"The Supreme Court is a Very Great ... Institution," but Today It's "Outrageous": Interview with Anthony Lewis, Part 1

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Adam Eisenberg is a magistrate judge in Seattle, Washington, and a freelance writer. He teaches a graduate level law class at the University of Washington, has written extensively on social issues such as domestic violence and the homeless mentally ill, and is the author of the book "A Different Shade of Blue: How Women Changed the Face of Police Work." Part two of this interview will run next week.

For more than fifty years, Anthony Lewis has been a keen observer of the United States Supreme Court, the First Amendment, and the critical role the press plays as watchdog for our government.

The winner of two Pulitzer Prizes, Mr. Lewis was "politely fired" from his first job as a local news desk editor for the New York Times. He bounced back quickly as a reporter for the Washington Daily News, and his reporting on abuses in the federal loyalty-security program in the McCarthy era earned him his first Pulitzer.

The New York Times promptly re-hired Mr. Lewis. The paper sent him to Harvard Law School on a one-year Nieman Fellowship, and then returned him to Washington, D.C., where he effectively invented modern Supreme Court reportage. Among the many landmark cases he covered was Gideon v. Wainwright; the decision that established state courts must provide lawyers for all indigent criminal defendants. He chronicled the case in his book, Gideon’s Trumpet.

Mr. Lewis served as a regular columnist for the Times op-ed page from 1969-2001, has taught law at Columbia University and Harvard Law School, and has written additional books including Make No Law: The Sullivan Case and the First Amendment, and Freedom for the Thought That We Hate: A Biography of the First Amendment.

Now 85, Mr. Lewis recently sat down at his home in Cambridge, Massachusetts, to discuss the current state of affairs on the Supreme Court with me over the phone.

When you wrote Gideon’s Trumpet in the early 1960s, it was obvious you had a great love for the U. S. Supreme Court.

That is true.

In fact, you wrote about the Court with a romantic sensibility. But much has changed since then. Are you still in love with the Court?

(Laughs) I’m in love with the institution, and that hasn’t changed. I think the Supreme Court is a very great and essential institution for this country. I believe that if we hadn’t had a supreme court and its power written into the Constitution, we would have long since fallen apart as a country because regional and other differences would have been too great to have withstood divisive impacts.

Unlike the liberal Court you covered in the 1960s, the current Court is considered to be conservative, and it has issued some highly controversial decisions, including Bush v. Gore (2000).

I have no difficulty telling you what I think about Bush v. Gore. At the time I didn’t think the Supreme Court could even hear the case because I couldn’t see what the federal question was. I still can’t. The very issue was confined by the Constitution to the states except for a very specific procedure laid out in the Constitution. Literally laid out, not in implication, but in words about what happens if you can’t get a clear decision -- all those provisions about the House voting and the Senate voting, and so on. The resolution process is legislative -- it’s all up to Congress. There’s no role for the courts whatsoever.   So, in my naïveté, I thought the justices would say, “Well, it’s pretty terrible, but it’s not for us.” However, they got the bit in their teeth, and they went and made fools of themselves.

The Supreme Court just took the power to decide the issue with no law at all. So patently with no law at all that the prevailing opinion, Chief Justice Rehnquist’s opinion, said “Oh, you can’t ever cite this case for anything from now on, this is a unique case.” You can’t cite an opinion of the Supreme Court? It’s ridiculous. Why couldn’t’ you cite it? Because there’s no law in it -- it’s just, we like George Bush better than Al Gore.  

How do you feel about Citizens United v. Federal Elections Commission (2010), in which the Court overturned laws designed to control corporation spending in political campaigns?

That’s a stellar example of the Supreme Court as it is today in its outrageous disregard for their procedure, for precedent, for common sense. I’m very familiar with the case. The Court held that corporations have a First Amendment right to give money to political campaigns in the same way that individuals can. In doing so, it overruled a hundred years of decisions and statutes that had treated unions and corporations as something very different from individuals and restricted their spending.

Now, not only was it overruling precedent, but when the case came to the Supreme Court it didn’t even raise that question. That is, when the losers in the appeals court -- the court underneath the Supreme Court -- came to the Supreme Court, they had to petition and ask to be heard. In their petition, they didn’t raise the argument that corporations should be allowed to spend because they had the same First Amendment rights as individuals. The Court heard arguments on the case and then asked the parties to argue that question. In other words, the Court itself raised the question that it then decided. To my way of thinking, that’s outrageous because the whole notion of courts -- any court -- is that they sit passively waiting for people to bring problems to them. They don’t make up problems and decide them, and they didn't -- at least not that I’ve ever heard of -- until this case.   

What about the recent decisions that have interpreted the Second Amendment to guarantee an individual person’s right to bear arms?

Well, there again, the same five-person majority overruled or ignored -- probably ignored is closer -- many years of decisions which assumed the opposite. I wouldn’t have done that. I have to say the Second Amendment is indeed very murky and badly worded; it’s hard to say what it means. So, if you’re arguing history, really you can argue either way, and I wasn’t deeply moved by that. But the common sense of the thing tells you that, in our twenty-first-century society, legislatures should have power to lay down rules for gun ownership. Fifty years ago nobody would have dreamt of deciding such an issue the way the Supreme Court decided it. 

Now, we don’t yet know the end of the story because Justice Scalia said in his opinion, “This doesn’t mean that everyone can carry a gun, that felons and feeble-minded people can carry guns. Those matters can still be legislated by the states and cities, and if there’s some objection to them, we’ll consider that when it comes up.” So there’s some room for legislative control, but certainly the enthusiasm for it has been dampened.

Another decision you’ve been critical of is Republican Party of Minnesota v. White (2002) in which the Court weighed in on the election of state judges. Why?

I think it’s an example of overreaching in the name of the First Amendment. Nobody can be fonder of the First Amendment than I, but everything has its natural limits, and to my way of thinking this decision transgressed those limits. Let me take a minute to explain why.

The selection of state judges has been a matter of controversy for one hundred fifty years. But there are two things at stake here it. One is the idea that judges should be separate from the whole political process. That is why we appoint them and give them long terms or appoint them for life as we do in the federal system in the United States. That method of no elections has been and remains the way of selecting judges in every country in the world that we would regard as an advanced democracy. The United States is the outlier in the world league by having elections of state judges.

The other idea is the desire for popular sovereignty, for the people to elect judges. The idea of electing judges came about, starting in the mid-ninteenth century, as a populist theme, sounding a bit like Newt Gingrich -- we can’t have all these appointed judges telling us what to do, we want to elect them.

Minnesota made a provision for elections but with some restrictions on the nature of the election, in particular, the “announce clause” which forbid candidates for judgeships from announcing their views on issues that might come before the courts when they’re up for election. That idea and similar ones in many other states, is a way of trying to satisfy both urges, both ideas. Separation of the judgeships from ordinary politics -- if you have an election, it’s a restricted election.

Along comes the Supreme Court of the United States a century later saying, "No, no, no, if you have an election it must be exactly the same as if you elect a senator or a mayor or a president." Why does it have to be exactly the same? Where does it say that in the Constitution? I just don’t get it.

What’s amazing about the decision is the fact that every time a Supreme Court nominee sits before the Senate Judiciary Committee they routinely refuse to answer questions about how they might rule on a potential issue.

(Laughs) Yes, that’s right. They bob and weave and don’t answer the question. And the result is, at that level in our politic, we have come to a completely ludicrous view of Supreme Court appointments in which the people go there and solemnly swear that they have no ideas, and that they’ve never had a thought about anything. And they promise to be very good and do practically nothing, and they certainly would never be activist, and they would always simply interpret the law laid down by Congress.  It’s a joke, but that’s the way it is.

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