Court and Constitution, part 1

from the university of texas at austin the longhorn radio network presents the court and the constitution essays on the united states constitution and its guardian the supreme court these essays are prepared and presented by charles allen right holder of the charles t mccormick professor of law at ut austin professor rights studies of the court in the constitution have long been distinguished and impressive for their incisiveness and insight professor right the swelling in and generally sell los paolo william rehnquist as associate justices of the united states supreme court there's an important moment in history a record because in existence for a hundred maybe two years in that tom allman it meant circle prior to the justices how rehnquist has added significance to the fact two justices are taking their seats because the memory placing justices you go what can john in harlem where judges a great ability and intellectual power to be regarded as among the

outstanding member of the supreme court has ever had this will not be easy shoes to fill but the new justices brief on all occasions to the core was ultimately lawyers to the united states and was recognized as such by his colleagues want a professional elected him president of the american bar association we were younger everyone has known and recognized that he is a brilliant what was also very well retired supreme court justice or a day in history class section of the branches of learning just as post confirmed with only one dissenting vote although there was more substantial opposition of the confirmation of justice rehnquist was because some senators for his philosophy was too conservative not because the governors building a moron will be significant about justices power increases the competition may make the work of the supreme court the way they vote the quality of their opinions for the moment however the most significant thing is the simple fact of two new justices

are there since this term the court opened in october has been handicapping at work because only seven of its nine seats would fail now for the first time this term a full court is available that makes a great difference although the statute provided only six justices are necessary to constitute a quorum has always undesirable to have cases heard by what's the full bench shortly before christmas for example the court reversed two convictions of persons who had been found were violated state of senator laws in each case the vote was forty three undoubtedly the result was very satisfied defendants in the two cases but it cannot go much satisfaction to anyone else the constitutional limits on the power of the states to bomb senator strongly murky of these two cases worth the supreme court's considering at all it was only guitar for what the warriors of mr decisions by vote for three point four no so it's quite

possible that some more cases to come before the court a month later with nine justices seven result would have been the other was by a vote of five to four recorded before reports perhaps the most dramatic of these are four cases in which persons who have been condemned to death one that would persuade the court that family is cruel unusual punishment and therefore is prohibited by the amendment of the constitution some six hundred and fifty persons and that goes around the country have had their execution stage awaiting the outcome of these cases a decision of this important should not be made by less than a majority of them for carr the death sentence cases were originally scheduled to be argued last october when justices wackenhut retired the arguments in these cases and other important cases of the politically or indefinitely postponed now or is the last full court these

cases again been set for oregon inevitably them because i don't want to mark on malta waited its new members the cases it has slowed and those seem to be what's difficult or less what would've on the court but the supreme court gets no easier in important cases among the cases already ordered it necessarily must be decided by seven men core are such matters is whether a state may prohibit abortions and whether a state university may control commercial solicitations around campus to say nothing of a number of cases in which the court must decide on the meaning of the important federal statutes there was no real alternative except for the court to hear those cases even though or shorthand you cannot close down cherry awaiting the appointment confirmation of injustices but it can perform more efficiently more effectively ordered is at full strength as now at what it is but was the court and the constitution

essays on the american constitution and the supreme court prepared and presented by charles allen wright of the university of texas at austin law faculty this program was produced and distributed by communication center the university of texas at austin from the university of texas at austin long warned radio network presents the court and the constitution essays on the united states constitution and its guardian the supreme court these essays are prepared and presented by charles allen right holder of the charles t mccormick professor of law at ut austin professor rights studies of the court and the constitution have long been distinguished and impressive for their incisiveness and insight professor right ms reichardt one person has been convicted of a crime or lost a civil suit in the lower courts are going to say i'm going to take it all the way to the supreme court

in most cases this isn't idle boast the chances of actually getting a case the united states supreme court extremely small in florida supreme court of power if it chooses to your every case that comes up more federal courts that is not even the theoretical power cases that were caught in the state courts can he only those cases are arising states and it's the highest a court has based its decision on the federal constitution or laws these are very small portion of all the cases are in state courts even a fun happy little who wants to take his case for the way that the supreme court has a case that the court has power to hear the chances that the court will hear remain poor it's only right that anyone has a right to have his case heard by the supreme court even among those cases the court can hear it or know i have discretion to decide which will determine for itself and the time that ended in june nineteen seventy one for example forty two hundred and twelve cases were brought to court in an argument one hundred and fifty

one agrees in nearly two hundred other cases the court review the lower court decision but not actually hear argument well and more than three thousand cases the court's decision lower courts stand without giving any reason for deciding for itself what the lower court had done was white rule the system simply could not work of the supreme court did not have power to decide which sell what pieces of law here it would not be physically possible for any court consider four thousand or more cases of the year because it must choose a comparative handful cases from the flub that descend upon the court cannot or at least not concern itself particular with other justices and on a particular case it was trying to pick up those cases that are gentle importance in which a decision from the supreme court will provide useful guidance for the lower state and federal courts and some workers as kind of them it hopes will petition asking the court reviewed gates you can leave the corps could believe or what was bungalow was wrong

about what's so should not be enough to boost the court to grant review and what you can show also that the lower courts have been wrong on some general proposition right as we all recall is not always wanted to limited itself and this was through some cases particularly involving injuries were like tissue under federal statutes which is difficult to say what the court heard the case except the top workmanship of them a while to recover through your circumstances of his case is of exceptions our usual practice of your only cases of general forbes constellations a point for your quiche it may be the case presents an important issue for the war but the dusseault intermingled with other issues it would be difficult to give a clear decision on important question of all or it may be at the record what happened what our courts is murky and the court cannot be confident that has a

sufficient factual basis to render informed decision in cases like this are probably refuse review in some instances the process of seeking supreme court review has almost a while every aspect for example the well miranda decision in nineteen sixty six in which the court laid down rules and how pleased i questioned commissions they arrest actually covered for cases the court heard together because these four cases out of more than one hundred raids in the same issue that were pending before the top one writer suggested that the court chose to protect or forty and because lawyers in those cases welcome to the court mccourt felt confident that it would be helpful in humans of high quality that seems like a perfectly sensible reason but not one will provide much comfort to the one hundred other prisoners without their convictions were allowed to stand while the convictions were reversed in the four cases chosen for review are unhappy with again may take his case or whether the

supreme court but you better not count on a lot was the court and the constitution essays on the american constitution and the supreme court prepared and presented by charles allen wright of the university of texas at austin law faculty this program was produced and distributed by communication center university of texas at austin the from the university of texas at austin the longhorn radio network presents the court and the constitution essays on the united states constitution and its guardian the supreme court these essays are prepared and presented by charles allen right holder of the charles t mccormick professor of law at ut austin professor rights studies of the court and the constitution have long been distinguished and impressive for their incisiveness and insight professor right

what happens in the courts israel its significance to the average citizen most people live a lifetime without ever been a party to a lawsuit changes in the violence the law are carefully studied by lawyers for no we're not reported in the press center of little interest of those were not lawyers the supreme court of united states however is very different news of its decisions makes the front pages of the paper's there's intense public and christian who was on the court in battles over the confirmation of nominees to the court have been among the most dramatic domestic controversies of recent years this difference between the supreme court and other courts state and federal is because of the difference in the kinds of cases that were heard the principal business of the lower courts as resolving disputes between parties to a lawsuit which of the drivers was at fault in an automobile accident is a wife and terrible divorce from her husband has a particular contract failed to do what it promised is a person accused of crime guilty the

impact of decisions in cases like these is almost entirely on the parties to the suit what the supreme court does frequently affect the life of every situation i went on the court it was principal concerned with preserving private disputes and in those days it was not much notice by the public today the supreme court rarely hears these private matters and started as concerned almost exclusively with interpreting the constitution and laws of the united states the grid cells term of the impact on the social structure but the issues it deals with the phrase is an accurate one because the entire fabric of life in america to shake to a significant extent of what the supreme court sought the most obvious dramatic example of course was the decision in nineteen fifty four the racial segregation is unconstitutional that decision has caused a social revolution or the work done specifically was segregation of negroes were public

schools it's principals have been extended while minority groups and all forms of state approves segregation it changed the way of life in the south of russia the country also was different because of that congress and state legislatures have gone beyond the constitutional requirements announced in nineteen fifty four decision and a banned many forms of private discrimination but it is quite unlikely that they would have done so with the supreme court not let the word there are many other examples that are well known to the public even if less obvious than segregation cases bible reading and prior going from the public schools because the supreme court has said they are unconstitutional the makeup of state legislatures is very different because of reapportionment decisions person's accused of a crime are warned of their constitutional rights before the police questioned on and are given a lawyer at their trial because the supreme court has said that the constitution requires these lines

the kinds of books and magazines available on newsstands has changed because of the restrictive view the supreme court has heard in recent years about attempts to ban on augur for decisions of this kind were and are highly controversial the very fact that there is public controversy about supreme court decision showed that matter a great deal to those people rarely get much aroused about something that has no impact on them there are many other decisions not well known to the public and not a matter for public controversy there are no less significant and their effect on all those decisions that the supreme court makes interpret an antitrust laws provide the guidelines for american business and ultimately reflected in the prices we pay in the store's decisions are what government must do for its citizens affect our taxes decisions in trumpeting acts of congress intended to protect the environment will have an important effect on the air we breathe the water we drink and the extent to which we preserve our parks and our wilderness

it would be a mistake to overestimate the importance of the supreme court congress makes the supreme court does not have the power of the purse or as commander in chief of armed forces were nevertheless cannot ignore the importance of the court's role in interpreting the constitution the walls lives of all this are touched by the decisions the court next but was the court and the constitution essays on the american constitution and the supreme court prepared and presented by charles allen wright of the university of texas at austin law faculty this program was produced and distributed by communication center the university of texas at austin the longhorn radio network presents the court and the constitution essays on the united states constitution and the supreme court prepared and presented by charles allen write an

authority on constitutional law and the federal courts professor write is a member of the university of texas at austin law faculty suppose the congress would pass a law declaring that some particular religious group as the official church of the united states and that appropriates billions of dollars collected from taxes to support the work of that church we can be sure that allowed immediately challenged in the courts the way to the supreme court and the supreme court would strike down the laws unconstitutional today we can be sure of all the us for many years that was about whether the supreme court could do anything the situation of the skull there is no doubt but the law does god would be unconstitutional the first amendment begins with the words congress shall make no law respecting an establishment of religion although the meaning of those words is often because of controversy it is wholly clear that what i've described is exactly the

kind of establishment of religion that the constitution prohibits what is less clear is that the supreme court has any power to hold an act of congress unconstitutional the constitution provides quite specifically the judges should be bound by the constitution itself and by the laws of the united states anything in the constitution or laws of any state to the contrary notwithstanding buses explicit that the courts have the power of judicial review as it is called of the constitutionality of staples there is no similar provision for judicial review of acts of congress in the history of the drafting of the constitution as sufficiently ambiguous but no one can say with certainty whether the framers intended to give this power to the courts it may be for obvious of the judges must have this power will go into the first amendment guarantee of congress could pass a loss publishing a particular religion and the courts were powerless to intervene one answer

would be the congressman required to take an oath to support the constitution of the limitations imposed by the first amendment and other provisions of the constitution are directed to the conscience of congress are not being forced by the courts and the example i gave congress would have deported from the mandate of the first amendment the cases of atlanta not a rise in the real world i can think of no instance in which congress has passed the law so pete lee unconstitutional reasonable men could not defended as being consistent with the constitution a good argument to be made that in these difficult and doubtful cases in which it's hard to say what the constitution forbids are permits it should be for members of the congress what about public to the saut the constitution means rather than for judges appointed for life to make this decision there are good reasons why the constitutional convention might have explicitly provided for judicial review of state laws or making no provision for judicial review of fed rules the late justice oliver wendell

holmes once said i do not think the united states could come to an end if we lost our power to declare an act of congress will and i do think the union will be imperiled if we could not make that declaration as to the laws of the several states you that the supreme court can decide whether federal laws are unconstitutional was first announced by chief justice john marshall for the supreme court meeting for it in the case of marbury v madison president thomas jefferson did not fight the court had the power claimed in the marberry case but the actual resolve the case itself was favorable jefferson administration and there was no way for president jefferson to challenge the holding about the power of judicial review the supreme court nominee next few shows the pardon a significant water until the dred scott case of eighteen fifty seven but on a whole generation of lawyers have been brought up reading them arbor a decision about money for usurpation of eighteen for it was regarded as natural commonplace making fifty seven and in subsequent years

there are now nearly one hundred cases in which the supreme court has struck down an act of congress at the more than thirty years since anyone has seriously questioned whether the court as the sparklers claimed for itself the justices the lesson senators representatives are sworn to support the constitution each justice must decide for himself whether a particular laws consistent with the constitution and cannot good conscience a ploy well that he thinks unconstitutional bill because congress was of a different view the supreme court has the power of judicial review because the american people have followed a good thing to allow the courts rather than congress to have the final saw on what we the people not only ordained an established our constitution that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this

program was produced and distributed by communication center university of texas at austin this is the long war and radio network fb the longhorn radio network presents the court and the constitution essays on the united states constitution and the supreme court prepared and presented by charles allen write an authority on constitutional law and the federal courts professor write is a member of the university of texas at austin law faculty anyone who has even a casual familiar with the work of the united states supreme court as well from ponte on the court changes its smaller than what the constitution of the united states means on many occasions the court has overruled a song earlier decisions construe in the constitution it is very well settled that the court is not bound by its decisions on constitutional matters as long ago as eighteen forty

nine chief justice roger be tom i was generally regarded by history as a conservative said that the court's opinion upon the construction of the constitution is always open the discussion when it is supposed to open founded an hour and much later time justice louis d brandeis said that on most matters is more important that the applicable rule where be subtle and not be settled right but that this is not true in constitutional matters or the core lessons of experience and the force of better reason changes in constitutional interpretation may occur because new justices come to the court or because justices already there changed the mormons a striking instance of a combination of these two factors involved the requirement for students in public schools the flock the constitutionality of that requirement was before the court nineteen forty and the requirement was upheld by a vote of eight law that was a very decisive vote and seemed to settle the matter but the same issue came

back to the court's nineteen forty four and the stomach or over sixty three held that it is unconstitutional to require children to pledge allegiance to the flaws two other justices would vote to uphold the requirement nineteen forty have left the court and the justices who succeeded them did not share their view of the matter but this would not have been enough to change the results except that three of the justices who were part of the majority in nineteen forty and simply changed their margins whatever the merits of the flights were controversially it seems appropriate that members of the court and become persuaded they have misread the constitution be free to change them on rather than being bound by a foolish consistency and more difficult questions whether to be said that the constitution itself has changed whether decision can be overruled that was perfectly proper when it came down because of change circumstances some provisions of the constitution are very general i can only be read in light of the circumstances in which they are to be applauded the commerce clause is a good example of those and i will

discuss it on the waiver program the hardest cases are those in which we know precisely what the framers of the constitution intended effect was not responsive to the needs of the present day the framers were particular concern because in some state legislatures have passed laws to help the persons who were unable to pay their debts they included in the constitutional provision that no state should make any law and pairing the obligation of contracts to prevent loss of that kind in the early years this provision was strictly applause but a classic test came in nineteen thirty four involving the validity of law in minnesota hadn't acted in the depths of the great depression during person's at a time to make payments on mortgages on their property for members of the court said the constitution does not mean one thing at one time in an entirely different from another time and that the provisions of the constitution must be apparent when they pitch as well as when they come they were struck down the minnesota law the

majority however speaking to chief justice charles evans hughes denied that the great cause of the constitution must be confined to the interpretation what the framers with the conditions in outlook of their time would've placed the bomb they thought the case must be considered in the light of our national experience and this company for finding some balance between private property rights in the public welfare on this basis they upheld the minnesota law the view of the majority in the minnesota case is the view of the general has prevailed in the supreme court but there are those who continue to think of changes of this kind have to be made the constitution should be amended rather than the judge's substitute in their own views for those that were intended when the constitution was adopted the debate on this point storm goes on that was another essay in the series the court and the constitution prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed

by communication center university of texas at austin this is the long war and radio network fb lauren radio network presents the court and the constitution essays on the united states constitution and the supreme court prepared and presented by charles allen write an authority on constitutional law and the federal courts professor write is a member of the university of texas at austin law faculty we've heard a good deal in the last few years about strict constructionist president nixon has said on several occasions that it was his shoes madam women for vacancies in the united states supreme court who will fit that description there's a problem however knowing what it is that the term scrubs but the hearings on the ill fated nomination of judge cummings were for the supreme court one of the members of the judiciary committee said when we've been hearing for months years to what we need on the supreme court is a strict constructionist i

was that i take it you are one essential judge haynes were served senator i've been set to be yuan i don't know i don't know rodeo spicer we do not know that i am on the term has not been defined me by anyone sir the term did have a meeting in the early days of the republic there was controversy at that time about how the portions of the constitution delegating power to the federal government should be construed the constitution grants certain powers to the federal government and says the congressman also made all laws which shall be necessary improper for carrying out the power specifically given the federal government there were those who thought the necessary improper clause should be read marilyn strictly and that congress could do only those things that were absolutely necessary to execute the powers given this year was rejected an eighteen nineteen a famous opinion by chief justice john marshall and the controversy was for all practical purposes and that there's a general agreement some slept on the necessary improper clause

does not restrict were construed and that congress can choose any appropriate means to reach in and provided for by the constitution president nixon has pointedly justice felix frankfurter is an example of what he means by a strict constructions justice frankfurter was an outstanding judge that will be difficult to say that he was the judge who strictly construed the words of the constitution take for example a key provision of the first amendment congress shall make no law abridging the freedom of speech or of the press frankfurt is great opponent within the court really just as usual black and system that should be read literally no law means no law he said justice frankfurter on the other hand insisted that the freedoms of speech of the press provided for by the first amendment must be balanced against other governmental interest and the right to speak freely must sometimes yield to the interest of the government to preserve a national security interest of the city and preventing noise of the street and other members of this kind

of the two were surely justice blackmun justice frankfurter who is the strict constructionist what the president probably has mourned when he speaks of a strict constructionist as an attitude that has also been described as judicial self restraint or judicial conservatives judges with this attitude are slow to find some new and suspected meeting in the familiar words of a constitutional provision they recognize the courts are not the only agency of government must be assumed to have capacity to govern but avoid the constant temptation disposed to what seems to them good is therefore constitutional and what seems to them bad is therefore unconstitutional traditional conservatism cannot be equated with political conservatism in the nineteen thirties there were four members of the court popularly known as the four horsemen who were extremely conservative politically originally voted to strike down new deal legislation as well state laws that sought to improve the welfare of the average citizen at the expense of corporations that point no specific language of the constitution

requiring the results they reached and instead seem to read their own views what is politically desirable into some very general clause of the constitution but the temptation to do this is constant and has its allure for justices from every part of the political spectrum a few years ago the court had before at a connecticut law making it a crime to use contraceptives the majority found that won't be unconstitutional but in doing so they refer to six different amendments to the constitution without oversight which of those if and it was violent about connecticut law only justices black and stuart the senate they agree that this was an uncommonly silly law but different another business to decide whether a war zone was since they could not find war violated united states constitution they voted to uphold it this recognition that the court is not a super legislature and the justices are like the constitution rather than their own views or desirable pulse lee is the attitude that should be sought whatever it may be called that was another essay in the series the court and the constitution

prepared and presented by charles allen right of the ut austin law faculty this program was produced and distributed by communication center the university of texas at austin this is the long war and radio network the pope has been