First Among Equals (9 page)
In contrast, Ruth Bader Ginsburg has proved the reliable liberal that President Clinton sought. Her liberal background as a feminist activist lawyer and professor was off-putting to Attorney General Griffin Bell, who during President Carter's tenure passed over then renowned ACLU lawyer Ruth Ginsburg in her quest to become solicitor general. After his departure, Judge Bell's successor, Attorney General Ben Civiletti, was entirely comfortable pushing her nomination as a judge on the court where I was destined to serve, the D.C. circuit court. There, she amassed an enviable record. Bright and energetic, she was an intellectual leader of that high-powered court, and became friendly with Judge Robert Bork and Judge Scalia, her future Supreme Court colleague. Her influence in the circuit court was great, but it has not been matched during her first decade of service on the Supreme Court. Like Stevens and Souter, she is a predictable liberal who has yet to articulate an overarching, unifying approach to constitutional interpretation. And she has not shown the flexibility that has brought together the increasingly powerful axis of Justices O'Connor and Breyer. They, not the liberals, are the dominant day-to-day players, while the most original thinking emanates from the conservative icons. And, as we will see in various settings, none is as original as Clarence Thomas.
The Rights of
“We the People”
S
HOUTING
F
IRE IN
C
ROWDED
T
HEATERS:
T
HE
F
REEDOM OF
S
PEECH
W
ILLIAM
K
UNSTLER HAD DEDICATED HIS LIFE
to defending radical causes. Now the free-speech rights of flag-burners had brought him to the Supreme Court. In a case coming out of Texas, the Court had decided a year earlier that desecrating the flag as part of a political protest was protected “speech” under the First Amendment (Texas v. Johnson [1989]). With the country predictably outraged, Congress promptly passed the Flag Protection Act of 1989, which was now under constitutional challenge in the High Court. Kunstler was the lead lawyer for an assembly of radicals who had engaged in acts of flag desecration. All five were sitting in the rear of the courtroom, waiting for their case, U.S.
v. Eichman
(1990), to be heard by the nine justices. Their legal position was simple. The Court had held in the Texas case that flag desecration was protected expression under the Free Speech Clause, and all the defendants had done was what the flag-burner in
Texas v. Johnson
had managed to accomplish in front of Dallas City Hall—to express their views about U.S. policies (or some political party) by burning or otherwise profaning the flag. This was, they argued, the Texas case all over again.
The courtroom was overflowing with observers anxious to see the argument. This was an important chapter in the Court's history. In
Johnson,
the Court had effectively nullified the flag-desecration statutes of forty-eight states. Would the Court now strike down a law of Congress protecting the flag? Especially one framed in response to
Johnson
that did not contain aspects of the Texas statute that the Court, by a vote of 5-4, had found objectionable? Given the close vote in
Johnson,
all it would take was a single switched vote among the five justices in the majority, and Old Glory would carry the day.
Kunstler didn't seem worried. He was relaxed, bantering away. The marshals were clearing the courtroom after a long ceremony admitting scores of lawyers to membership in the Supreme Court bar. For $100 and a certificate in good standing from one's home state bar, a lawyer with three years’ experience may be admitted to practice before the High Court. Because Congress had placed a provision in the law that required constitutional challenges to be moved to the Supreme Court, bypassing the courts of appeals, a special sitting of the Court had been scheduled. Some clever lawyers thought they could secure great seats by moving a lawyer's admission to the bar. Under this approach, it would “cost” $100 for two seats inside the bar of the Court, a prime location. One of the splendid things about the Court, apart from its majestic marble architecture and dazzling staircases, is that the courtroom seats for members of the Supreme Court bar are near the podium where the advocates stand to make their arguments. These enterprising lawyers figured they would have the best of all worlds. Friends and family of the new admittees sat in the regular seats, ostensibly savoring the happy occasion of the swearing in but in reality attending a historic argument over the meaning of the First Amendment.
But the plans of the insider-lawyers were foiled. Oral arguments are open to the public on a first-come, first-served basis, and outside the Court are two waiting groups. One is for those who want to see the entire argument; the other is for those who want to catch a glimpse— up to three minutes’ worth. On the day U.S.
v. Eichman
was to be heard, the lines were long, and Court administrators decided to make as much room as they could to accommodate the unusually large number of visitors. So immediately upon completion of the bar-admission ceremony, marshals appeared to clear the courtroom. To the lawyers’ chagrin, $100 bought what it always had, not the best seats in the house for the argument.
The Supreme Court thus experienced the equivalent in baseball of a rain delay. The justices, already seated, got up and left as the shepherding of new attendees into the courtroom began. The lawyers set to argue the case, which was the only argument for the day, chatted as the new audience was ushered in. My task, as solicitor general, was to defend the constitutionality of the statute. Kunstler's role, in contrast, was to defend the First Amendment rights of his five clients to desecrate or burn the flag.
Kunstler was friendly, avuncular, joking away. He was a complete natural, I thought, totally without pretense. I had expected haughty condescension, but there was not a trace. His glasses were perched—characteristically for Kunstler—on his forehead. Kunstler's co-counsel asked whether I would like to meet their clients, the flag-burners. Unlike the hapless lawyers in the $100 seats, the five had not been required to get up and leave during the seating reshuffle. I was a little fidgety and welcomed the excuse to walk around. Plus, I was curious.
One in particular I was especially curious to meet: Dred Scott Tyler, a black radical and an artist with a work displayed in a Chicago museum that required the visitor to walk all over the flag. Tyler's work had inflamed then Senator Bob Dole, who took to the Senate floor to denounce this outrage and argue for the new federal law. I asked Kunstler whether he was going with us for the courtesy call on his clients. “Oh, no,” Kunstler replied with a broad smile. “I'm much too conservative for those guys.”
Chuckling about Kunstler's “conservatism,” we made our way back to the flag-burners’ row. They were easily spotted, all dressed in countercultural black. They huddled together quietly in the back row, just in front of the thick curtains draping the rear of the courtroom. Kunstler's co-counsel made a straightforward introduction: “Folks, I'd like you to meet the solicitor general, who's going to be arguing the case for the government this morning.” To my surprise, the flag-burners seemed friendly. Smiles and handshakes went uneventfully, with a particularly broad, friendly smile from Dred Scott Tyler. I reached across the aisle to shake hands. The moment was very cordial. Then we came to the flag-burner sitting closest to the aisle. He kept his arms folded and glared straight ahead, not looking my way or even at his own lawyer. “I don't shake hands with the government,” he declared. The impromptu meet-and-greet session came to an abrupt end.
The grumpy flag-burner had accurately identified the role. The solicitor general was there to represent the government. He had to defend the constitutionality of the law, not an easy task. The Bush administration had strongly supported the goal of protecting the flag but differed with many in Congress over what it would take to accomplish that noble goal (as we saw it). In testimony before Congress, my colleagues in the Justice Department had taken the position that the broad sweep of the Court's opinion in the Texas case meant that
only
a constitutional amendment would suffice to protect the flag. A statute would not be enough. But Congress opted in favor of a statute, and it was now up to the Supreme Court to determine whether the law passed First Amendment muster. For my part, as the solicitor general, I was duty-bound to defend the constitutionality of a law passed by Congress if reasonable arguments could be mounted on its behalf. Inside the SG's office we labeled the operative standard the “straight-face” test. If the lawyer could argue a legal position with a straight face, then as the government's lawyer in the Supreme Court you had a moral and legal duty to do your best to defend the government's legal position. Make the argument to the best of your ability and do so in good faith, even if in your heart you think it's bound to lose. That's the government advocate's duty, as opposed to the obligation of the justices. In contrast, the justices are morally bound to use their independent judgment and come to a view as to what the right answer is under the relevant law, including the Constitution. Their job requires interpretation. In this context, the issue revolved around the term
freedom of speech.
Did this First Amendment freedom encompass actions, such as flag-burning, intended to communicate an idea or opinion? Justice Oliver Wendell Holmes had made a classic statement to the effect that shouting “Fire!” in a crowded theater was not “speech” in the First Amendment sense. This draws a distinction between utterances with no value to society, coupled with potential grave harm, and those, however unpopular, that had some form of “value” in a democratic society. Where did flag-burning fit in the constellation of First Amendment values and concerns?
The justices were now ready, and with new faces in the audience, the advocates resumed their positions at the counsel table. We fell quiet as the justices filed in. As usual, their entrance was quick; with curtains parting suddenly, having entered from three separate staging areas behind the courtroom, the nine justices stood in front of their oversized chairs. Taking their lead from the justices, everyone remained standing as the marshal sounded the traditional oye: “Oye, oye, oye all persons having business before the Supreme Court of the United States are ordered to draw nigh, for the Court is now sitting.” With the marshal's voice filling the courtroom, I surveyed the nine justices. The marshal completed the oye: “God save the United States and this honorable Court.” My mind raced back to a scene a few months earlier at the University of Illinois, where I had participated in a moot court with students arguing a mock case as part of their law-school training. The presiding judge at the law-school festivities was none other than Justice Scalia, one of the members of the five-vote majority in
Texas v. Johnson.
During a question-and-answer session with the students, Justice Scalia spoke to them about the role of the judge, and in particular a judge's moral duty to be intellectually honest, to set aside as fully as humanly possible any prejudices and predilections. His reflection was this: The good judge must try to do the right thing, to reach his judgment dispassionately, as the facts and the law lead, as opposed to playing favorites and going with the judge's own desires or preferences. It was wrong to say, in effect, “I'm sympathetic to the plaintiff, so I'll vote for that side.”
That effort—the challenge to be neutral and open-minded—requires constant self-discipline, and good judges strive to exercise the necessary self-restraint. In this way judges differ from elected officials, who can rightly pursue their own visions of the good and reward their friends and punish (or at least not give aid to) their political enemies. Not so with judges. I was reminded during the University of Illinois festivities of a comment in my early days as an appellate court judge by a more senior judge, Harry Edwards, whom President Carter appointed. “Ken, you know you're really a judge when you vote, in conscience, against the folks who appointed you.” That was exactly right. When the judge honestly votes against the friends who put him on the bench, then the judge is reaching the goal of being genuinely disinterested and dispassionate—as a truly honorable judge should be.
The likelihood of Justice Scalia's changing his view about the constitutionality of flag-burning seemed slim, especially as I recalled his statement to law students in Illinois. “I never slept better than the night I voted in the flag-burning case,” he told the students in the Land of Lincoln. This had come as sobering news to me at the time, looking ahead as I was to the argument in the Dred Scott Tyler case. Justice Scalia was telling the students he knew deep down that he had voted honestly. He had faithfully interpreted the Constitution as he conscientiously saw it, as opposed to reading his personal or political views of what was right and just into the Constitution. Flag-burning was anathema to Justice Scalia the person. As a patriotic citizen, the justice warmly embraced traditional American values of love of country and respect for its great symbols, above all the flag. But his oath was to the law, including the higher law of the Constitution. In Justice Scalia's view, the First Amendment's free-speech provision protects unpopular expressions of opinion. The text of the First Amendment—protecting “the freedom of speech”—protected communications, including actions that conveyed an idea or message. Communications of popular views obviously require little if any protection from the law. It was the unpopular voice, the radical expression of viewpoint, that needed protection against the will of society. It was Dred Scott Tyler, the radical artist, who needed refuge, not political candidates of mainstream parties. In contrast to routine political debate and name-calling, flag-burning was designed to shock and outrage Americans who loved their country.
