It is said the architect was such a perfectionist that he would go to any length to achieve his goal. The marble for the building, with a special exception, was to be quarried in the United States. So exacting were the standards that when an Alabama quarry sent columns of differing quality and veining to Washington the architect immediately had them condemned and returned. And condemned and returned again and again until he got what he wanted. His exception to American marble was the courtroom itself. Only the ivory buff and golden marble from the Montarrenti quarries near Siena, Italy, would be beautiful enough to match his dream for that room. He even met with Mussolini in Rome to see that the Siena quarries sent nothing but the most perfect stone.
Cass Gilbert, the architect, died before his monument was completed, but the result stands for all to see. This week the building he designed opened for business again as the Supreme Court returned for its fall term.
In most times, the court stands apart, by choice and design. It is a temple on the hill, ostensibily removed from the political passions of the moment. So it seemed Monday. Across the Capitol Plaza, the Congress was playing out another of those noisy and untidy democratic scenes where frayed tempers, sleepless legislators, strident words and an emotional issue all came into heated conflict during a filibuster. Down the Avenue, the President was wrestling with his own immediate problems over such things as war and peace in the Mideast and still seeking an agreement with the Russians on limiting the spread of nuclear weapons.
But the court, with its shrine-like air, appeared removed from such dissonant workings of the system. On rare occasions it looms forth in the public mind, and then retreats into the background. The last time I had gone there, more than three years ago, was such a time. Then the court was deliberating over Richard Nixon's fate. Massed in front of the marble steps was a vast and solemn crowd. Some had been waiting patiently since 1 o'clock in the morning, and by midday the long lines twisted around the corner and out of sight.
I'll always remember how the cheer, "Go, U.S.A.," went up from that crowd as the special prosecutor, Leon Jaworski, arrived to argue his case. That, more than anything else, expressed how most people felt about that day and the role of the court.
The same sense of reverence exists even when the great issues are absent. No other building in Washington conveys an air of such simple majesty. It is, as it was supposed to be, different, a place for deliberation and judgment. "SILENCE," a sign commands, as you enter the front doors. The admonition is unnecessary: the few spectators waiting in line in the marble corridors are all properly subdued and awed.
Inside the courtroom, the feeling becomes more pronounced. There's only room for some 200 spectators, and they all wear sober, attentive looks. The room is imposing: the red velvet draperies, the dark red carpeting, the darkly polished maghogany benches, the Montarrenti marble columns, the sculptured marble panels around the top of the room depicting lawgivers of history from Moses and Solomon to Charlemagne and Blackstone, the polished bronze fittings, the soft lighting , the hushed manner of the attendants, all add to the tone.
The justices, sitting around their high bench rocking back and forth in their high-backed black leather defendant to have proper counsel and legal protection against police abuses; the rights of the government to protect society at large by intruding on the rights of the citizens to privacy, in this case over electronic surveillance.
The other things that occur to you are where these men are from, and what their backgrounds indicate. They are, in the main, men of the Midwest. Two are from Minnesota, one each from Wisconsin, Michigan, Colorado. The other three are from Maryland, Virginia and New Jersey. While most Americans have grown up under Democratic rule, this court came to power through the sponsorship of Republicans. Richard Nixon appointed four of them, Dwight Eisenhower two, Gerald Ford one. The two remaining seats were filled John Kennedy and Lyndon Johnson.
Only 14 other men besides Warren Burger have occupied the Chief Justice's seat. Take away the chairs and wearing their black robes of office, are treated with all deference due high priests of the temple. If they get up, their chairs are pulled back for them; when they take their seats again, someone is there to assist in pushing the chair toward the bench.
Listening to these nine men, one of them black, the rest white, you are struck by several things. There's a stilted, antiquarian quality to the discourse: ". . . that statement to which my brother Powell referred" and: ". . . to which my learned colleague here has made allusion." Yet the subjects they are discussing are as old, and as timely, a the republic: the rights of a victim in a rape case, and the rights of the present eight associate justices and you have only 75 other men who held their positions. Marshall, Holmes, Brandeis, Cardozo are not, in a literal sense, so far removed after all.
And there is this: despite the calm deliberative air, the absence of public attenition, the appearance of being above the strife, this court, like all before it, stands at the center of debate over its role and power. Indeed, this court begins its latest term in the midst of renewed controversy about its having usurped power and become a government unto itself.
It's ironic, and probably fitting, that during the days of the Warren court the liberals were praising and the conservatives condemning decisions that revolutionized American society by broadening voting rights and ending public school segregation. Now, it appears, the political pendulum has swung back. Erstwhile liberals, coming out of the Nixon-Vietnam experience, are raising old questions once the province of conservatives.
The latest example of this comes from a book to be published later this month by the Harvard University Press. Raoul Berger, the author, became prominent to the general public during the Nixon impeachment period; long before that he had the reputation as one of the nation's leading judicial scholars. His concern during the impeachment was over the President's claim to executive privilege. Now, he has turned his hard eye on the Supreme Court itself.
He focuses on the Warren Court rulings as they relied on, or interpreted, the 14th Amendment with its famous "due process of law" and equal protection of the laws" clauses.
Berger argues, forcefully, that the court's one-man-lone-vote and desegregation rulings went beyond judicial powers granted by the Constitution. He takes, as I understand him, what we used to call a "strict constructionist's " view. And, he conlcludes:
"The court, it is safe to say, has flouted the will of framers and substituted an interpretation in flat contradiction of the original design . . . When Chief Justice Warren asserted that 'we cannot turn back the clock to 1868,' he in fact rejected the framers' intention as irrelevant. On that premise the entire Constitution merely has such relevance as th COurt chooses to give it. . . . Such conduct impels one to conclude that the Justices are become a law unto themselves."
What we now have in the Supreme COurt, He contends, is "government by judiciary." He also says: "I cannot subscribe to the theory that America needs a savior, whether in the shape of a President or of nine - of times only five - Platonic Guardians."
What matters is not so much Berger's view. What matters is that the court, that temple on the hill, that seemingly remote and removed tribunal, still stands at the center of the issues that touch all our lives. And so something else: as in the beginning, the old questions about court and king, power and abuse, rights and reponsibilities are still being debated freely with vigor and intelligence.
Whatever else the court may be, it is not a case of isolation.