I think you should know that from time to time lonely people call me. They want to chat. I think you should know, also, that from time to time the truly paranoid also call. They know of plots and cabals, treacheries and murders that I have to write about before it is too late. I say it is too late and hang up the phone.
In short, I get all sorts of calls from all sorts of people, and my experience is hardly unique. Other journalists, especially columnists, receive the same sort of attention and that is how it should be. The public sees the press as a champion of the underdog, and the press, being modest, would have it no other way. It is, after all, our job.
And in the same vein, it is the job of the Supreme Court also to be the champion of the underdog--to be, in other words, what it actually is: the court of last resort. The court, though, would prefer things to be otherwise. It would like to be the court of last resort for only the serious, substantive cases. It does not want the judicial version of collect calls from cranks. It does not want to hear from people with CIA radios implanted in their teeth. It wants, like Greta Garbo, to be left alone--high, rarified and not overworked.
It is in this spirit that the court recently did a most unusual thing: It fined someone for filing a frivolous appeal. The frivolee in question was one Elmo C. Tatum, a one-time student at the University of Nebraska who had sued the university for race discrimination because it did not provide him what he thought was suitable housing. The lower court threw out the suit. The appeals court did likewise. Tatum was undeterred. He might have read somewhere it was his right to appeal. Without benefit of a lawyer, he kept appealing.
So, okay, this is not exactly Marbury v. Madison. And so, okay, Tatum did not have a legal leg to stand on. And so, okay, it is true, too, that the workload of the Supreme Court has increased dramatically over the last several years and the justices themselves, led by the chief of them all, Warren Burger, have complained that they are working too hard--too hard to do a really good job. We can appreciate how vexing it must be to have to wade through haystacks of silly cases, looking for the momentous needles that are worthy of what is, after all, our most august court.
But there ought to be ways of reducing the caseload without slapping people with what amount to fines for bringing trivial appeals. No one would argue that there are no such things, but the trouble with the word trivial is that it raises the question, "Trivial to whom?" Maybe to the judges, but not, on the face of it, to Tatum.
Not only had Tatum invested his money and time in the case, but not being a lawyer he could hardly be expected to know in a technical sense what "trivial" is. That both the university and the courts considered him a pain in the neck (and, for the university, an expensive one at that) there is no doubt. There is also no doubt that there are lots more like him--many of them in prison, with little more to do than write appeals.
But there is no doubt, either, that these people are the underdogs of society. They clog the courts precisely because they believe in the courts--believe, at minimum, that they will not be punished for using them. They have been encouraged in this belief by a virtual legal revolution--the wonderful way in which the courts, especially the federal ones, have expanded and protected the rights of people who traditionally had no champions, who until relatively recently could not even vote or have a lawyer.
The workload of the courts and suits such as the one brought by Tatum is evidence that there is a downside to all this, and maybe something ought to be done. But there has got to be a better remedy than to institute a policy that would, in the long run, discourage society's underdogs from seeking what should be the right of all Americans--their day in court. If that is to be the effect, then the court was wrong in the Tatum case. They called it frivolous. By their own actions, they made sure it was not.