To the Editor:
In “Lawyers at the Bar” [August] Joseph W. Bishop, Jr. gives the back of his hand to a statement of mine that the record of the lawyers around Richard Nixon is “appalling” and that there has been “nothing like it” in our history. Mr. Bishop evidently cannot resist expressing scorn, however gratuitous, and that is his privilege. But I do wonder about the facts.
Kleindienst, Mitchell, Connally (lawyers in Mr. Nixon’s Cabinet); Ehrlichman, Colson, Dean (Counsels to the President); Liddy, Hunt, Krogh (White House staff); Kalmbach, DeMarco (personal lawyers), and Agnew.
Does Mr. Bishop really doubt that that record is appalling? Can he point to any comparable episode in our history?
Anthony Lewis
New York Times
New York City
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To the Editor:
Joseph W. Bishop, Jr. complains of “new legal activists,” some of whom are trying to “use the legal system to circumvent the political system and to settle in the courts and the bureaucracies issues which under our form of democracy are supposed to be decided by the people and their elected representatives.” As prime examples Mr. Bishop cites the lawyers who, in the DeFunis case, supported the freedom of the law school of the University of Washington to choose, if it wished, a racially-conscious admissions policy giving black and other minority applicants a degree of preference necessary to increase minority enrollment. Mr. Bishop says that he is not debating the “wisdom or morality” of this policy but that he objects to removing it and other questions such as capital punishment and abortion from the “ordinary political methods of a democracy and settling them in the name of the Constitution.” May I point out—having been named by Mr. Bishop—that in the DeFunis case the shoe is on the other foot?
The amicus curiae brief filed by Harvard University, like others, argued that state educational authorities should have discretion to adopt whichever of many varieties of admissions programs they judged best, including, if they wished, a preference for disadvantaged and theretofore underrepresented minorities. In making such decisions state educational authorities act as the agents of the people. Under our argument the people would be free to make the choice of admissions programs themselves, if they wished, either by a referendum or through their elected representatives. This position plainly leaves the states and their people—and Congress and the American people—maximum freedom in the sphere of education to solve by the ordinary political methods of a democracy, as best they can, the intensely difficult problems of defining and securing for all truly “equal educational opportunities.”
Equally plainly, the holding that the University of Washington denied DeFunis equal protection of the laws—which Mr. Bishop advocates—would deny this discretion to the states and their people, would remove the question from the democratic forum, and would bar the people from ever resolving, whether through educational authorities or by legislation, that the public interest is best served and the most equitable distribution of a scarce resource best achieved by conscious attention to the racial composition of each class entering the university. Thus, it is Mr. Bishop who, in relation to the DeFunis case, is violating his own general admonition.
Mr. Bishop blurs the inconsistency—or inadvertently fell into it—by two errors.
- He gibes that the law school of the university is “run by lawyers,” and thus omits the undeniable truth that they are not only acting pursuant to a responsibility delegated by the legislature but are subject to legislative control and direction. Nor does he note the equally undeniable truth that a decision invalidating the policy adopted by the law school would bar its adoption by the legislature and the people.
- He lumps the “legal activists” who oppose judicial interference in the name of the Constitution in the same class with those ready to argue that the Constitution “commands discrimination on the basis of race, so long as the discrimination favors members of the right races.” His strictures are fairly applicable only to the latter group, but he applies them as well to all who disagree with him upon the DeFunis case.
Mr. Bishop does a service in pointing out that social “reforms” engineered by courts and bureaucracy are imposed without a decision by the people or their representatives. The substantial difficulties in putting together a popular or legislative majority may enable the “legal activists” to carry the day even though the reforms lack popular support. The only alternatives are either to put the obstacles in the path of reform or else to make more refined distinctions than all-out opposition to “legal activism.” In the case of constitutional decisions, of course, an activist ruling may wholly defeat the democratic process. One regrets Mr. Bishop’s obscuring this last principle by attempting to stand it upon its head in order to reach the result he desires in a particular case.
Archibald Cox
Cambridge, England
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To the Editor:
Joseph W. Bishop, Jr.’s article refers critically to the increasing resort of socially-minded lawyers to by-pass the legislative forum in order to achieve “social reform, protection of the oppressed and the environment, and general moral and social uplift.” He cites judicial or administrative resolution of such problems as the retention of capital punishment, preferential university admissions on the basis of race, busing as a means of overcoming segregation, and abortion on demand. (Mr. Bishop might have added the reapportionment cases to this list.)
I share Mr. Bishop’s concern with what appears to be a growing apathy to the legislative process as a means of securing social change. It is doubtful that judges or bureaucrats possess more wisdom than legislators, assuming that such a comparison is at all possible. But Mr. Bishop’s thesis is seriously and unnecessarily weakened by a snide reference to lawyers who go to a government administrator or a court for relief when legislators cannot or will not act. “Their attitude toward the democratic process, in fact, bears an odd resemblance to that of the Nixon lawyers who installed bugs, burglarized the office of Daniel Ellsberg’s psychiatrist, and attempted to audit the tax returns of their enemies. . . .” I am confident that in their legal proceedings to halt capital punishment, institute or increase the use of busing, uphold the privilege of a woman to abort her fetus, or equalize the voting power of citizens, there was no violation of law by any lawyer.
Sidney Schindler
Putnam Valley, New York
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To the Editor:
Thanks are due Joseph W. Bishop, Jr. for his article on the American legal profession. The erosion of our democratic polity by the increasing recourse to the judiciary, the least representative, the least responsive branch of government, and the least equipped to deal with issues of social and economic policy is a phenomenon that has long needed to be examined.
An added word of warning is in order. The activists who lead the current rush to the courts are ignoring a history with which they surely must be familiar. It was not so long ago that the Fourteenth Amendment, now invoked in the causes of liberation and reform, was the main instrument used by the Supreme Court to invalidate measures taken to modernize and humanize our social order—among others, limitations on the hours of work, a minimum wage, a ban on child labor. Rent control, social security, unemployment insurance, statutory support for the right to unionize and bargain collectively escaped the axe by the narrowest margin of a single vote, five to four.
Great acclaim has been accorded the Supreme Court for striking down the rule of “separate, but equal.” Overlooked is the fact that it was the Court itself and not Congress that promulgated this rule to begin with. Responsibility for the discrimination which this rule spawned lies at the door of the Court. In the end, all it did was to rectify its mistake. So it is with the Court’s recent decisions in the area of civil rights for which it has been given such high praise. These decisions can fairly be regarded as atonement for the Court’s nullifying of the broad civil-rights legislation that Congress enacted at the close of the Civil War for the protection of the newly enfranchised.
For almost a quarter-century the equity of an income tax was denied us because the Supreme Court, responsive to the plea of powerful corporate interests, declared such a tax to be unconstitutional. This despite its decision at an earlier time holding such a tax to be valid when the purpose of its enactment was purely fiscal and untainted by the radical concept of taxation in accordance with the ability to pay, as was the case with the later law.
There is no possible doubt that it is legal to refuse to render service when the working conditions are unsatisfactory. Yet the courts were quick to find an unlawful conspiracy when this clear right was exercised by workers in concert, thereby achieving an effectiveness that lone action could not. The “yellow dog” contract derived its force from court decisions, not legislative enactment. To the contrary, early statutes prohibiting this kind of contract were struck down by the Supreme Court as doing violence to freedom of action safeguarded by the Constitution. The present-day lawyer reads with amazement bordering on disbelief the sweeping injunctions issued against unions, not infrequently without notice, banning activities which later judges discovered to be constitutionally protected.
In the course of time there will be new judges. We cannot now know who they will be or what views they will hold on the social and economic problems of the day. But if the course of current decisions continues it will have placed in their hands a power of governance superior and far more controlling than that held by representative, elected officials. . . .
Herman A. Gray
Pine Plains, New York
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Joseph W. Bishop, Jr. writes:
I must preface my comments on the letters about my article by saying that I am at present at the University of Cambridge (where, incidentally, Archibald Cox is also) and so do not have my notes.
Whether I was wrong to be less “appalled” than Anthony Lewis is largely a question of semantics. Obviously, I did not condone or approve of the conduct of the lawyers he mentions (most of whom I mentioned too), but I was not “overcome with consternation or horror,” which is Webster’s definition of “appall.” I suppose I am simply of a more cynical cast of mind than Mr. Lewis, which may well be a difference in his favor. As for “comparable episode[s] in our history,” at least three come to mind immediately. The Crédit Mobilier scandal of 1865-69, thoroughly investigated by Congress in 1872-73, involved Schuyler Colfax (later Vice President under Grant), James A. Garfield (later President), and several other members of Congress. Garfield was a lawyer, as were one or two of the other Congressmen. (Garfield ultimately escaped censure because after a couple of years of hesitation, he yielded to the urging of his friend, Jeremiah Black, and returned the Credit Mobilier stock which had been given him as a bribe.) The Erie Railroad scandal of a century ago, brilliantly chronicled by Charles Francis Adams and his brother Henry in Chapters of Erie, involved the corruption of at least four Justices of the New York Supreme Court, including Albert Cardozo, the father of Benjamin Nathan. The scandals of the Harding administration led to the jailing of the Secretary of the Interior, Albert Fall, and the Alien Property Custodian, Thomas Miller—the latter, I believe, a lawyer, though I am not certain. The Attorney General, Harry Daugherty, a lawyer of course, took the Fifth Amendment and managed to hang the jury. All of these episodes—and the list is very far from comprehensive—seem to me quite comparable to Watergate.
Archibald Cox’s thoughtful letter does not, I think, state my position quite correctly. I recognize, of course, that judicial interpretation and enforcement of the Constitution is part of our democratic process. The purpose of the Bill of Rights is to place limits on the majority’s freedom to oppress the minority, and sometimes on the ability of a powerful, although unelected, minority to oppress the majority. I made no “general admonition” that the courts should never interfere with the “discretion [of] the states and their people.” I have no quarrel at all with such cases as Brown v. Board of Education, Gideon v. Wainwright, and Escobedo v. Illinois. In the very unlikely event that the people of Washington or its legislature had really ordained, by referendum or statute, discrimination on the basis of race, I would have thought it proper for the Court to have invoked the Fourteenth Amendment to strike down the enactment. But any such referendum or legislation or other decision by the people of Washington or their elected representatives to prefer certain minorities by establishing racial quotas, while theoretically possible, is practically unimaginable. To say that the faculty of the University of Washington Law School acted as “the agents of the people” is very rarefied theory indeed. That law school, like most law schools, including mine and Professor Cox’s, is managed in most important respects by its faculty, who are lawyers. (My statement that it is “run by lawyers” was hardly a “gibe.”) Those lawyers are not appointed and granted tenure by the governor or legislature of the state, but by their seniors on the faculty. Their subjection to “legislative control and direction” is far more theoretical than real.
But I wish to emphasize that I do not confound Professor Cox with the people who want the courts to use the Constitution as a tool to enact legislation which the voters reject. Of course I agree with those who argued that the use by the functionaries of the Washington Law School of powers in theory delegated to them by the people violated the Constitution. I disagree with Professor Cox only insofar as he believes (if I understand his brief correctly) that the Constitution permits discrimination in favor of some races but not others. DeFunis was an example not of judicial use of the Constitution to circumvent the ordinary democratic process, but of the circumvention of that process by a bureaucracy peculiarly remote from “legislative control and direction.”
Naturally I agree with the first paragraph of Sidney Schindler’s letter, except that I do not object to the reapportionment cases. As a practical matter, malapportioned legislatures would never have reformed themselves, simply because too many of their members benefited personally from the malapportionment. If the sentence he quotes in the second paragraph is really open to the interpretation that I meant to accuse the anti-capital-punishment, pro-abortion, or pro-busing lawyers of “violation of law,” I apologize. I had no such intent. Indeed, in my review of Michael Meltsner’s Cruel and Unusual: The Supreme Court and Capital Punishment in the February COMMENTARY I went out of my way to describe him and his fellow opponents of capital punishment as “very gifted, learned, and ethical.” I meant only to point out that the distrust of the democratic process is shared by two otherwise very different groups of lawyers.
Finally I can only express agreement with Herman A. Gray’s point that there is little historical support for the proposition that the courts are better fitted than the other two branches to decide what is best for the country.
