An Imperial Judiciary: fact or myth? — with Antonin Scalia and Ira Glasser (1978) | ARCHIVES

Announcer: From the nation’s capital, the American
Enterprise Institute for Public Policy Research presents Public Policy Forums, a series of
programs featuring the nation’s top authorities presenting their differing views on the vital
issues which confront us. Today’s topic “An Imperial Judiciary: Fact
or Myth?” Mr. Hackes: For more than a decade there have
been complaints from lawyers, judges, and defendants that lengthily delays are sabotaging
the fairness of the American Court System. It’s not unusual, especially in state and
local courts, to find that it takes as long as five or perhaps six years for some courts
to decide cases because court schedules are so overcrowded. Attorneys for defendants say that such delays
are unconscionable that long delays often jeopardize the right of their client defendants
to a quick fair trial which, they say, makes those delays unconstitutional. As they put it, justice delayed amounts to
injustice. What are the real causes of these delays? Is it true that so-called imperial judges
are a major cause? Are judges taking on so many new kinds of
cases that they don’t have time for the traditional ones? What in fact is an imperial judiciary? Should there be restraints, for example, on
judicial activism, as the legal system becomes more and more involved in such things as protection
of minority rights, the political process and in overseeing education and social services? What is the proper role that the courts should
play in today’s changing society? Welcome to another public policy forum presented
by AEI, the American Enterprise Institute, a nonprofit, nonpartisan, research, and education
organization. This roundtable discussion will present the
topic, “An Imperial Judiciary: Fact or Myth?” Appearing on today’s panel are: Abram Chayes, who is Felix Frankfurter professor
of law at Harvard. He has taught at Harvard since 1955 except
for a 3-year period during the Kennedy and Johnson administrations when he was legal
adviser to the state department. Antonin Scalia, who is also a law professor
at the University of Chicago. Professor Scalia interrupted his teaching
to serve as Assistant Attorney General in the Office of Legal Counsel during the Ford
administration. Professor Scalia is presently an adjunct scholar
at AEI having been a visiting AEI fellow in 1977. Laurence Silberman, also an attorney, is former
U.S. Ambassador to Yugoslavia, served as Deputy Attorney General and as Undersecretary of
Labor during the Nixon and Ford administrations. He is a senior fellow at the American Enterprise
Institute. Ira Glasser is Executive Director of the American
Civil Liberties Union. He has also served as head of the New York
Civil Liberties Union. Mr. Glasser was editor of a magazine called
“Current” before joining the New York Civil Liberties Organization. John Charles Daly is the moderator of today’s
roundtable discussion. Mr. Daly is a former news correspondent and
commentator for CBS News and ABC News. He is a former ABC network vice president
and once headed the Voice of America. Now, here is Mr. Daly. Mr. Daly: This Public Policy Forum, part of
a series presented by the American Enterprise Institute, is concerned with the basic element
of our concept of government, the checks and balances established in the Constitution among
the executive, legislative, and judicial branches of government. Our subject, “An Imperial Judiciary: Fact
or Myth?” Over centuries, charges of abuse of power
have fallen on executive, legislative, and judicial branches very often, but with the
exception of the catastrophic explosion of Civil War, the imbalance has been redressed
by the inexorable impact of the Constitution’s checks and balances and by the passage of
time. In this era of explosive change, the judiciary
is the target. With the legislature and the executive often
at cross-purposes, with enthusiastic special interest the ethics of the day, with uncertain
leadership and the public poll a dominant yardstick in decision making, the courts have
become the stage upon which the day-to-day drama of the American experiment is played. The charge is now made that the courts function
too broadly and planned and managed a reordering of the economic, social and political life
of the nation. As earlier we heard cries of an imperial presidency,
we now hear of an imperial judiciary. Ambassador 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 it mean? Mr. Silberman: Well, I should answer the second
question first, what it means is that one branch of our government, in this case, the
judiciary, is seeking successfully power at the expense of the other two branches and,
to an extent, at the expense of society as a whole, as of the private sector. And I do believe we do in that sense have
an imperial judiciary. It seeks power and it has in the last 25 or
30 years gained a great deal of power. But beyond that, it is important to note that
is has given much too much power. Mr. Daly: Mr. Glasser, as executive director
of the American Civil Liberties Union, the courts are your primary field of battle. Do you find an empire therein? Mr. Glasser: No, I think that basically, the
courts are a reactive institution. They’re the only branch of government which
cannot, by itself, initiate action, and I think, therefore, they are necessarily weaker
and more limited in their exercise of power than either of the other two branches. I think they’re the only institution that
is charged with adjudicating claims against the majority and it’s charged with limiting
the power of the majority. And in that respect, I think it is the only
institution that protects our liberty by setting goals and limits on the other two branches
that it may on one or another instance, exceed those limits itself is undoubted. But I think that as an institutional question
I find the charge basically derivative of dissatisfaction with the merits of decisions
and not supportable as a procedural matter. Mr. Daly: Professor Scalia, you have noted
that between 1960 and 1975 the number of cases in the federal district courts doubled, the
number of cases in the appellate courts quadrupled. The number of cases in the Supreme Court doubled. Does this automatically mean the courts will
have a very important impact whether they wish it or not? Mr. Scalia: No, not the kind of impact that
concerns me. It isn’t a question of how many cases come
before them. It’s a question of what types of issues they
decide. For example, do they or do they not decide
that the citizens of California can have a referendum on the desirability of open-housing
laws? Do they or do they not decide whether schools
should be funded on a local basis so that varying districts can have schools with varying
degrees of excellence? Do they or do they not decide that the not
only a possibly desirable but the constitutionally mandated way to achieve integration in society
is to bus students from one school or another? It’s the issues they’ve chosen to decide not
the number of cases that come before them. Mr. Daly: All right, Professor Chayes, you
have written over the last two decades courts have assumed the responsibility for desegregating
school systems, reapportioning legislatures, regulating employment practices of major companies,
supervising land use, planning of municipalities, directing credit practices of banks and credit
card companies, monitoring environmental quality, and even managing mental institutions and
prison systems. In view of the laws and regulations pouring
out of the legislatures and the government agencies in the last two decades, did the
courts have a choice? Mr. Chayes: Well, I guess you’re right that
in the implication that growth in judicial visibility at least is one of the afflictions
and diseases of modern civilization. If you take modern civilization, you’re gonna
have to take the good with the bad. And to me, it seems almost inevitable, in
our country at least with the historic tradition of judicial settlement that the judicial role
is going to expand. The government is expanding, the legislative
role has expanded. The executive role has expanded, and it seems
to me only really quite obvious that the judicial role would expand with it. The alternative to that is, as Mr. Glasser
said, unchecked legislative or executive power and this country has never operated on that
premise. Mr. Scalia: I guess that shows to what degree
we come at this thing from opposite ends because I took Mr. Daly’s implication to be just the
opposite. That is to be that since we do have such active
legislatures nowadays that devote their attention in some detail to all sorts of things, isn’t
it possible for the judiciary to rely upon that process perhaps to an even greater degree
than it used to in the past? Isn’t somehow the need for judicial involvement
in one respect, at least lessen what it used to be? Mr. Chayes: Sometimes in detail, you know,
and sometimes not. The Internal Revenue Code is an example of
the legislature operating in detail. The antitrust law is an example of the legislature
operating at large and telling the courts in effect laying down a rule that says corporations
shall not combine unreasonably in restraint of trade and leaving the courts to figure
it out. Now, that too is a rather general phenomenon
in western countries. That is the phenomenon of legislatures acting
to lay out broad lines of general policy and leaving it to others, in other countries mostly
to bureaucrats, to work out the details, in our country, a combination of bureaucrats,
administrative agencies, and courts, to do, to fill in the details. Mr. Silberman: The question is not so much
it seems to me. The scope or the quantity of issues as, you
know, said earlier that are put to the judiciary. The question is really the quality. And therefore, it would seem to me the way
you put it, Abe, that you would expect the judiciary to grow in business as the other
branches grow with the expansion of the government is a bit misleading because what has happened
is that more of the fundamental policymaking has shifted to the judiciary than was ever
true before. That is to say, let’s assume a steady rate
of growth of all three branches in terms of the amount of material they have before. It would be my argument, and I think Nino’s
too, that more of the fundamental policy which in a democratic process as our basic premise
is put to the people more of the fundamental policy has shifted to the judiciary. And therefore, the legislatures, the Congress,
and indeed even the presidency weakens and atrophies. Mr. Glasser: Let me suggest though another
distinction that I think shed some light on that problem. And I think as a development that is unquestionably
true. Nino made a point before that is not the number
of decisions that concern him, but the kinds of decisions. Well, there’s another distinction to make,
it’s not so much the kinds of decisions as to who has rights in various institutions. But what happens once you adjudicate that
those rights exist, what’s the remedy. Most of what you would call I think the detailed
management of the institutions that flow from judicial decisions flows at the remedy stage. The way that arises from my point of view
and I operate as you understand only in the area of rights, what happens is is that there
is a claim of right the claim may be in behalf of a mental patient in a mental hospital. If that claim is is that he shouldn’t be there
against his will because he has committed no crime. If the court rules in his favor, that’s the
end of it. The state doesn’t have the power to hold him,
and it releases him. But that’s not what the courts have ruled. What the courts have ruled is that he can
be incarcerated for his own good so long as the quid pro quo is given by the state that
is if he’s being incarcerated not because he is dangerous or committed a crime, but
because he needs treatment, then it must as a matter of right provide that treatment. Then he goes into the mental hospital and
what he gets is custody and brutality. So he makes the claim in court that if you
want to continue to hold me I have a right to treatment. If the decision is that he does have that
right, then the question is how can you mandate it. The court orders the hospital to provide it,
three months later the patient is back in there with his lawyer saying they’re not listening. The attempt for the court to mandate the remedy
and this is true in prison cases, in mental hospital cases, in foster care, children’s
rights cases, it’s also true in school desegregation. The frustration and the problem we’re dealing
with arises at the point of remedy, where the majoritarian system, the executive branch,
the legislative branch, public agencies, do not respond in any self-executing way to the
initial court order saying that there is a right. So what you’re confronted with is a right
without a remedy, and the court is then involved and the lawyers on both sides are involved
in a kind of ongoing external administration of those agencies. Now, I can see that that’s a real problem,
but to simply say that the court shouldn’t be involved in that is to cede all of that
to the legislatures and to simply assume because I think that that’s the fact that there will
be rights, there won’t be remedies and therefore I think in the end there won’t be rights. Mr. Scalia: What the argument is about in
most of these cases is not whether there’s a right or not, but whether, in fact, the
right has been adequately observed or not. And the courts are increasingly willing to
set themselves up as the judges of that fact. That is one source of the difficulty. A second source is simply the…you can speak
very facilely of rights. Where are their rights and where are they’re
not. That is another judgment that the courts have
been increasingly willing to arrogate to themselves. In the abortion situation, for example, whether
indeed the right that exists is the right of the woman who wants an abortion to have
one, or the right of the unborn child not to be aborted? Who knows? In the past, that was considered to be a societal
decision which would be made through the democratic process, but now the courts have shown themselves
willing to make that decision for us. That’s, I think, the major objection that
most people have with the direction in which the courts are now going and the major reason
why many people feel that it is indeed an imperial judiciary. Mr. Daly: Ambassador Silberman? Mr. Silberman: Now clearly, clearly, democratic
processes cannot exist without the recognition of certain fundamental rights, with it democracy
is impossible. You must protect in a democracy the right
of dissent. That’s what democracy is all about, a system
that legitimates dissent. But going back to the point Nino was making,
once you start debasing this notion of rights, once it becomes a tag word for everybody’s
claim, then it really becomes simply a way of transferring particular controversies from
the representative processes from the legislatures, etc., to the legal process. Because when you say you have a right, that
means I have a superior moral claim against the majority. And in a democratic process, you have to worry
about that, because it’s conceptually quite possible that that will grow and grow and
grow and indeed, some of us believe it is growing to that point where you’re robbing
from the political process as well as from the private process. Mr. Chayes: Well, I think it’s important to
make the distinction between courts operating under the Constitution which Nino was talking
about, and courts operating under statutes, it may well be true that in your view it’s
unwise for Congress to give authority to courts to work out the details of a general policy
embodied in a statute, but at least you can’t say it’s undemocratic. It’s the Congress who has decided that it’s
the courts who are supposed to do this. And presumably, they have decided it on the
basis of some feeling about the value of judicial development, let’s say, of antidiscrimination
laws, Title VII cases. Here you have a situation which Congress has
asked the courts to work out the meaning of that general legislative mandate. Now, that’s not something that’s confined
to this country. Mr. Silberman: It wouldn’t be the first time
in history that a democratic process or a democratic process or a democratic government
was involved in its own atrophy or even destruction. In fact, the truth of the matter is that Congress
increasingly delegates more and more authority to the judiciary and to the regulatory agencies,
in a combination, because it has increasingly been intimidated by the judiciary. Mr. Chayes: Well, intimidated, part of the
problem as I say. This isn’t something that’s unique to this
country. You find the phenomenon of delegated legislation
in every Western democracy. Mr. Silberman: Yes, but this is the only industrial
democracy with a tripartite structure with an absolute division between the executive
and legislative branches, and judicial, and that’s very important because the founders
of our democracy intended to make the accretion of governmental power difficult. And what has happened by virtue of this enormous
growth in the legal process, in the judiciary process is what we have seen as a way in which
a certain segment of our society has sought to circumvent the limitations of the Constitution
and, therefore, enormously expand governmental power. Mr. Glasser: Well, let me see, I think as
generalities there’s little that I would have to disagree with you. The problem is is that I don’t think that
this issue is illuminated by talking in generalities. When you said a moment ago that the problem
is that rights are being debased because everybody who has a claim of any kind calls it a right,
tries to get it adjudicated, the courts are reaching out and becoming accomplices to that
process, and the whole concept of rights is getting debased. Now, there is a good deal of that. I mean I see it every day in my office. I guarantee you that 95 out of every 100 people
who come to the Civil Liberties Union looking for help because something is going wrong
in their lives and they think their rights are being violated and they get very angry
when we tell them that’s not a constitutional right. Mr. Silberman: But you tell him to come back
next week, it might well be. Mr. Glasser: Yeah, that’s right. Why wait until the last minute? We’re working on it. And the real problem is is that I believe
that if the word “right” has any legal meaning as a functional term in our system, it frequently
denotes something which must be immune from being overridden by the majority, and that
is my day-to-day definition of a right. Mr. Silberman: I think we would all buy that. We’d all buy that. Mr. Glasser: I think you would not disagree
with that. So what we’re talking about then is not really
a general disagreement. I mean we each can state this in general terms
which the other will find it hard to disagree with. I think I suspect. I think I know where we will disagree is that
our definition of particular rights will differ. And that’s what I meant at the beginning by
saying that I thought that this procedural argument about the overreaching of the courts
was, at the bottom, a disagreement that we had about the merits. Mr. Scalia: Well, there are two aspects as
I think Abe pointed out there. There is the function of the courts’ expansion
which is related to their constitutional function of deciding what are constitutional rights,
and much of what they’ve done is in that area, and I think they’ve gone too far in that area,
finding rights where the society never believed they existed before and I don’t know where
they plot them from except out of their own minds. There is an entirely separate area through
which I think might be larger. And that is not the creation of rights from
the constitution, but rather the interpretation of legislation that has been enacted by mainly
the federal Congress. I could not disagree more with Professor Chayes’
notion that it must be democratic if it’s been enacted by a Democratic Congress. The courts used to have a doctrine that Congress
could not delegate authority beyond a certain degree because that would be unconstitutional
to see the way… Mr. Chayes: You know there’s only one case
that says that. Mr. Scalia: Now, wait a minute. That’s right, but the concept is a difficult
one to enforce. But the…let’s talk about specifics. Congress decides to pass a law saying there
shall be no sex discrimination in universities, any university programs. Why do you think the Congress is not more
specific? The simple reason is that they realized that
the democratic process in that context puts too much heat on them. By passing a law like that everyone applauds. Who is in favor of sex discrimination in universities? Please stand up. No one, certainly. Mr. Chayes: You could all sit down again. Mr. Silberman: You got to be quick Nino, you
missed them. Mr. Scalia: But now the Congress certainly
knew when that law was passed that there are a lot of real political questions involved
in that decision which should be decided through the democratic process. What does sex discrimination mean? Does it mean that major universities can have
a football program in which they spent enormously more money on football teams than they do
on their women’s sports programs? Many other issues like that. Congress chose not to address it and they
kicked the ball over to the courts because it’s easy, but that is not a democracy. Mr. Chayes: But Nino, two things, first of
all, Congress remains there and can change it but doesn’t like it. We had a situation just this last year where
Congress does the opposite. It said never, never, never kill an endangered
species no matter what. So the court did exactly what the Congress
said. It said, “We won’t build this dam because
we got to save the snail darter.” And the Congress decided that that wasn’t
really what it meant, and changed it. Mr. Daly: I am just an under-read layman but
the imperial concept to me was reaching out and grabbing, and yet much of what I’ve heard
tonight says that this is all 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 the court reaches,
the more the Congress gives it. That’s why we have discussed it in a way we
had. In other words, the more the Congress sees
the judiciary is willing to take on what we used to refer to in law schools some 20 years
ago as political questions to be issued. It used to be a doctrine in law schools, it
used to be a doctrine in the courts that in a democracy the courts should try to avoid
political questions. By that, we meant basic policy issues that
are more suitable for a legislature. Mr. Glasser: I think what you’re really saying,
and I don’t want to charge you, Nino, with having made a concession a moment ago but
when you focused in on Congress and said that Congress is not passing specific enough statutes,
Congress is enacting laws or failing to enact laws in such a fashion as to thrust the adjudication
of claims that individuals make into the courts. I think that was closer to the truth. I think the problem with thinking about the
judiciary in the same imperial terms as you think about the executive and the legislature
is a little bit of an exercise in nominalism, a little bit of cute trick by using the word
“imperial.” Mr. Silberman: It was Nathan Glazer who first
used it and he used it at a time in a Public Interest article, that he used at a time when
much of the intelligentsia in this country was focusing, probably falsely, on what they
saw to be an imperial presidency. At the very time the presidency was declining
in power, and Glazer came along and said, “Hey, wait a minute there’s another branch
of government that is arrogating to itself enormous power to define, to elaborate, to
create rights, and to administer whole segments of our economy, hospitals, schools, etc.” Mr. Glasser: Yeah. But that happened exactly at the time that
Glazer began to change his position on the merits and that’s what I’m continuing to say. So the problem is that I think that the power
of the judiciary to assume an empire unto itself is intrinsically limited in a way that
that legislature and the executive does not because it cannot initiate action. And I’ve 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. I mean if you prowl the halls, you’ll hear
them say that. That’s no good, but the fact of the matter
is that once they pass the statute, what is somebody with a claim under that statute supposed
to do when they…if they pass a statute saying, no sex discrimination at universities, and
then a woman wants to try out for the badminton team, let’s make it a little bit harder so
it does involve personal contact. And the university says, “No, you can’t do
that, we just don’t have mixed sports.” And the woman says, “But look at the statute.” And the administrator says, “The statute doesn’t
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 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 a legislature, partly arrogated by the court itself. And let’s not forget to blame the executive
branch. Because in fact what the executive has been
doing for many years is going up to the Hill and seeking broad statutes, because they were
on the impression that the more vague the statute, the more discretion I have. What they have found in recent years however
is that the courts are suddenly beginning to pretend that these absolutely meaningless
phrases have meaning. And so, instead of arrogating discretion to
the executive, they find to their horror that the discretion is sucked right over into the
courts. That’s what’s been happening. So I think you can blame everybody. You can blame the Congress, you can blame
the executive, you can blame the courts. I don’t care who you blame, I just don’t want
the crown there. Mr. Chayes: I think it is true in a sense
that one of the occasions for an apparent expansion of judicial authority has been the
delegitimization of Congress and the executive over the past few years. It still is not true that Congress is weak
or powerless or that the executive is weak or powerless. We do have a very strong interaction among
all those 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’s not true. You have one right now that’s been going on
for many years on bussing. If you take polls, you know, if you came down
from Mars and looked at the United States and saw that the vast majority of American
people, black and white, opposed bussing, forced bussing. You would say, “Well, my gosh if this is a
democratic society and this is such a dubious question, and it’s decided in such a fashion
against the majority will, how can you justify?” So I’m not sure that’s really true. And I’d like to go back to point that you
made… Mr. Glasser: I think the factual assertion
is nonsense. Mr. Chayes: That’s right. Mr. Silberman: You mean the polls? Mt. Glasser: No, I mean the fact that most
people oppose bussing. Nobody opposes bussing in this country except
the people who oppose bussing for the purpose of integration, 97%… Mr. Silberman: No, no, mothers opposed bussing. Mr. Glasser: Forced bussing is what I said. Mr. Silberman: Forced bussing is what you… Mr. Glasser: But they don’t oppose it because
they’re on a bus. They oppose it because of where the bus is
going. Now, you can disagree with that but that’s
not the same thing as saying they opposed bussing, 97% of the bussing… Mr. Scalia: We could say the same thing about
a person who is kidnapped. I mean what exactly, you know… Mr. Glasser: No, you could say it. I can’t say that. Mr. Scalia: I don’t know, I’m in the car,
I just care about where the car is going. Mr. Glasser: Well, that’s exactly right. Kids get bussed to schools. Kids get bussed to school that they don’t
choose all the time. Miles away from where they live and nobody
ever objects. And you see what’s happening now is what I’ve
suggested from the beginning. We disagree about the issues, we don’t disagree
about the procedures. Mr. Silberman: No, the important point here
is not why people are upset, it is the fact that they disagree. And that the fact is we live in a society
in which majority rule, with some limited exceptions, is supposed to obtain. And yet, here we have this major question
on which all of our political institutions and certainly all of our people come out one
way, and our judicial system comes out the other way, in absolute defiance and in continual
defiance. So I go to that but that’s proper if you’re
dealing with rights, isn’t it? Mr. Glasser: It could be, yeah. Mr. Silberman: I know, one man is right, the
other man is kidnapping is what he said. Mr. Daly: Could we get at, you know, the fundamental
issue of you say the majority of them. We have had several elections since this became
a major issue. Can you think of any number of legislators
in either house who had not been returned to office because their position on bussing
was that it was necessary and right? Mr. Silberman: As a matter of fact, in the
last few elections you probably couldn’t because there are very few legislators whose positions
are not consistent with the way I expressed it. Mr. Chayes: But the Congress has never passed
a bill limiting the remedy to its constitutional… Mr. Silberman: In part A because the argument
has been made. It would be unconstitutional to do so. Mr. Scalia: And that is the major thing that
they themselves will assert if you ask them why they haven’t don’t it for not passing
a statute because they’ve been persuaded that there are some constitutional rights that
the courts cannot be interfered with in this respect. Mr. Silberman: Yes, there’s a certain mystique
about the judiciary in this country, and a false mystique at that. It indeed a mystique which was… Mr. Chayes: Those are the best kinds of mystiques. Mr. Silberman: Yes, of course. It was a mystique that was more justifiable
some 20 years, 30 years, 40 years ago when at the same time there was a doctrine of judicial
self-restraint. After all, in our law schools, in our legal
periodicals, and on judicial decisions itself, 30 years ago there was a great deal of attention
to the old Frankfurterian view. Mr. Chayes: Well, Laurie, I clerked for Justice
Frankfurter, and he sure was an advocate of judicial self-restraint when he was in the
minority. And the advocates of judicial self-restraint
mostly have been, as you say, in the academies on the one hand and on the other the people
that were losing. I think Ira is correct in that. Mr. Silberman: I don’t agree with that. There was… Mr. Chayes: It is quite interesting to see,
for example, that in the ’20s and ’30s, the liberals were all for judicial self-restraint
and the conservatives were all for judicial activism because the court was coming down
on the conservative side. Now, the liberals don’t care so much about
judicial self-restraint, and that’s all the conservatives are talking about. The concern here is far more with whose ox
is gored than with kind of broad questions of political philosophy. Mr. Silberman: So you have written, but indeed,
if one takes it to its logical extreme, there really is no restraint whatsoever on the judiciary
and we might as well just give up and allow them to make all the important fundamental
policy decisions in our society and you can’t possibly mean that. Mr. Chayes: No. Mr. Scalia: Abe, if what you’re saying is
that the portion of society that is most being harmed by the activism is the portion that
is likely to squeal the loudest, it’s certainly true but I don’t see how it says anything
about the truth or falsity of the fact that the court should not be activist. They were wrong when they did it in the ’20s,
and they’re wrong when they do it today. Mr. Chayes: Well, it seems to me that, historically
at least, and I have tried to develop that at some length, historically, at least that’s
not the truth. The court has been active since John Marshall
decided Marbury and Madison or upheld the Bank of the United States or since the court
outlawed legal tender or the income tax. The court has been a part of the political
process, was designed to be a part of the political process from the beginning. That’s what Article III of the Constitution
means. As you said, Laurie, we’re the only country
that has a judiciary as part of the government. Mr. Silberman: Yes, but in all fairness, Abe,
the judiciary is going to be less active if they worry about it and if law professors
teach them to worry about it, and if indeed law students are taught to worry about the
legal process and the judicial process expanding too much because it is a threat to democracy. Granting it’s never gonna be perfect or you’re
never gonna have a clear line between that which the judiciary can do and that which
it cannot do. But nonetheless what is important is we have
lost the judicial humility. We have lost the sense of self-restraint. Mr. Chayes: Well, Laurie, you have been talking
to the judges I have been talking about, who on this… Mr. Silberman: Humble judges? Mr. Chayes: …on this question of arrogation. Yes, humble judges. You talked to Judge Lasker in New York or
many of the…talked to Frank Johnson in Alabama. Those people are not people who’ve reached
out and grab power. Those people are people who have seen not
just gray-area violations of rights. Those people have…they’re people who walked
in the mental institutions and prisons and seen people being tortured, having hoses stuck
down their throats, things like that. Is a judge to sit by and say, “Well, that’s
what the majority says.” Mr. Silberman: You know there’s an old aphorism
which it seems to me is relevant here, “If you hang out your shingle and your service
is free, you’ll get all the business.” And that’s what the judiciary has done. There were doctrines for many years in this
country which limited judicial relief. You had to have standing, which is a legal
word what it really means you had to be hurt. You had to be hurt before you could go into
court. You couldn’t go into court because you didn’t
like what the government was doing generally, you didn’t where your tax money was going. And that doctrine for many years prevented
the judiciary from being dragged into all sorts of policy questions. Well, really that doctrine eroded only in
our lifetime. Mr. Glasser: But Laurie, I said at the beginning
that I thought we had to talk about specific issues and not about generalities. There was in the early ’70s a place in New
York City called Willowbrook, which is a school for the mentally retarded. You walk in there and you found kids with
maggots in their flesh, underneath casts that had not been attended for months. You found 100% of the kids admitted in that
school getting hepatitis within 6 months. You found daily, weekly, preventable deaths
from kids choking for a very simple reason because there wasn’t a resuscitator on each
floor of that hospital. One of the elements of the 80-page single
space order that a conservative judge like Orrin Judd in New York issued 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 resuscitator on every floor, and that decision was attacked in newspapers by some people
for, among other things, including frills and details, and that was one of them that
they mentioned because if you don’t understand the relationship of having a resuscitator
on every floor and the preventable deaths that happened to retarded kids when they’re
being force-fed by too few people and they’re choking because they can’t coordinate themselves,
then you don’t understand what the issue is about. If you went down the 80 pages of the single
space, you would details that you wouldn’t ever believe could come out of a court. I don’t even believe they could come out of
a legislature. It’s the kind of thing you would normally
expect to come of the administration. I agree with you completely, it should have
years ago, decades ago. I got to tell you something, it didn’t and
people died, it didn’t and people had maggots in their flesh, it didn’t and people got hepatitis. And what happened even after the court order
is that the, you know, the trouble with talking about the courts is a powerful instrument. They made the court order, it was terrific,
the lawyers all thought they won, there was a story on the front page of the Times and
guess what happened the next day, the next week, the next month, the next year, now,
years later? Nothing, there was no enforcement. Mr. Silberman: Maybe that suggests it is a
great or fundamental mistake of judicial authority. Mr. Glasser: It doesn’t suggest that it’s
a mistake, it suggests the problem. The problem is that 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 institutions are gross beyond belief, and the administrative, executive,
and legislative branches that should be dealing with them in detail don’t. And then you go to the court and you say,
“Do something about it,” and they do and then it’s not enforced and they try to enforce
it through contempt remedies, and it creates both in the courts and the lawyers a kind
of external administration which is nonsense. But the remedy to that is not that the courts
are arrogating power, the problem is is that the alternative is to let those people rot
because the administration will never do anything about it. Mr. Scalia: I think you’re right that the
areas of our agreement are probably much greater than the dispute might indicate. We have no quarrel, I think. Where the right in question, if it’s being
enforced through the constitution, is one as to which the whole society has no question. Forcing hoses down people’s throat, inmates
deteriorating physically because of grossly inadequate treatment such as you’ve just described. There’s no question that society holds those
values high, and one does not have an objection to the courts enforcing those rights. But the courts have enforced other rights,
so-called, which there is no societal agreement upon. In the abortion cases, at one extreme, and
to descend from the sublime to the ridiculous school dress codes and things of that sort,
there is no national consensus about that and there never has been. The courts have no business being there. Mr. Glasser: But Nino… Mr. Scalia: Just let me get the whole thing
out. That’s one of the problems. They are focusing upon rights and calling
rights things which we don’t all agree about. The things we agree about, no quarrel. The second problem is the issue of standing,
which Laurie had described. It essentially means that you have been harmed
yourself. Since you’ve given a case history, let me
give a case history about a case in which the court has found adequate standing to exist. The well-known Scrap case which involved a
decision by the Interstate Commerce Commission not to suspend a railroad freight increase
of 2.5%. That was challenged in the courts by a public
interest group who claimed that they were hurt substantially affected themselves on
this ground that they use the national parks and that the 2.5% freight increase would cause
the cost of recyclable goods to increase wherefore more beer bottles and nonrecyclable goods
would be found lying about in the national parks. Now, can one seriously quantify the individual
interest that is constituted by the possibility of seeing that number of beer bottles that
would be attributed to a 2.5% freight increase by the railroads, it boggles the mind? But the court said, “Well, that’s enough for
you to bring your cause before us and we will decide it.” John Marshall would have turned over in his
grave, Abe. Mr. Chayes: Nino, let’s go back to the first
point. You say we can enforce rights as to which
there’s a consensus, but not these far-out rights. It’s interesting to me that the first free
speech case under the United States Constitution occurred when, 1918, after 150 years. So the court has always, I think, been and
necessarily must be on, in one sense, the frontier of rights because the people who
are making these claims who are sensitized to the deprivations go to the courts, that
is their refuge, number one. Number two, you talked about standing. Well, there again I’m interested that not
only in this country but to take this country alone. The Congress, in the Clean Air and Clean Water
Acts, has enacted citizen standing. It has said, “Any citizen, whether hurt or
not, may sue to enforce these things.” Why? Because Congress is interested in getting
the rules enforced. It doesn’t believe or maybe it doesn’t appropriate
enough for the governmental enforcement agencies to do so. It enlists citizens to enforce these rules. So in the same area of environmental protection,
the Congress itself has said, “Any citizen,” or in the Freedom of Information Act, “Any
person…” Mr. Scalia: I agree with that. It’s a mistake. I’ve said before, the Congress should not
say that. When the Congress says that, what it amounts
to saying is that every citizen has a right, and you can call it that if you want, a right
to have his government act justly, fairly, and efficiently. Once you confer that kind of a right and you
call it a judicially enforceable right, then everybody can go into the courts whenever
there’s anything wrong in any agency activity. So if the ICC allows a 2.5% freight increase
that you don’t like, suddenly that becomes a judicial question, at your instance, even
though you have not been substantially affected by it. This is precisely what has caused a vast majority
of issues to be decided in the courts and it should not be there. Mr. Silberman: And what is important, and
we have not focused on is the judges, for the most part, in this country are not elected. Indeed, they are insulated from the political
process. Therefore going back to your original point,
Ira, I would say that we have to worry more about an imperial judiciary than we do about
an imperial presidency or an imperial Congress because we can throw the rascals out in the
executive branch or in the Congress. We can’t throw them out of the judiciary. Mr. Chayes: No, but we can go on… Mr. Silberman: As we just saw in California. Mr. Daly: And I suggest that we’ve created
a very broad base from which to receive questions from our friends and guests in the audience,
and it’s time for the question and answers session, please. Yes? Mr. Lichtenstein: David Lichtenstein, general
counsel, Accuracy in Media. If my memory serves me correctly, I heard
a very distinguished professor at Harvard Law School, who subsequently became a justice
of the Supreme Court, say that the beginning of wisdom about constitutional law is that
the United States Supreme Court makes political decisions. Now, that’s a rather ambiguous term. As a matter of fact, several speakers have
used the phrase “policy decisions.” And I would like to ask Mr. Scalia or Mr.
Silberman could you possibly define what restrictions and what line you would draw between a policy
decision and a legitimate area within which the Supreme Court in our constitutional system
may operate? Mr. Daly: Would you like to step, Professor
Scalia? Mr. Scalia: Yeah, it’s an awfully big question. Needless to say, there is plenty of room for
the Supreme Court to make important social decisions, if that’s what you mean by “political
decisions,” within my constellation of things. Where do I draw the line? I draw the line at the point where in the
rights area, constitutional rights, the court plucks out of the air a principle of action
which is neither felt by a majority of the people within the country today to be necessary
nor was felt by the people at any time in our history to be necessary. Now the examples of those that I’d give would
be, for example, the court’s decision in capital punishment. There is simply no historical justification
for that, nor was there any way in which the court would say, “Well, we’re expressing a
modern consensus of the society.” It’s just not true. And I think you could say the same thing about
the abortion decision. Now, that’s really telling you what a proper
political decision by the court is not. It’s very hard to tell you what it is. It’s short of there, short of making fundamental
social determinations that ought to be made by the democratic process and that the society
has not yet arrived at. I think the court has done that in a number
of recent cases. As for the bussing cases, there was no need
for the court to say that granted that school desegregation is bad. The inevitable remedy for unlawful segregation
is bussing. There are many other remedies that might have
been applied. It was not necessary for the courts to step
in and say, “This is 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. Daly: Mr. Glasser? Mr. Glasser: Yeah. Well, I think the problem with continuing
to refer to what the consensus of society is, Nino, is that the court is charged with
making decisions precisely on behalf of minorities and against the consensus. That’s usually why the minorities are in there
in the first place making claims. And one of the problems that you have is that
if you had left it 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 of a right, the Court is always out at the edge of the frontier,
it’s always acting as a limit on majority rule. In fact, you know, the well-worn phrase, “Tyranny
of the majority” is precisely in some respects what the Bill of Rights is supposed to deal
with as a hedge against on what the courts are charged with enforcing. Mr. Scalia: But I’m not talking about just
the temporary consensus. I’m not saying the Court has to always go
along with the consensus of the day. If the Court finds the traditional consensus
of the society, the constitutional substratum of the society is against the daily consensus,
excuse me. If that’s the case, then the Court overrides
today on the basis of our historical beliefs as a society. I can understand that. But I can’t understand it, as I said, when
neither history nor current social perception demands that something be called unlawful
that the Court can somehow find it to be so. Mr. Glasser: Both were against school desegregation,
though, in 1954. Mr. Silberman: Let me respond to the question,
which I think is a very good one and a very tough one. I do not believe what has almost been an assumption
of several of our panelist here today that the judiciary will always be involved in political
decisions, and we really shouldn’t…we should lay back and enjoy it. I do think that, in fact, and would concede
that certain political issues have always slipped into the judicial process and always
will. It’s very hard to try to excise them from
it. But I do believe that in a democracy where
judges are appointed and have such enormous potential power that it is crucial that they
constantly struggle with the doctrine which is self-limiting and that they constantly
seek a way of trying to eschew political or policy issues. Now, when we were in law school, we were taught
that a policy issue is surely the opposite from recent collaboration that kind of question
with which there are a number of choices in which do not follow from a given logical process. And that maybe that it was somewhat unsatisfactory,
but the thing that I would so strongly point to that whatever the doctrine is, whatever
the way people refer to it and the way judges refer to it, and law professors refer to it,
I think it’s indispensable in a democracy that they do constantly struggle with that. And once the court starts on a big question
like “one man, one vote” or desegregation, aren’t…haven’t you then bought everything
which our colleagues to the left say is inherent which is the administration of the institution
from there, all that. Well, I don’t think that’s true. First of all, there used to be a doctrine
that the court should try to avoid continuing supervision of a decree. That used to be quite accepted, you know,
that courts recognized that it was unseemly for an appointed official with lifetime tenure,
or something approaching that, to get involved in making this administrative judgments day-by-day
as how to run a hospital or a prison. In fact, what has happened over the last 30
years, these judges no longer worry about it. You know, they get the case and they just
go merrily on their way and then it comes fun to go around running all these institutions. Everybody is a secret administrator. Mr. Daly: Professor Chayes? Mr. Chayes: In the 1890s and early part of
the 1900s about 30% of the railroad trackage of the country was being run by federal courts
in equity receiverships and for exactly the same reason, not because courts were very
good at running railroads, or because people thought courts should make policy about railroads,
but because the people who ought to have been running the railroads were running them for
their own benefit and not for the benefit of the shippers or the stockholders. And so, they ran them into the ground. As a result, you called in the courts for
a while to reorganize them, hopefully, and to get them to the point where they could
be turned back to the people who were supposed to run them and who would hopefully run them
again in a way that comported with their legal obligations. The final point I’d like to make about the
decree again is this business of courts rushing in to make detailed decrees, again, I have
to say does not comport with the facts. If you take the desegregation cases, for example,
we had 12 years of Brown versus Board of Education all delineate speed and so on with never a
bussing order, never a compulsory desegregation order, with all of the cases culminating in
orders in which the court said to the defendant school district, “Now, you make a plan to
desegregate.” And we had 12 years of that with no effective
desegregation before finally, the Supreme Court in Greene said, “Approve a compulsory
order.” The same is true essentially of these institutional
cases. The court doesn’t rush in with a decree. The court says to the administrator of the
institution, “You figure out a plan, you figure out how you can bring this institution into
compliance with decent conditions.” And the administrator doesn’t do very much,
and there six months pass or a year passes and there are people are in the same condition
as before. And it’s only after a considerable time, and
I think every one of these cases of time with opportunity for voluntary compliance by the
defendant. For the very reasons you say that the court
doesn’t really like to get into this business and they feel quite uncomfortable in this
business. Mr. Scalia: The judges are no more immune
than the rest of us to the blandishments of publicity and power, and I think it’s foolish
to think that they are. Mr. Glasser: Yeah, but the general kind of
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 can only be put
forth by someone who has litigated one of those cases. It’s just not what happens. What happens is quite the contrary, what happens
is tremendous judicial reluctance to get involved, because they know that down the road of 5
years, 8 years, 10 years, of an absolute entrapment in a web that there’s no resolution to and
they want to divest themselves of those cases faster than you can imagine. That just is exactly the opposite of the way
you’re suggesting. Once they get into it, something else happens
and what happens I suggest is that they learn about what’s going on in those institutions
that the process that Professor Chayes describes is typical of every one of these institutional
litigation cases. They go on for years precisely because there
is no effective mechanism enforcing it and because the courts are relatively powerless
to enforce it around decrees. And it’s only at the tail end of those processes
that the decrees start to get as intrusive as you suggest and the alternative to that
is no remedy, and the alternative to no remedy is no right. If you concede the problem with respect to
the institutional violations, you’re conceding 90% of the problem. That’s where the judicial intrusion is. That’s where the judges are managing. Mr. Scalia: I have mentioned dress codes,
I have mentioned attacks on referendums, on the open-housing laws, I have mentioned local
funding of schools, I have mentioned bussing, I have mentioned a number of instances. Mr. Glasser: What you’re dealing with in the
nature of what you regard as the judicial outreach into the running of institutions
takes place in the context of the kinds of gross mistreatment that occurs in all these
institutions. If you concede that set of problems away you
are conceding 90% of the problem away and that’s the fact that I think that you’re not
coming to grips with. Mr. Silberman: I’m prepared to concede a point,
although I don’t concede your conclusion. I’m prepared to concede often that the judiciary
starts down the process of extensive regulation of private institutions to the process of
a decree. Mr. Glasser: State institutions. Mr. Silberman: State and sometimes private
too. Mr. Glasser: Universities that receive any
federal money. Mr. Silberman: Yes. Well, but now these are no longer private. But anyway, I mean both private and public. It starts down perhaps with some feeling of
apprehension, trepidation, and some dim recollection that there are supposed to be restraints on
judges doing that. And basically the problem, I would submit
again, is a fundamental kind of judicial arrogance, the kind of arrogance that believes the legal
process or the judiciary can resolve fundamental social problems. And that, therefore, gee, I don’t want to
keep getting further and further and further into this organization, but damn it, I’m not
gonna stop until I get to the root cause. And that takes them, it seems to me, way beyond
the capacity of the judiciary, or, indeed, the tolerance of our society. Mr. Glasser: Well, I’m just suggesting that
anyone who’s been through one of those cases could not recognize your characterization
of the way the judges precede. Mr. Daly: Well, I must say an important and
difficult question was asked, and it’s used up all the time we have. And this concludes another Public Policy Forum
presented by the American Enterprise Institute for Public Policy Research. Mr. Hackes: This Public Policy Forum on the
changing role of the courts has brought to you the views of four experts in the field. It was presented by AEI, the American Enterprise
Institute. It is the aim of AEI to clarify issues of
the day by presenting many viewpoints in the hope that by so doing those who wish to learn
about the decision-making process will benefit from such a free exchange of informed and
enlightened opinion. Announcer: This Public Policy Forum series is created
and supplied to this station as a public service by the American Enterprise Institute, Washington,
D.C. For a transcript of this program send $3.75
to the American Enterprise Institute, 1150 Seventeenth Street, Northwest, Washington,
D.C. 20036.


  1. It's depressing that this conversation from 30 years ago is still not resolved today and is in fact worse than ever before.

  2. Excellent debate, the civility, levity, and intellectual vigor of these men, agree with them or not, is sorely missing in our current political climate.
    I, of course, came into this debate concurring with Mr. Scalia and Mr. Silberman that there is an imperial judiciary but found that Mr. Glasser and Mr. Chayes did a fine job arguing the other side. Mr. Glasser as always (I've seen him on many old episodes of Firing Line) is good at putting forward an emotional argument that pulls on the heartstrings and Mr. Chayes (of whom I had never heard of prior to viewing this video) did a fabulous job at providing historic precedent.

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