The court we elected

Anthony Lewis

July 01, 1991|By Anthony Lewis

Boston -- THE SUPREME Court has an inherently anomalous role in the American polity. We expect it to articulate eternal values: justice, freedom, rights. But we do not want it to be utterly out of touch with the movement of belief in our democracy.

The Framers of the Constitution dealt with the dilemma by giving the justices life tenure but making their appointments political. The president nominates, and the Senate confirms. That way the court is shaped, over time, by our democratic institutions.

The retirement of Justice Thurgood Marshall makes dramatically certain what was already becoming evident: that process has worked its way to produce fundamental change in the court. A new conservative majority is ready to narrow the boundaries of constitutional rights set in the Warren and Burger years.

The change emerged clearly, in the court term just ended, in the area of criminal law. The court focused on criminal cases, and it seemed to have an agenda: to reduce the scope for prisoners' claims that they have been convicted by unconstitutional means.

Most striking were two decisions that drastically cut back the historic right of state prisoners to raise constitutional questions by filing writs of habeas corpus in federal courts. The first, in April, was the case of Warren McCleskey, convicted of murder in Georgia on the testimony of a prisoner in the next cell that McCleskey had spoken of doing the killing.

After his appeals through the Georgia courts were over, the state disclosed that the witness had been put in the next cell to eavesdrop, and been given favored treatment in exchange. The Supreme Court said it was "inexcusable neglect" for McCleskey's lawyer not to raise the point in the Georgia courts -- presumably by foresight -- so he was barred from federal habeas corpus.

(Warren McCleskey has been to the Supreme Court twice; he lost by votes of 5-to-4 and 6-to-3. Enough doubts remain so that in decency he should surely not be executed. It is up to Gov. Zell Miller of Georgia to grant clemency.)

Last week, in a decision further shrinking access to habeas corpus, Justice Sandra Day O'Connor said the court was acting in the interest of "federalism" -- the rights of the states in our federal system.

Of course respect for the states is appropriate. But there is an abstract quality in the court's invocation of it these days. The justices seem a long way from the reality of what goes on in local criminal courts, with their ambitious prosecutors and often hapless defense lawyers.

In cutting down on the rights of defendants, the Supreme Court is reflecting public outrage at the level of crime in this country. People want to "get tough on crime," and conservative presidents appoint justices who are likely to share those feelings.

The same impulse moves legislators to pass bills that look tough on crime, with some ironic results. Last week the Senate voted to make every murder with a gun that crosses state lines a federal crime. So most murders in this country could be prosecuted in the overburdened federal courts: some gesture to federalism!

Apart from the criminal law, the Supreme Court's most notable expansion of state power over the individual this term was last month's decision allowing the federal government to forbid any mention of abortion by doctors at federally financed clinics. In another First Amendment case, on whether and when inaccurate quotations may be libelous, Justice Anthony Kennedy wrote a moderate and careful opinion.

Some of the important cases would have gone the other way if Justice William J. Brennan Jr. had not retired last summer. The retirement of Justice Marshall, who did so much to expound the ideals of equality and justice, will deepen that trend.

Those of us who believe that this country gained stature and confidence from justices Brennan's and Marshall's vision of freedom naturally regret the difference their departure has made and will make. But time and the constitutional system must work their way.

In the long run the Supreme Court tends to reflect presidential politics, and this one has begun to reflect the ideology of Ronald Reagan and George Bush. The most important thing we do in electing a president may be to shape the Supreme Court.

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