a school in New York City for the mentally retarded, there were kids with maggots in their flesh, underneath casts that had not been

19 attended for months. All of the kids admitted to that school contracted hepatitis within six months. Daily and weekly, preventable deaths occurred as kids choked because there was not a resuscitator on each floor of that hospital. A judge in New Yorkissued an eighty-page order-not because he became persuaded by lawyers' slick arguments in court, but because he went to Willowbrook and smelled the place. One of the details was that there had to be a resus­ citator on every floor. His decision was attacked in news­ papers by some people for, among other things, including frills and details, and the resuscitators were one item that they mentioned. People did not understand that having a resuscitator on every floor would prevent the deaths that occur when retarded kids are being force-fed and start to choke because of poor coordination. It is hard to believe that that detailed eighty-page order could come out of a court, or even a legislature. It is the kind of thing one could normallv expect to come fromthe admin­ istration. It should have been issued years or even decades ago, but it was not, and people died. People had maggots in their flesh, and they got hepatitis. After the court order, the lawyers all thought they had won, and there was a big story on the front page of the New York Times. Guess what happene

MR. SILBERMAN: Maybe that suggests it is a great or funda­ mental mistake to-

MR. GLASSER: It does not suggest a mistake. It suggests the problem. I agree that these issues should not be thrust into the courts: the courts have no capacity to deal with them. But the rights that are being violated in some of these

20 institutions are gross beyond belief, and the administrative, executive, and legislative branches, which should be dealing with them in detail, do not. When the courts try to do something about it, their decision is not enforced, so they try to enforce it through contempt remedies, and we end up with the kind of external administration by courts and lawyers that is nonsense. But the problem is not that the courts are arrogating power. The alternative to court involvement is to let those people rot, because the administration will never do anything about it.

MR. SCALIA: But what about court decisions on matters like wearing ties to school?

MR. GLASSER: Why don't you answer the hard one first?

MR. SCALIA: I will. I think you are right that we agree on many more things than the dispute might indicate. We have no quarrel when the right in question is one that the whole society agrees upon-like people's right not to have hoses forced down their throats, or their right to adequate treat­ ment and care. There is no question that the society holds those values high, and I do not object to the courts enforcing those rights. But the courts have enforced other rights, so-called, on which there is no societal agreement, from the abortion cases, at one extreme, to school dress codes and things of that sort. There is no national consensus about those things and there never has been. The courts have no business being there. That is one of the problems; they are calling rights things which we do not all agree on. The second problem is the issue of standing, which Larry Silberman mentioned. Essentially, it means that the person who claims a right has been harmed himself. Since Mr. Glasser gave a case history, let me give a case

21 history that involves a decision by the Interstate Commerce Commission to allow a railroad freight increase of 2.5 per­ cent. That decision was challenged in the courts by a public interest group. The members claimed that they would be hurt since the 2.5 percent freight increase would increase the cost of recyclable goods; thus more beer bottles and other nonrecyclable goods would be found lying about in the national parks, which they used. Can one seriously find an appreciable personal interest at stake there-as opposed to the general interest, shared by the whole society, which can be adequately protected by the democratic political process? It boggles the mind. But the court said they had adequate standing to present their case. John Marshall would have turned over in his grave.

MR. CHAYES: Let us go back to the first point. Mr. Scalia says we can enforcerights when there is a consensus, but that we cannot enforcethese far-out rights. Yet, it is interesting that the first free speech case to come before the U.S. Supreme Court occurred in 1918, a hundred and fifty years after the Constitution was written. The Supreme Court did not en­ force the free speech clause of the Constitution against the Alien and Sedition Act; it did not enforce it against all sorts of things during the nineteenth and early twentieth centuries. The firsttime the free speech right was enforced against a state's laws was in 1931, in Near versus Minnesota.* The courts have always been, and necessarily must be, on the frontierof rights, because the people who are making these claims, who are sensitized to the deprivations, go first to the courts; that is their refuge. We have talked about standing. There again, the Con­ gress, in the Clean Air and Clean Water Acts, has enacted citizen standing. It has said that any citizen, whether hurt or

*283 U.S. 697.

22 not, may sue to enforce these things. Why? Because the Congress is interested in getting the rules enforced. Maybe it does not appropriate enough money for governmental enforcement agencies, but it enlists citizens to enforce the rules.

MR. SCALIA: That is a mistake; Congress should not do that. It amounts to saying that every citizen has a legally enforce­ able right to have his government act justly, fairly, and efficiently. Once the courts confer that kind of right, then every­ body can go into the courts whenever there is anything wrong in any agency activity. If the ICC allows a 2.5 percent freight increase that someone does not like, suddenly it becomes a judicial question, even though the person has not been substantially affected by it. This is precisely what has caused a vast majority of issues to be decided in the courts.

MR. SILBERMAN: We have not focused on the fact that the judges in this country are not elected, for the most part. Indeed, they are insulated fromthe political process. They are chosen fromcertain elite groups; therefore,their power must be carefully scrutinized, more carefully than that of the president and other executives and more carefully than that of the legislators, who must stand for reelection. That is why we have to worry more about an imperial judiciary than we do about an imperial presidency or an imperial Congress. We can throw the rascals out of the executive branch or the Congress; we cannot throw them out of the judiciary.

l\IR. CHAYEs: There are two points to be made about that. First, as faras elite groups are concerned, the socioeconomic make-up of Congress is about the same as that of the courts.

23 There are lawyers, businessmen, and professionals m Congress-most!\ middle-income folk.

MR. SCALIA: I do not think the businessman's mentality is necessarily the same as that of a lawyer. I know a lot of businessmen who do not understand lawyers at all-and vice versa.

MR. CHAYES: We were discussing elite groups, and I am pointing out that members of Congress and the judiciary come from the same socioeconomic groups. The same rela­ tive disproportion of women and minority groups exists in Congress and in the courts. The second point is that, although we do not elect judges, it is not true that the courts are unresponsive to fundamental changes in public opinion and in the adminis­ tration. Every administration in our lifetimes has decisively affected the Supreme Court. Roosevelt mav have had to wait until his second term, but every administration has made a decisive political change in the Court, and the Court has shifted in response to that change. Our democracy is not a referendum type of democracy. It is not run by polls. Congressmen wait two years to be held to account, presidents four years, senators six years; some­ times they are not held to account at all because they are in safe districts. Judges operate on a somewhat longer time horizon, one that permits values other than the immediate political pressures that affect congressmen or senators.

MR. SILBERMAN: You mean that they have a different con­ stituency, usually law school professors and editorial writers. [Laughter.]

MR. GLASSER: Minorities are their constituency.

24 MR. DALY: Gentlemen, there is an issue you have not dis­ cussed, perhaps because you see it purely as a matter of mechanics. Congress has authorized the appointment of more than a hundred extra judges, which represents an increase of about 30 percent. Do you see this as having any impact upon the philosophical issues that we have discussed here?

MR. SCALIA: Yes, I do.

MR. SILBERMAN: I regard it as appalling. [Laughter.]

MR. DALY: Would you explain that?

MR. SCALIA: I think it is likely to make the federal judiciary even less responsive to the political influences that Mr. Chayes mentioned. The volume of litigation at the federal level has become so extensive that the proportion of signifi­ cant cases which the Supreme Court can feasibly review has gone down enormously. The appointment of many more lower federal judges will enable the volume of litigation to continue its expansion and will further reduce the propor­ tion of cases actually reviewed. I think the courts of appeals and the district courts have more discretion and much greater freedom of action than they used to, and the political responsiveness of those en­ tities is even less, if one can believe it, than the political responsiveness of the Supreme Court. A president like Mr. Nixon can change the Warren Court to the Burger Court, which has not made much dif­ ference, but he cannot change the courts of appeals and the district courts. The effective nonreviewability of the lower courts is a significant development in the American legal system, and it causes me to fear, more than ever, the devel­ opment of too much power within the judicial branch.

25 MR. GLASSER: I would like to respond to a point Mr. Scalia made earlier. He said that the kind of institutional mis­ treatment I was discussing was an appropriate area for judicial remedy and judicial involvement, but that he did not feel the same way about, for instance, dress codes in high school. It has to be understood that virtually all the cases which have involved the courts in the day-to-day administra­ tion of institutions are the kinds of cases that I was describ­ ing. The institutions being run by the courts are prisons, mental hospitals, and children's institutions. If Mr. Scalia concedes that this is an appropriate area, he has conceded most of the problem, because, on matters like school dress codes, the courts have not reached out. The United States Supreme Court has, for ten years, steadfastly refused to review even one of those cases. And the lower courts have taken widely varying stands on those issues. It differs from circuit to circuit and from district to district.

MR. SCALIA: Well, that's comforting.

MR. GLASSER: It ought to be. My point is that, if you are resting your whole cosmic argument on dress codes, you do not have much of an argument left. [Laughter.]

MR. CHAYES: To get back to the appointment of these extra hundred and fiftyjudges, I do not think it will make much difference in the trends that we have been talking about. I think that, as our government expands, our courts will ex­ pand with it. I do think there is something to Mr. Scalia's point about case load or docket congestion. The problem is to decide what kinds of cases we want the courts to deal with. The judicial process is an expensive, time-consuming, very deliberative process. It is not a very good process for trying tort cases--cases about who hit whom at the street

26 corner-but it is a good process for trying out cases of right where large social issues are involved and have to be ac­ commodated. I would agree with Mr. Scalia at least on this: If we could focus the case load on these kinds of cases, we would have more deliberative, thoughtful decision making, and per­ haps a more significant degree of supervision at the Su­ preme Court level. But I do not think that the circuits are going off half-cocked.

MR. SILBERMAN: It seems to me that you want the judiciary to focus on broad questions of public policy, rather than dis­ putes between private parties or between a private party and the government. You really want it to be a super legislature.

MR. CHAVES: Well, the current opinion on both the conser­ vative and liberal sides is that relatively well-defined dis­ putes between private parties are not well handled in the courts. There are better ways of handling those. But a claim of constitutional or statutory right may be a different matter.

R. DALY: We have created a very broad base on M which to receive questions from our friends and guests in the audience, and it is time for the question-and-answer session. May we have the first ques­ tion, please?

NORBERT Y. ZUCKER, congressional fellow with Rep. James Florio (D-N.J.): I have a specific issue that Mr. Glasser, who hails from New York City, may want to respond to. The Environmental Protection Agency required the

27 city of New York, as well as other cities, to develop a trans­ portation plan. The city did so, but the court ruled that the plan was inadequate and required the city transportation planners to consider levying bridge tolls. My question is this: Should the court get into the busi­ ness of detailed transportation planning in the city of New York? How is the public served by this?

MR. GLASSER: I am not sure I can answer that. My reflexis to think that it is not the kind of thing that ought to come from a court, but it is hard to answer questions about particular cases. If I read the court's opinion, I might be less sure that it did not belong there. I cannot evaluate the propriety of a court order when I do not know any more about it than what you just told me. If you could explain what issue was framedand what the basis forthat order was, perhaps I could answer it more explicitly.

MR. CHAYES: I think Mr. Glasser is right that the case has probably not been adequately described. The court did not tell New York that it had to charge higher bridge tolls. It said that a plan which did not consider the alternative of higher bridge tolls was not an adequate plan, since the National Environmental Policy Act requires an environmental impact statement that takes account of all possible solutions to the problem. In other words, the court did not change the New York plan; it said New York City had not considered the alterna­ tives that were available to it, as the act requires. It is not a case of the court's planning New York's transportation. The court was merely telling the city to act in accordance with the legislation Congress had passed.

MR. SCALIA: Mr. Zucker is right. It is a case that should not be in the courts. It is there because Congress put it there. I

28 am not saying that the judge in question is wrong for having come to that decision; he may well be right. The problem is that the rules of standing have been altered. Who is the plaintiff in the case? Under the old rules of standing, it would have had to be someone who was personally injured by whatever the agency had done. In the case in question, there was no personal injury to an individual, except for that intangible, immeasurable in­ jury that comes from having a less adequate environment if the agency makes the wrong decision.

MR. CttAYES: I would argue that anybody who lives in New York is injured by New York's traffic plan. [Laughter.]

MR. SCALIA: I think you would, and I think the modern courts would, but that is precisely the kind of judicial inter­ vention which I think is incorrect. It amounts to making the courts responsible for the efficientand proper functioningof our government. That is not their primary purpose. Their primary purpose is to remedy personal wrongs that are inflictedby one individual upon another, or by the government upon an individual. We have converted the courts into instruments for as­ suring proper functioning of the government. That is not what they should be.

MR. SILBERMAN: The environmental impact statement was a procedural requirement, a requirement that a government agency consider a number of factors. A tremendous amount of litigation has been spawned by this statute, and a number of courts-most notably the court of appeals in the District of Columbia-have seen it as an invitation to make value judgments. By saying that sufficient consideration has not been given to a particular factor, the judge is clearly imply­ ing that that factor should be dominant.

29 That has happened again and again when Congress has sought to pass procedural statutes. They have been turned, by an imperial judiciary, into an opportunity to render substantivejudgments.

MR. CttAYES: Well, we could have the whole debate again, so maybe we should go to the next question.

MR. DALY: Next question, please?

DouGLAS LANFORD, executive director, American Academy of Judicial Education: Gentlemen, your discussion has fo­ cused primarily on the federal bench. Would your respec­ tive positions and attitudes differ at all if you were talking about the statejudiciary?

MR. GLASSER: Mine wouldn't, since I am focusing relatively narrowly on the question of rights and the role of the judi­ ciary in enforcingthe rights of individuals against the major­ ity will. I would take that position with respect to the state judiciary as well as the federaljudiciary.

MR. SCALIA: No, I think that the problem is about the same at the state level as it is at the federal. Let me mention one instance of state intervention. The federal courts have not required that states equalize the subsidization of public schools from district to district, but some state supreme courts have done so: California, New Jersey, New York, and Connecticut, for example.

MR. CHA YES: It is interesting that the performance of the courts in these highly urbanized and industrialized states looks not unlike that of the federal courts. It is also true that, as tribunals for adjudicatingprivate rights, the state courts do not functionin the traditional manner either. Mostof the

30 hundreds of thousands, and even millions, of cases that are filed in the state courts yearly are divorce cases, most of which are settled by consent; consumer collection and landlord-tenant cases, many of which are settled by default; and criminal cases, 90 percent of which are settled on plea bargains. So the vast bulk of those filings are disposed of without formal adjudication. I think that is also a response to the institutional problems of courts in a contemporary society.

CHRIS WARNER, legislative assistant, office of Senator William Roth (R-Del.): In this country, we have had an explosion of new laws and new statutory rights, and the federal courts have given the equal protection clause of the Fourteenth Amendment a very broad interpretation. Given these facts, what are the implications for the American federalist system? That is, what are the implications for the state and local governments when the federal courts become involved in judicial activism and in the enforcementof these new rights?

MR. SCALIA: The imperial judiciary does have some implica­ tions for federalism. It obviously provides a greater oppor­ tunity for incursions upon the states. Many federal court decisions restrict state administrative action; some invali­ date state legislative action; and some even invalidate an entire democratic process of the state, to wit, a referendum in California. Thus, the imperial judiciary gives the federal government considerably more influenceover the degree of democracy that can exist within the states, as well as within the federal government.

MR. SILBERMAN: I would add that, not only does the expan­ sion of the judiciary deprive the states of authority and sustenance, but, even more important, it allows the federal

31 government as a whole to gain greater power compared with the American people. I believe that our Constitution was deliberately designed to make the accretion of govern­ mental power difficult. Legislation has to pass two houses and an executive unless there is a two-thirds majority in favor of it. If one looks at it in that context, one sees that the expansion of the judiciary circumvents that process and allows the government to grow even more quickly than it would otherwise. I do not think it is quite the way Professor Cha yes put it. The judiciary does not grow merely because, in modern industrial society, governments grow. If we look at the American experience particularly, we must realize that the growth of the legal process in this country has been a way to circumvent the limitations on government power that the Constitution intended.

MR. GLASSER: Although the courts are undeniably more involved in running things day to day than they were before, I persist in asserting that the courts' power is entirely de­ rived from the power of the legislature and the executive. When the courts get into the running of reformatories, foster care, mental hospitals, prisons, welfare systems, and so forth, they do so, in large part, because of claims arising out of those systems. Two hundred years ago we did not have social service systems. It is only relatively recently that politicians, mostly liberals, decided to do some good for folks. One of the ways to do this was for legislatures and executive branches to provide a whole range of social ser­ vices at the state level-welfare, hospitals, mental hospitals, and the care of homeless children. These institutionalized services arose in the late nineteenth century, and forentirely benevolent reasons. But the agencies that were set up in­ truded into people's lives, much as conservatives had always argued that they would.

32 When the claims ansmg out of the mistreatment in those institutions found their way into courts, the courts were forced to rule on them. That the courts therefore extended their own power was entirely derived from the fact that the executive and legislative branches intruded on people's lives in the firstinstance, in the course of providing services to them. From this entirely different perspective, the problem is not so much one of an imperial judiciary but of inroads into people's lives deriving from benevolently intended social services that the state has set up over the last hundred years. That is a far more complex problem than the one we have been discussing today, but I think it is the important prob­ lem to discuss.

MR. SCALIA: That is true, but it applies just to that portion of the judicial intrusion that relates to the courts' acting to preserve constitutional rights. It does not apply to the New York bridge case, where the courts were invited in by the legislature, and invited in wrongfully.

MR. CHAYES: This is not an arrogation, but a part of the federal governing process. Maybe I have lived through a different fifty years from everybody else around here, but I would have said that in the last ten years there has been a revival of the importance and significance of state govern­ ment in our system. In the 1930s and 1940s the Congress exercised its constitutional powers over commerce and the general welfareaggressively, and we had a fairly significant displacement of state responsibility over a wide range of activities. If anything, the last decade has seen quite a re­ turn of power to states and localities, largely as a legislative matter. Revenue sharing, for example, has given funds to state and local governments to spend, in effect, the way they want

33 rather than the way Congress wants. Much of the environ­ mental legislation requires the states or regions to work up their own plans, just as New York City had to develop a transportation plan. So, the planning function is there. Right now, it seems to be agreed that nobody is going to put a nuclear waste repository in any state that does not want it, though it may very well be at the expense of important national goals. California has passed legislation about nu­ clear energy whkh imposes environmental and energy con­ sequences on other parts of the country, but we say that is California's right. So, I would say that, in general, there has been an accretion of power by the states in the past ten or fifteen years. They do not have as much power as they did in 1800, but there has been a significant shift in the balance. And I think the judiciary is a blip on that basic shift. It does not really affect it very much at all.

DAVID LICHTENSTEIN, general counsel, Accuracy in Media: If my memory serves me correctly, a very distinguished professor at Harvard Law School, who subsequently became a justice of the Supreme Court, said that the beginning of wisdom about constitutional law is that the U.S. Supreme Court makes political decisions. Now, the term "political" is rather ambiguous. As a matter of fact,several speakers have used the phrase "policy decisions." I would like to ask Mr. Scalia and Mr. Silberman if they would define where they would draw the line be­ tween a policy decision and a legitimate area within which a Supreme Court in our constitutional system may operate. Is it not inevitable, as Professor Chayes suggests, in a complex industrial society, with the rights necessarily ad­ judicated by the federal courts, that some of the minutiae of control which the federal courts have undertaken is almost

34 an inevitable consequence of the political decision making we have allowed within our constitutional system? Two illustrations will suffice. Once the U.S. Supreme Court decided the desegregation case, was it not almost inevitable that cross-busing and other complexities would flowfrom that initial decision? And isn't the fantastic array of cases projected into the federal court system since the decision of "one man, one vote" also an inevitable conse­ quence of having given the Supreme Court the right to make a political decision?

MR. SCALIA: That is an awfullybig question. Needless to say, there is plenty of room for the Supreme Court to make important social decisions, if that is what you mean by "political" decisions. Where do I draw the line? In the area of constitutional rights, I draw the line at the point where the Court plucks out of the air a principle of action that is not now considered necessary by a majority of the people in the country, nor was ever considered necessary at any time in our history. An example would be the Court's decision on capital punish­ ment. There is simply no historical justification forthat, nor could the Court claim to be expressing a consensus of modern society. It is just not true. The same could be said about the abortion decision. It is very hard to tell you where the line between a proper and an improper decision should be drawn. It would fall short of making fundamental, social de­ terminations that ought to be made through the democratic process, but that the society has not yet made. I think the Court has done that in a number of recent cases. In the busing cases, which you mentioned, there was no need for the courts to say that the inevitable remedy for unlawful segregation is busing. Many other remedies might have been applied. It was not necessary for the courts to step in

35 and say what must be done, especially in the teeth of an apparent societal determination that the costs are too high in terms of other values of the society.

MR. GLASSER: The problem with continuing to refer to the consensus of society is that, in the area of rights, the Court is charged with making decisions precisely on behalf of minorities and against the consensus. That is usually why the minorities are making claims in the first place. If it had been left to the consensus in 1954, the Court would have been disabled from ruling on the school desegregation case. On virtually every major right, especially every major breakthrough on a right, the Court is always at the edge of the frontier, always acting as a limit on majority rule. In fact, to use a well-worn phrase, "the tyranny of the majority" is what the Bill of Rights is supposed to deal with. The Bill of Rights serves as a hedge against that tyranny, and the courts are charged with enforcing it.

MR. SCALIA: But I am not talking about just the contempo­ rary consensus. I am not saying the Court always has to go along with the consensus of the day. The Court may find that the traditional consensus of the society is against the current consensus. If that is the case, then the Court over­ rides the present beliefs of society on the basis of its histori­ cal beliefs. I can understand that. But when neither history nor current social perception demands that something be called unlawful, I cannot un­ derstand how the Court can find it to be so.

MR. GLASSER: Both were against school desegregation, though, in 1954. Do you think the Court made the wrong decision?

MR. SCALIA: I do not believe that is true. Most of the country

36 did not consider separate black schools proper in 1954. In any event, the results of that decision have been very good.

MR. SILBERMAN: Let me respond to the question, which I think is a very good one and a very tough one. It is by no means easy to distinguish political questions from other kinds of decisions which judges ought to make. An article that approached the question most satisfactorily forme was Herbert Wechsler's "Toward Neutral Principles of Con­ stitutional Law."* Several of our panelists seem to have assumed that the judiciary will always be involved in political decisions, but I do not believe that. I would concede that certain political issues have always slipped into the judicial process and al­ ways will. It is very hard to excise them. But in a democracy where judges are appointed and have enormous potential power, it is crucial that they constantly struggle with self­ limiting doctrine and seek a way to eschew political or policy issues. In law school, we were taught that a policy issue is one in which there are a number of choices that do not follow from a given logical process. That definition may be somewhat unsatisfactory, but whatever the doctrine and however judges and law professors refer to it, I think it is indispensa­ ble in a democracy that they constantly struggle with the problem of policy issues. Your second question was: Once the Court settles a big question, like "one man, one vote" or desegregation, isn't it then committed to the administration of the institution, whether it be a school, hospital, or prison? Once the decision is made that a violent use of stomach pumps against the patients is wrong, isn't it then followed by the judgment of how many air conditioners should be on the floor?

*Harmrd Law Rn,iew, vol. 73 ( 1959), p. I.

37 I do not think so. There used to be a doctrine that the courts should try to avoid continuing supervision of a de­ cree. That used to be quite accepted. The courts recognized that it was unseemly for an appointed official with lifetime tenure, or something approaching that, to get involved in the day-to-day administration of a hospitai or a prison. Over the last thirty years, however, judges no longer worry about this doctrine. They get the case and then go around running all these institutions. Everybody is a secret administrator.

MR. CHA YES: I have a fewshort points. First, Herb Wechsler is a distinguished law professor, now director of the Ameri­ can Law Institut�, and I have great respect for him. How­ ever, the neutral principles argument always put me in mind of Anatole France's great remark about the majesticequality of French law which prohibited the rich and poor alike from sleeping under the bridges of Paris. Neutrality depends on what one is neutral about and how that neutral stand is taken. The firststep is to decide what are the opposing views on which one is neutral. The second point concerns deciding or not deciding. For example, to refuseto decide the desegregation cases, or to decide them in accordance with the defendants' position, is not a non-decision. It is a decision, and one that is just as political, in its outcome and consequences, as a decision to go the other way. I don't think it is possible to distinguish the political consequences of the Supreme Court's decisions on that basis. One may think that the Supreme Court can avoid responsibility forthe result by not taking a stand. But I don't think that is so. If the Supreme Court had come out the other way in Brown versus Board of Education, everybody would have assumed that the Court approved segregation of the schools. That would have been an important political fact, whatever the rationale of that decision was.

38 The third point is about the use of decrees, which we have talked about a number of times tonight. Of course, this is not, as people have been assuming, historically unprece­ dented. In the 1890s and early part of the 1900s, about 30 percent of the railroad trackage in the country was being run by federal courts. This was not because courts were very good at running railroads, or because it was thought courts should make railroad policy, but because the people who had been running the railroads had run them for their own benefit and not for the benefit of the shippers or the stock­ holders. And so, they ran them into the ground. As a result, the courts were called in for a while to reorganize them and bring them to the point where they could be turned back to railroad executives who, it was hoped, would then run them in a way that comported with their legal obligations. My final point is that the charge that courts rush in to make detailed decrees does not comport with the facts. Take the desegregation cases, for example. We had more than twelve years of Brown versus Board of Education with never a busing order, never a compulsory desegregation order. All the cases culminated in court orders to the defendant school district to devise a plan to desegregate. After twelve years we had no effective desegregation until finally, in Green,* the Supreme Court said, "Approve a compulsory order." The same is true of these institutional cases. The court does not rush in with a decree. It tells the administrator of the institution to figure out a plan to bring the institution into compliance with decent conditions. But the administra­ tor does not do very much, and six months or a year later people are in the same condition as before. A decree is issued only after a considerable time, with opportunity for voluntary compliance by the defendant.

*Green v. County School Board, 391 U.S. 430 (1968).

39 The courts do not really like to get into administration, and they feel quite uncomfortable about it. Judges do not come home at night and say, "Well, dear, I had a great day down at the old court today. I put two prison administrators in jail forcontempt, and wait until you see me tomorrow." That is not really the way they act.

MR. SCALIA: Let us not exclude that entirely. There are stories of judges who call the press in advance of a decision and say, "Wait until you see the one that's coming out today. You really ought to put somebody on it. It's a 'biggy. '" Judges are no more immune than the rest of us to the blandishments of publicity and power, and it is foolish to think that they are.

MR. GLASSER: Yes, but only someone who has not litigated one of those cases would put forththe general image of the courts taking initiative, reaching out, lusting for the chance to run one of these terrible institutions and try their hand at solving the problems. It is just not what happens. There is tremendous judicial reluctance to get involved, because judges know that down the road are five, eight, or ten years of absolute entrapment in a web from which there is no escape. They want to divest themselves of those cases faster than you can imagine. That is just exactly the opposite of what you are suggesting. Once judges get into a case they learn what is going on in those institutions. They learn about those stomach pumps, and they rule against them. And when the institu­ tion continues to use those stomach pumps, someone comes back and says, "What are you going to do about it?" The process that Professor Chayes describes is typical of every one of these institutional litigation cases. They go on foryears, precisely because the courts are relatively pow­ erless to enforcetheir own decrees. It is only at the tail end of

40 those processes that the decrees start to get as intrusive as you suggest. The alternative to that is no remedy, and the alternative to no remedy is no right.

MR. SCALIA: And because there is a remedy for stomach pumps, must there also be a remedy forschool dress codes?

MR. GLASSER: As I said, if you are basing your entire argu­ ment about an imperial judiciary on dress codes, then you are trivializing the problem.

MR. SCALIA: No, I'm not basing it on dress codes.

MR. GLASSER: If you concede the institutional violations, you are conceding 90 percent of the problem. That is where the judicial intrusion is. But that is precisely where the judicial intrusion is appropriate. And you seem to agree with that.

MR. SCALIA: I have mentioned the striking down of a refer­ endum regarding open-housing laws, the overturning of local funding of schools, the imposition of mandatory busing-a number of instances.

MR. GLASSER: Yes, but what you regard as the judicial out­ reach into the running of institutions takes place in the context of the kind of gross mistreatment that occurs in all these institutions. If you concede those kinds of cases, the problem reduces to such small proportions that it is not worth the kind of time we have been putting into it.

MR. SILBERMAN: I'm prepared to concede a point, although I'm not prepared to concede your conclusion. I'm prepared to concede that often thejudiciary issues a decree and begins the process of extensive regulation of state and private insti-

41 tutions with some feeling of apprehension, trepidation, and a dim recollection that there are supposed to be restraints on such activity. But the judge gets further and further in­ volved. As Nathan Glazer said, he "drives to the root cause of the matter." I would submit again that the basic problem is a judicial arrogance that believes the legal process or the judiciary can resolve fundamental social problems. Though the judge may be reluctant to get further and further into the institution, he cannot stop until he gets to the root cause. It seems to me this goes way beyond the capacity of the judiciary, or, indeed, the tolerance of our society.

MR. GLASSER: I am suggesting that anyone who has been through one of those cases could not recognize your charac­ terization of the way the judges proceed.

MR. DALY: An important and difficult question was asked, and it has used up all the time we have. This concludes another Public Policy Forum presented by the American Enterprise Institute for Public Policy Research. We extend our heartfelt thanks to the distinguished and expert panelists: Messrs. Scalia, Silberman, Glasser, and Chayes, and also to our guests and experts in the audience for their participation.

42 AEI ASSOCIATES PROGRAM

The American Enterprise Institute invites your participa­ tion in the competition of ideas through its AEI Associates Program. This program has two objectives: The first is to broaden the distribution of AEI studies, conferences, forums, and reviews, and thereby to extend public familiarity with the issues. AEI Associates receive regular information on AEI research and programs, and they can order publications and cassettes at a savings. The second objective is to increase the research activity of the American Enterprise Institute and the dissemination of its published materials to policy makers, the academic community, journalists, and others who help shape public attitudes. Yourcontribution, which in most cases is partly tax deductible, will help ensure that decision makers have the benefit of scholarly research on the practical options to be considered before programs are formulated. The issues studied by AEI include: • Defense Policy • Economic Policy • Energy Policy • Foreign Policy • Government Regulation • Health Policy • Legal Policy • Political and Social Processes • Social Security and Retirement Policy • Tax Policy For more information, write to: American Enterprise Institute 1150 Seventeenth Street, N.W. Washington, D.C. 20036 An Imperial Judiciary: Fact or Myth? an edited transcript of an AEI Public Policy Forum, examines the expanding authority of the judiciary in America and its impact on our society and system of government. Though all the panelists acknowledge the need for strong and independent courts, they disagree on what the proper bounds of judicial power ought to be. Some argue that the judiciary has expanded no more than the legislative and executive branches of gov­ ernment. Others contend that an active judiciairy, particu­ larly at the federal level, is essential to maintain individual liberties. Still others argue that a dramatic growth in judicial power has been at the expense of the Congress, the execu­ tive branch, the states, and ultimately the American people. They contend that federal judges are making more and more decisions that are in fact "political" rather than "con­ stitutional" even though they are protected from political pressure and accountability. John Charles Daly, former ABC News chief, serves as moderator for the panel: • Abram Chayes, Felix Frankfurter professor of law at Harvard Law School • Ira Glasser, executive director, American Civil Liber­ ties Union • Antonin Scalia, professor of law at the University of Chicago Law School • Laurence Silberman, senior fellowat AEI and former deputy attorney general of the United States. 83.00

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