Pantechnicon; Archibald Cox

The. There have been times in the past when presidents either actually did or threatened to disregard court degrees and if once presidents did that and got away with it the temptation to do it again would be stronger. We've lived through a very the enormous increase in the power presidency and I'd sort of if I can find anything else to keep myself awake at 4 o'clock when worried well suppose Richard Nixon who did seem to have an imperial view of the presidency refuses to comply with a court order. If he does it in this instance may not do it in.

Breaking and people power. It was motivated Archibald Cox to re-examine the role of the Supreme Court in today's America. With us tonight to discuss the court's handling of such contemporary issues as executive privilege abortion and he will also be commenting on Watergate. Good evening and welcome to the nightly magazine on entertainment the arts and ideas. I'm Eleanor stout. An expert on labor law an author and a professor of law at Harvard Law School. Archibald Cox was appointed by President Kennedy in December of 1968 as the new solicitor general of the United States. A position involving responsibility for all United States government litigation in the Supreme Court. Archibald Cox was born in Plainfield New Jersey 1912. He attended both Harvard College and the law school in

1037. After a year as law clerk for Judge Learned Hand Professor Cox became an associate with the Boston firm of Ropes Gray where he practiced for three years. At the end of World War 2 Professor Cox returned to Harvard Law School as a lecturer. In one thousand forty six he was raised to the rank of Professor becoming one of the youngest men to hold that rank at Harvard during the Korean War. He took a leave of absence from Harvard and became co chairman of the construction industry stabilization Commission which dealt with construction wage regulations when in the wake of the 1952 steel strike Congress abolished the wage stabilization board and created a new one with more limited powers. President Harry Truman appointed Cox to head the new 18 man board after four months in that position. Professor Cox resigned in protest because President Truman overruled the board's decision to lower to a dollar fifty a day the wage increase of a dollar 90 that John or Lois had negotiated with the industry for his coal

miners. And President Truman granted the coal miners the dollar increase. Professor Cox returned to teaching at Harvard. The reputation that Professor Cox had built up in the field of labor law rests in part on his editing of cases on labor law published in the series nine hundred forty eight through 1958. Archibald Cox his latest published writing is a book titled The role of the Supreme Court in American government published by Oxford University Press. And we welcome tonight our featured guest Professor Archibald Cox Professor Cox this is certainly the time of year when many of us attend our New England town meetings and I was very interested in your comment in your book about how you would feel if the Supreme Court voided a vote that had passed in your particular town and you felt less strongly in relation to a Massachusetts law which the Supreme Court might void and you didn't really care there are much in terms of Congress and you pointed

out that certainly government has become very large too large and that the common citizen doesn't feel that they can affect government anymore. What do you think that we can do about that. What can the ordinary citizen do because we're so big now in this country. Well. Very very difficult as a matter of organization. One speculates whether it shouldn't be possible to turn back to towns and neighborhoods really not just huge cities. More responsibility for the character of the neighborhood ranging all the way from its physical character to its tone and environment. Park if one thinks back this being a bicentennial year. The

American Dream of course is not only positive self-government but it posited a large degree of individual responsibility for how things went. And the ideal today would certainly be to find some way despite the enormous numbers of us to increase individual responsibility and I think the beginning would be in terms of the character of the neighborhood even in the big cities. Now it's I haven't got a blueprint for a governmental structure that would do that I must try. But of course the first thing is to have the idae technique sometimes follow on from the ideas where you think of the dilemma between states rights and yet we must function as one country also. And you wonder I suppose it never can be any hard fast rule about states rights and the power of the federal government which should take precedence.

No and as I point out in my book there's been a substantial change over a period of time in the distribution of power between the federal government and the state. But the original division that left a great deal to the states was a way I think not merely of taking account of local diversity but of focusing local and because the states were relatively small and not closely populated. Focusing a degree of personal responsibility. The growth of the large national corporation the interdependence of the economy necessitated some kind of central control in lots of areas. But I think the next challenge is to find those things which can be delegated back down to the neighborhoods. You know maybe simple little things.

Maybe the street cleaning and maintenance and things like that needn't all be run by Mayor beame and City Hall in New York. But the areas in the Bronx Queens could have their own responsibility for doing it and their own opportunities for doing it because there is enormous opportunities for changing the character of the neighborhood. If people feel that they have some hope some power. How much more power however do you feel the Supreme Court should have in the instance. Oh well it's rather a question of how much power they Supreme Court should exercise. I think they go together. The power of the court has depends in large power and upon the degree of support

it has both from the other branches of government from the state from the lawyers the bottom and ultimately from the people. And if they supported it has almost unlimited power. The question is how fine a tension can the guard establish. I think can suggest in my book that unlike the old model and read the consent of the people who was there and only in the New England town meeting or the small state legislature. The today consent can't be expressed that way. It's something far more complicated and made up of a great many more elements and that really the card itself draws on consent and shouldn't be thought of as wholly

authoritarian. And indeed it shapes people's consent and ideas shapes our image of ourselves and our ideals. And this kind of power however can be carried only so far you find the tension very great and some people think too great in the case of things like school buses where at least Boston's South Boston community Shipley has withdrawn its consent and actively resisted the dark because the court can't be expected to back all of just because of organized resistance particularly organized resistance in a particular community. On the other hand if the court got too far

ahead of the whole country the great decrees would be absolutely unaffected. Your book certainly focuses on the balance and it's a very interesting and very intricate balance of the power of the Supreme Court versus versus I suppose but the right of the individual over the collective not us. And you talk about contemporary issues such as school bussing for example. What do you think the rights of the citizen is in relation to the Supreme Court ruling on school busing. Well I think one of the essential self government and a free society. Is the cart creed must be complied with and indeed support without that kind of principle. All the protection for our

individual liberties would become utterly meaningless. After all if you think of the guard as primarily a protector of the liberty of individual citizens against the government and then you remember that the court has as it has got the army. It hasn't got control over appropriations the way Congress does which is a pretty good weapon in the long run today just as it was a shrine to the English kings. The only thing the guard has going for it. Put it colloquially is the power to command. They can send the acquiescence of the community. And in times when it is challenge as President Nixon attempted to challenge the court in the case of the tapes the role and political force

of the community that insists on conformity observance of the guard Creed and I as I explained in the book get somewhat more language used to worry terribly about this during the hunt for the Watergate tapes because there have been times in the past when presidents either actually did or threatened to disregard court grit. And if one's presidents did that and got away with it. The temptation to do it again would be stronger. We've lived through a variant of an enormous increase in the power of the presidency. And I'd sort of if I can find anything else to keep myself awake at 4 o'clock on a worried well suppose Richard Nixon who did seem to have an imperial view of the

presidency refuses to comply with a court order. If he does it in this instance may not do it and breaking into people's houses bugging wiretapping that sort of thing. Where does it stop and you'd sort of say well golly maybe I better not start the country down this road. But then you'd say on the other hand what good is the court or a constitutional tradition if you can call upon it when you need it. If you always run away from that. So you could go round and round the circle. Well it did it did work out. In this instance. Partly I think because of the way the president presented the matter and partly because the country did seem to sense what was really involved and the obligation of any president to comply with the law as

declared by the independent judiciary. But this is related you say compliance with the school buses. Because if you where aware of a sense of the legitimacy of court the Krays of the duty to comply with law. Just because it is law. In one context it's likely to affect it and wear away in others. I think that's why they sort of organized resistance to card degrees is disturbing despite one's understanding of things. Debatable character of the bussing degree. Well you realize what a delicate balance it is then and in terms of the power of the Supreme Court and the fact that they really when it comes right down to it sometimes don't have that much power. And I'm thinking about executive privilege and you point this out

that the court had the power to agree to President Nixon that he turned over the Watergate tapes. But yet they had no power to enforce that that right. Why then do they even have the power to give the decree if there's nothing to back it up there's no cloud behind it. Well because fortunately I think we are very law abiding oriented people at least we always have been. Sometimes one wonders whether those bugs are disintegrating or wave soon. Liberty personal freedom. Depends on a reciprocal recognition of certain obligations and that is that in the areas where law all restraints are necessary we must accept them in conferring with what used to be the

LLB degree of a JD degree at Harvard on the law student. There's a marvelous reference to those wise restraints that make men free. Accepting the restraints is the only thing that makes freedom possible. If people don't accept the policeman's club or the gun as the only think that you certainly talk a lot about the individual rights along the lines of women's rights abortion in your book but you also go into the Pentagon Papers Now how do you relate this elimination to the Supreme Court. The power of the Supreme Court. Well of course one of the major functions of this prim garden is to secure the freedom of the press. And the case of the Pentagon Papers where the government tried to suppress their publication on the ground that the publication would embarrass our

foreign policy and perhaps even the security of our military forces still in Vietnam presented a very key challenge in terms of just where the line should be drawn and I use this is an example particularly in lectures given to the in Britain where the role would have been quite otherwise where the Pentagon Papers could never have been published to show the extent to which the First Amendment does cure freedom of the press in this country. It also there was also an unusual coincidence that it was on the minds of almost everyone who read the newspapers in Britain at that time. There had just been disclosed the fact that during World War Two the British government as a result of the work done by many of the Oxford as a place called

Bletchley and it had throughout the war been reading literally the orders of the Nazi High Command and to its troops. And I suppose that that fact had become known to a newspaper during the war. If it published it of course that tremendous weapon would have been lost to the British government and our government since we were benefiting. I did raise the question well is the freedom of the press cured by the Pentagon Papers limitless. Are either some circumstances in which information which is important to people. For example Churchill according to the newspapers knows that Coventry was going to be bought. But did nothing to take counter-measures because if he had taken countermeasures the Nazis would have known that the code must be

being read and it was figured that there would be more important occasions in which to read the code. Well this was a governmental or political decision one people and free country might wish to debate. Obviously they couldn't debate it if they didn't know the facts. So I was presenting there. You say an example first of the enormous freedom that our press has compared to the British press in other countries despite all their screams. Government restraint but also presenting the tension that there are are some very extreme cases where perhaps there have to be limits. Well when you think about then executive privilege we've been talking about domestic issues but when it involves our involvement on an international level then when is it valid for the president of the United States to say this information is

not to be released this is executive privilege. Well that's that's a very hard question also I wouldn't relate the needs for executive privilege particularly in foreign affairs. I think the central argument for executive privilege is that the president and any of the cabinet members has need to be able to discuss things confidentially where these aides as Cabinet officers if it's the president and to receive their advice facts they want to present the argument with out their fearing that they'll be summoned before a congressional committee and pilloried they're pilloried in the newspapers for the advice that they gave.

So how do you secure that. Well it does involve something that some kind of a privilege. But obviously there have to be limits to it. For example in the case of the Watergate tapes there was reason to believe that the record of these conversations also contained evidence of crime on the part of high government officials possibly leading to the president as well and then received it. So which is very important. The general interest in confidentiality as an encouragement to good formulation of policy or the particular need to dig out and a wrongdoing on the part of high government officials and cleanse the government of them and of that kind of conduct. So someone has to strike a balance in the particular cases

in the case of the Watergate tapes. The court concluded. That where the matter was pregnant to the trial of a criminal case. And I think the same thing would apply to a grand jury investigation. Then it was for the court to strike the balance. The problem we have more often is suppose it is Congress that is trying to get the information the president withholding. Who then is to say how you balance the courts have never been called upon to intervene in that kind of political contest. And it's something that we really need to resolve better I think I would say that. I wouldn't trust the power to force the disclosure of information from the executive simply to a single congressional committee.

Those who are all grumbling about executive privilege now ought to go back. Remember that in the 1950s the days of Joseph McCarthy they were all cheering for executive privilege because people were refusing to give him information he wanted. And I think those abuses and I'd say they were abuses and threatened abuse and show the danger of trusting the power to a single congressional committee. But I would be willing to make the vote the entire Congress dispositive. I must add that I think for the people to sort of give Congress the support it needs to get that power to establish that solution that Congress would have to learn to become a little like a silly little less like a little less like this a little less like an see saw that the Foreign Affairs Committee could be given the kind of information that you referred to and it wouldn't do the damage that is done when it spreads all over Washington via the cocktail circuit and comes out the papers.

Well you wonder also Professor Cox how much rice the CIA and the FBI have to retain information on how much Congress should be and how much the people should be aware of what these two agencies are doing. Well I think it's quite clear that. Things that the kind of thing they are doing should be public information that we did it's quite clear to me that the kind of thing they've been doing should be prohibited by law. So I don't have to know. And if they are acting in violation of the law then certainly we should all know it and it should be dealt with by you know as the British say sacking them firing them with our language and prosecuting those who are really committing crimes. To achieve that.

We do need to let it all hang out. You certainly have been in some very precarious positions I think representing the federal government before the Supreme Court. Well I had had the good fortune to be solicitor general of the United States which is the best legal position in the country and it does bring one before the Supreme Court regularly. And some of the cases that I had occasion to write about were cases that I'd been involved in. He's really also done appearing before the public because of your involvement with marks you know. How far do you think he will carry you out. Indorsement of him do you want to actively campaign for him. Well I have too many commitments to do very much active campaigning. First of all my commitment to my classes. I have the undertaking here

which is very time consuming for court reform and other engagements undertaken before I endorse. As you do. I should do whatever I can to help him. I mean my commitment is a hundred percent in terms of thinking that he's much the best candidate for president and having great admiration and affection for him as and then the question of the will is there the question becomes what are the constraints on my time. It is too bad that 48 hours in a 24 hour day we have been listening to Professor Archibald Cox expert on labor law former solicitor general of the United States special prosecutor in the Watergate case and author of the recently published book by Oxford University Press titled The role of the Supreme Court in American government. We thank you for joining us tonight. Come back every week night at 6:30 on weekends at 5:30

p.m.. This is Elena stout Wishing you a very pleasant good evening. This program has been made possible in part through a grant from the Khoja corporation of Lowell Massachusetts.