Judiciary

By Excerpts selected by Andrea Sachs

Woodrow Wilson said they were a Constitutional Convention in continuous session, and Charles Evans Hughes observed with only a twist of irony that the Constitution is what they say it is. Each working day -- from the first Monday of October until the end of June or early July -- the Justices of the U.S. Supreme Court are asked by specific litigants with particular problems, Pray tell me, what does the Constitution mean?

When a major ruling is announced or a Justice resigns, as Lewis Powell did last week, public attention briefly turns to the court. But for the most part the Justices work in a hushed corner of the public arena. An average of 5,000 cases a year are submitted for their review, and they normally select 150 to 180 on which to hear oral arguments and render written decisions. The Justices begin that process at regularly scheduled discussions. Usually just after 3 p.m. on Wednesdays or at 9:30 a.m. on Fridays, they enter a spacious, oak- paneled conference room, located behind the courtroom. Following a century- old custom, they shake hands with one another and then settle around the rectangular conference table, with the Chief at one end and the senior Associate Justice, currently William Brennan, at the other. The most junior, now Antonin Scalia, sits to Brennan's right and answers any knocks on the door or hands out any messages necessary. No law clerk or other person is in the room during the conference.

The Chief speaks first, usually outlining the facts and issues in the case and expressing his tentative vote. The other Justices follow with their views in order of descending seniority. The outcome is now provisionally decided, and the majority opinion is assigned by the Chief or by the senior Justice in the majority. Then begins the writing process, for the majority and the dissenters. A Justice produces a draft, or reworks one from a law clerk, and circulates it to colleagues. Changes may be requested or offered to pick up or hold a vote. A coalition can come unraveled; a close initial vote may wind up going the other way. So the first audience a Justice must please is within the court, but the final opinions are directed beyond the litigants to guide lower-court judges, sometimes to instruct the nation, occasionally even to address history.

The reasoning is businesslike, lawyerly, as much to the point as the Justices can manage. But frequently an issue will incense or a principle inspire. Their words, which are their deeds, are part of what Americans live by. These selections are from the members of the current sitting Constitutional Convention.

WILLIAM REHNQUIST

A conservative 1971 Nixon appointee who became Chief last year

The court, striking down the death penalty in 1972, said the way it was then imposed offended decency. Rehnquist dissented.

Rigorous attention to the limits of this Court's authority is ((required)) because of the natural desire that beguiles judges along with other human beings into imposing their own views of goodness, truth, and justice upon others. Judges differ only in that they have the power, if not the authority, to enforce their desires . . . The most expansive reading of the leading constitutional cases does not remotely suggest that this Court has been granted a roving commission, either by the Founding Fathers or by the framers of the Fourteenth Amendment, to strike down laws that are based upon notions of policy or morality suddenly found unacceptable by a majority of this Court.

Furman v. Georgia

WILLIAM BRENNAN

The influential dean of the liberal group, appointed in 1956 by Eisenhower

In a 1973 case holding that servicewomen have the same right to benefits for their spouses as servicemen do, Brennan reviewed the status of women.

Our Nation has had a long and unfortunate history of sex discrimination. Traditionally, such discrimination was rationalized by an attitude of "romantic paternalism" which . . . put women not on a pedestal, but in a cage . . . Indeed, throughout much of the 19th century the position of women in our society was, in many respects, comparable to that of blacks under the pre-Civil War slave codes. Neither slaves nor women could hold office, serve on juries, or bring suit in their own names . . . It is true, of course, that the position of women . . . has improved markedly in recent decades. Nevertheless, it can hardly be doubted that . . . women still face pervasive . . . discrimination in our educational institutions, on the job market and, perhaps most conspicuously, in the political arena.

Frontiero v. Richardson

BYRON WHITE

A 1962 Kennedy appointee, a centrist more often on the right than the left

When the court announced the newly required Miranda warnings in 1966, White dissented. Yet he strongly defended the court's right to be innovative

The Court has not discovered or found the law in making today's decision, nor has it derived it from some irrefutable sources; what it has done is to make new law and new public policy in much the same way that it has in . . . interpreting other great clauses of the Constitution. This is what the Court historically has done. Indeed, it is what it must do and will continue to do until and unless there is some fundamental change in the constitutional distribution of governmental powers.

Miranda v. Arizona

THURGOOD MARSHALL

Since his 1967 appointment by Johnson, liberalism's unwavering voice

In 1972, when the majority held that unanimous verdicts were not required in state trials, Marshall was angered

Today the Court cuts the heart out of two of the most important and inseparable safeguards the Bill of Rights offers a criminal defendant: the right to submit his case to a jury, and the right to proof beyond a reasonable doubt . . . The skeleton of these safeguards remains, but the Court strips them of life and of meaning . . . The Court asserts that when a jury votes nine to three for conviction, the doubts of the three do not impeach the verdict of the nine. ((But)) we know what has happened: the prosecutor has tried and failed to persuade those jurors of the defendant's guilt. In such circumstances, it does violence to language and to logic to say that the government has proved the defendant's guilt beyond a reasonable doubt.

Apodaca v. Oregon

HARRY BLACKMUN

A moderate with liberal leanings, appointed in 1970 by Nixon

In Blackmun's 1977 opinion that lawyers have a right to advertise, he could not resist twitting some in his profession.

It is claimed that price advertising will bring about commercialization, which will undermine the attorney's sense of dignity and self-worth. The hustle of the marketplace will adversely affect the profession's service orientation. ((We)) commend the spirit of public service with which the profession of law is practiced . . . But we find the postulated connection between advertising and the erosion of true professionalism to be severely strained. At its core, the argument presumes that attorneys must conceal from themselves and from their clients the real-life fact that lawyers earn their livelihood at the bar. We suspect that few attorneys engage in such self-deception.

Bates v. State Bar of Arizona

LEWIS POWELL

A 1971 Nixon appointee and middle-of-the-roader who will be replaced next October

The court in 1977 forbade East Cleveland to use a housing ordinance to force a grandmother to expel her grandson from her home. Powell delivered the judgment.

Ours is by no means a tradition limited to respect for the bonds uniting the members of the nuclear family. The tradition of uncles, aunts, cousins, and especially grandparents sharing a household along with parents and children has roots equally venerable and equally deserving of constitutional recognition. Over the years millions of our citizens have grown up in just such an environment, and most, surely, have profited from it . . . The Constitution prevents East Cleveland from standardizing its children -- and its adults -- by forcing all to live in certain narrowly defined family patterns.

Moore v. East Cleveland

JOHN PAUL STEVENS

An independent with unpredictable enthusiasms, appointed in 1975 by Ford

A 1976 majority upheld a Detroit zoning limitation on adult theaters showing erotic films. Stevens explained his reasoning.

Society's interest in protecting this type of expression is of a wholly different, and lesser, magnitude than the interest in untrammeled political debate . . . Whether political oratory or philosophical discussion moves us to applaud or to despise what is said, every schoolchild can understand why our duty to defend the right to speak remains the same. But few of us would march our sons and daughters off to war to preserve the citizen's right to see "Specified Sexual Activities" exhibited in the theaters of our choice.

Young v. American Mini Theatres

SANDRA DAY O'CONNOR

Reagan's 1981 appointee, usually found with the conservatives

U.S. authority to regulate state employees' wages was endorsed last year. O'Connor chided the majority.

Because virtually every state activity, like virtually every activity of a private individual, arguably "affects" interstate commerce, Congress can now supplant the States from the significant sphere of activities envisioned for them by the Framers . . . All that stands between the remaining essentials of state sovereignty and Congress is the latter's underdeveloped capacity for self-restraint . . . Our federal system requires something more than a unitary, centralized government.

Garcia v. San Antonio M.T.A.

ANTONIN SCALIA

A conservative 1986 Reagan appointee

Last March the court turned down Paul Johnson, a white male who was passed over for a promotion because of an affirmative-action plan that favored women and minorities. Scalia dissented.

It is unlikely that today's result will be displeasing to politically elected officials, to whom it provides the means of quickly accommodating the demands of organized groups to achieve concrete, numerical improvement in the economic status of particular constituencies. Nor will it displease the world of corporate and governmental employers . . . for whom the cost of hiring less qualified workers is often substantially less -- and infinitely more predictable -- than the cost of ((fighting discrimination charges)). In fact, the only losers in the process are the Johnsons of the country, for whom ((a civil rights law)) has been not merely repealed but actually inverted. The irony is that these individuals -- predominantly unknown, unaffluent, unorganized -- suffer this injustice at the hands of a Court fond of thinking itself the champion of the politically impotent.

Johnson v. Santa Clara County T.A.