Preview of 1995 Court Term: "Judicial Restraint"

September 27, 1995 12:00 am

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Frank Askin – ACLU Legal Counsel

September 27, 1995

For some time now, the conservative legal movement has waged a concerted campaign to exalt a doctrine it refers to as judicial restraint and to demonize that which it terms “judicial activism.” One of the clearest statements yet of the aims and arguments of that movement showed up at the end of the last Term in a concurring opinion of Justice Clarence Thomas.

In Missouri v. Jenkins, not only did Justice Thomas challenge the underlying rationale of the historic Brown v. Board of Education school desegregation decision, he also alleged that beginning the mid-Fifties, the Supreme Court engaged in a vast usurpation of political power in the name of enforcing constitutional rights.

In Jenkins, a 5-4 Court majority struck down orders approved by two lower federal courts requiring the Kansas City school district to undertake specific remedial actions to advance a long-standing desegregation order.

Although Justice Thomas purported to speak for no one but himself, his concurrence articulated a broad and sweeping rationale not only for the result in the immediate case, but also for a number of other decisions in recent years in which a conservative majority has sharply restricted the authority of federal courts to shape remedies which could effectively ameliorate constitutional violations.

Therefore, we believe it is of great importance to take a careful look at Justice Thomas’ opinion and to expose the serious flaws in the doctrine which he and the radical right for which he speaks would impose upon our constitutional jurisprudence.

Central to Justice Thomas’ attack was the notion that the high court had manipulated ancient principles of equity as practiced by the English courts of chancery to impose its own political judgments on the body politic. He raged over the fact that the Justices, usually under the guidance of Justice William Brennan, had creatively invoked equitable principles developed by Anglo-American courts over many centuries to provide effective remedies for otherwise intractable constitutional violations.

Indeed, it is true that decisions of the Supreme Court beginning in the mid-Fifties did bring about significant changes in American life — most notably the end of official racial segregation in schools and elsewhere; the reapportionment of federal and state legislative bodies to reflect the principle of “one person one vote”; a vast expansion of free speech law which hastened the demise of the repressive McCarthy Era; the reform of medieval penal and mental institutions; the further elevation of the historic constitutional wall designed to separate church and state; the imposition of procedural requirements on government bureaucrats which guaranteed individuals a public hearing before their rights could be seriously impaired.

Justice Thomas insisted that these developments represented a perversion of our constitutional system, and specifically violated notions of separation of powers and states’ rights. As proof, he cited the Federalist Papers, mostly the writings of Alexander Hamilton designed to allay fears that federal equity courts might abuse their discretion and override statutory and common law.

Curiously, in Justice Thomas’ world, the Civil War and the Wartime Amendments do not exist. It is as if constitutional history ended in 1789 and the constitutional revolution of 1865 never occurred. He has conveniently forgotten that this nation fought a bloody war to curb the authority of the states and amended the Constitution to guarantee against future abuses of citizens in the name of states’ rights. It is the 14th Amendment which categorically asserts that: “No state shall … deprive any person of life, liberty or property, without due process of law; nor deny to any person the equal protection of the laws.”

And the separation of powers he so nostalgically years for appears to be nothing more than the power of the legislative and executive branches to ignore the constitutional rights of individuals. Yet, ever since the landmark decision in Marbury v. Madison, it has been the law of this land that it is the job of the judicial branch to assure that the other branches adhere to constitutional restraints upon their exercise of power.

Justice Thomas reinvents not only constitutional history, but also Anglo-American jurisprudence. While he is correct that there was concern by early Americans (as well as English democrats) that free-wheeling equity courts might create and enforce their own legal norms, Justice Thomas has aimed his fire on the ancient and honorable remedial powers of courts of equity to provide effective remedies for the enforcement of legal rights. He is, in fact, engaging in a shell game: he has adopted fair criticisms of the equity courts’ historic abuse of their substantive jurisdiction to attack the modern federal equity courts’ exercise of their remedial powers.

The idea of equity as part of a jurisprudential system is no recent invention. It dates back at least to Aristotle, who referred to it as “justice that goes beyond written law.” Speaking of the need for “rectification of legal justice,” Aristotle wrote in Nichomachean Ethics. “The reason for this is that law is always a general statement, yet there are cases which it is not possible to cover in a general statement …” Ever since Parliament in the 16th Century warned the British Courts of Chancery not to usurp the common law where common law remedies were adequate, our legal traditions have unwaveringly recognized the authority of the equity courts to assert jurisdiction to enforce that law where common law remedies were “inadequate.”

And that, of course, is the source of authority for the modern injunction. Where compensatory damages, the traditional remedy for wrong meted out by law courts were unable to provide full relief, the equity court — or, in recent years, the federal judge sitting as judge of both law and equity — was authorized to require wrongdoers to change their behavior upon threat of jail for contempt. Not that even this remedial power of the Chancellor (or equity judge) has gone unchallenged. Nineteenth Century English critics derided the discretion of the equity courts to enforce legal rights by complaining that the only standard by which to measure its authority was the size of the “chancellor’s foot.”

So in a sense, when Justice Thomas condemns the modern Supreme Court decisions for allowing federal equity judges to shape constitutional remedies that work, he is merely echoing ancient criticisms of well-established Anglo-American remedial law.

But Justice Thomas is dead wrong when he suggests that somehow the modern federal injunction which flourished through the years of the Warren Court represented a perversion of our legal tradition. It was the man who is probably regarded as the most eminent of modern American legal thinkers, onetime Harvard Law School Dean Roscoe Pound, who summed up the relationship between law and equity as follows:

“Equity, after all, is a great supplement to the common law. It deals with everything all over the whole domain of the common law. It is a remedial system, really, a great system of remedies where the common law is not equal to maintaining the legal rights which it developed and which it recognizes. After all, it is not merely that equity follows the law, but it is administering it by different kinds of remedies and within a different atmosphere, you might say, by application of those remedies.

It may be more than coincidental that those comments, summing up Dean Pound’s lifelong study of our legal traditions, were delivered to the 1948 New Jersey Constitutional Convention at which a young lawyer, William J. Brennan Jr., sat as a member of the task force on the judicial article. It was the same William Brennan who the following year was appointed as a Chancery Judge in the New Jersey Court system and several years after that became a Justice of the Supreme Court of the United States.

What is clear is that coincident with the arrival of Justice Brennan, the United States Supreme Court began to apply in earnest, the ancient learnings of Anglo-American equity jurisprudence to better enable the federal courts to carry out their historic responsibility of enforcing the United States Constitution. Frustrated by the slow pace of constitutionally required school desegregation, the Supreme Court invoked the Chancellor’s truncheon and announced that federal trial judges were to assert the authority of courts of equity to see that segregation was dismantled “root and branch.” That mandate led federal judges in other areas to assert the prerogatives of equity courts to see that constitutional principles were effectively enforced. Backed up by the remedial powers of equity, federal courts were enabled for a period to carry out what Justice William O. Douglas once characterized as their primary task: to keep government off the backs of the people.

Justice Thomas clearly has a different view of our constitutional system and the role of the federal courts. And it is perfectly appropriate that his views be heard and that he endeavor to make those views the law of the land. However, we shall not allow him to present those partisan and result-oriented doctrines as the true way or to paint the historic constitutional advances of recent years as a perversion of our legal traditions.

Some clue as to the impact of Justice Thomas’ views on the Court majority may come this term in Lewis v. Casey, an appeal by the State of Arizona from a decision of the 9th Circuit upholding an injunction requiring state prison officials to provide inmates better access to legal materials and assistance.

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