After nearly three years as a reporter at the Supreme Court, I have a notion of it as a Mighty Wurlitzer; a great pipe organ of governmental power played by nine men in black robes.
Particularly at the peak of the concert season in early summer, the organists can shake the shrine. They rule the death penalty permissible and certain discrimination impermissible. They divine that a tiny fetus is not a "person" while a giant corporation is.
Each justice has been appointed for life -- by a president allowed to serve only two four-year elected terms. The oldest and most senior of the current nine, William J Brennan Jr., 73, has been on the court 22 1/2 years. Two are 72 and two 71. The youngest, William H. Rehnquist, 55, and the most junior, John Paul Stevens, 59, lilely will still be at the console in the adulthood of people yet to be born.
The court has the awesome power -- matched by high-tribunals in few if any other nations -- to invalidate decisions of the other, elected branches of government.
In some times past -- in the early New Deal years, for example, and more recently, under the "activist" Chief Justice Earl Warren -- the court was perhaps the dominant branch of the government.
But today, in the 11th year of the stewardship of Chief Justice Warren E. Burger, the court is contenting itself with a lesser role -- refereeing, reacting, not taking the social initiative as in other eras.
No matter. Perhaps because of this, perhaps in spite of it, according to polls, the public esteems the court more than the other institutions of government. The disillusionments induced by Vietnam, Watergate and assorted crises and scandals seem to have passed it by.
Its pillared marble building, stunning when the evening sun illuminates the great front doors an the engraved inscription over them, "Equal justice under law," is endlessly photographed by visitors.
Public reverence for the court survives even when it ceases to speak in majestic tones and turns more into nine men squabbling. The justices are routinely less than adulatory toward each other, even in their written opinions. A case in point was a 5-to-4 decision last March that the National Labor Relations Act doesn't cover lay teachers in church-operated schools.
In a dissenting opinion, Brennan accused the majority, led by Burger, not only of being "plainly wrong in light of the act's language, its legislative history nd this court's precedents," but also of having "seemingly invented" a statutory construction "just for the purpose of deciding this case." No majesty there. Three months months later, the court, in the famed Brian Weber Ruling held that the Civil Rights Act of 1964 allowed an employer and a union without histories of proved discrimination to adopt quotas to overcome "conspicuous" racial imblanace in training and promotion programs.
Brennan wrote the majority opinion. Now it was Burger's turn to go after him for achieving a "good result" with "judicially unauthorized or intellectually dishonest means . . ."
Even harsh language like this seems to make no perceptible difference -- outwardly. Burger and Brennan continue to sit amiably beside each other in the court's elegant chamber. Neither talks to reporters about the other. The public's awe of the court seems unaffected.
For months, however, the almost-palpable feeling around the court building has been that a soon-to-be published book. "The Brethren," may turn the public toward disenchantment.
The authors, Bob Woodward and Scott Armstrong, bare inner workings of the court in the first eight terms of the Burger era, which began in 1969.
If their unprecedented investigative reporting in fact broadens public disillusionment with the White House and Capitol Hill to the court, it's hard not to wonder about the consequences.
Some see court secrecy as essential to its acceptance by the public. "There can be no prestige without mystery," Charles deGaulle said. "We live by symbols," said the great Justice Oliver Wendell Holmes.
Others say the truth should be brought out and adjusted to. "Planned obscurantism by an intellectual elite cannot be justified," says constitutional scholar Arthur S. Miller. He acknowledges a need for symbols but finds in it "no argument for deliberate obfuscation."
The lights by which constitutional cases are decided are shed by the Constitution itself. Switched on in the 18th century, they illuminate the intent of the Framers, thus guiding the court to correct dispositions of the problems of the 20th Century.
Such is the conventional wisdom. It's a pretense, as Miller put it, "That constitutional decisions are babies delivered by judicial storks." Richard M. Nixon perpetuated the notion when, before making the first of his four appointments to the court, he said, "I happen to believe that the Constitution should be strictly interpreted."
Only two years ago, in a much-praised book, Harvard law Prof. Raoul Berger expressed a similar idea about the 14th Amendment. It says in part: ". . . nor shall any state deprive a person of life, liberty, or property, without due process of law; nor deny any person within aits jurisdiction the equal protection of the laws."
Congress approved the amendment to protect the richts of the newly freed slaves in the states of the Confederacy. Prof. Burger urges that it be strictly construed in the light of that intent. Instead, the court has extended its protection to a wide variety of minorities and to criminal cases.
Strikingly, one of the strongest criticisms of strict construction came last summer from one of Nixon's appointees, Justice Lewis F. Powell Jr. in an extraordinary interview with a Kenyon College political scientist, he offered as a case in point the 1970 court decision lowering the voting age in federal elections to 18:
"There was nothing in the Constitution that could have suggested that result. In the simplest of terms, the court decided that when young people were being drafted and asked to go to war and risk their lives at age 18, the time had come to extend to them the right to participate as citizens in the decisions that affected them so seriously."
Then, repudiating views such as Prof. Berger's, Powell said: "The court cannot rely solely on what the founding fathers intended, or even on congressional intent when the 14th Amendment was adopted. Conditions change as our country matures. . ." Furthermore, he said, the changes wrought by time must be adapted to by the constitution, which is not a mummified scroll, but "a sort of living political organism."
Only 20 years after Congress had approved the 14th Amendment, the court -- composed of men situated to know that the legislative intent had been only to shield the most helpless flesh-and-blood, construed the amendment so as to make the corporation a "person." As a result, from 1886 until relatively recent times, that amendment has been of greater use to paper persons than to real ones.
This was an astounding, radically loose construction of congressional intent. Yet, the longer I marinated at the court, the less persuaded I was that strict construction was a desirable or even feasible philosophy.
Justice Powell, in reinforcing my doubts, spoke in an old tradition -- one rarely noted by those who use strict construction as a form of flag-waving. Chief Justice Marshall, in 1819, and Justice Holmes, in 1920, had said pretty much the same thing.
Another point bears on this: the potential of labels such as "conservative" and "liberal" to mislead. Strict construction is an idea that purported conservatives have tried to appropriate for themselves, but whether it conserves the Constitution, as a viable charter, is doubtful.
As for the Bill of Rights, the conservatives, again in the sense of conserving, have been mainly the so-called liberals, Justices Brennan and Thurgood Marshall. The liberals, in the sense of bending the Bill of Rights, have been the so-called conservatives, principally Burger and Rehnquist.
Another myth about the court is that it doesn't make laws: only legislatures do. As Chief Justice Marshall put it in 1803, judges merely "found" and "declared" it.
In a visit to the court, a Stoughton, Mass., girl, Colleen Condangelo, found to the contrary and so declared in these lines of a poem published in, of all places, the current Docket Sheet, a publication by and for court employes:
The guide started speaking
He told about all
The laws that were made
Right here in this hall.
Actually, members of the court have admitted as much. Justice Byron R. White did so in a dissent in the 1966 Miranda rights case. More recently, Justice Powell did so in the same interview in which he rejected strict constructionism.
The court's independence gives it "a freedom to make decisions that perhaps are necessary for our society, decisions that the legislature is reluctant to make," Powell said.
The classic case that comes to mind is Brown vs. Board of Education . The Congress had adequate authority under the Constitution to enact the sort of legislation that has been adopted since Brown. But it was the Supreme Court that finally decided in 1954 that segregation in our society must come to an end."
Earlier this year, Powell accused Congress of failing in another duty: to write laws so as to make their intent clear, rather than to obfuscate them deliberately so as to buck difficult political dicisions to the court. He made -- and documented -- the accusation in a dissenting opinion in a case in which the majority held that Congress had implied -- not stated -- that a federally funded educational institution could be sued for alleged sex descrimination by a rejected applicant for admission.
The decisions made in the darkness of the Constitution or of the intent of Congress are no less binding for that. "We are final not because we are infallible, but we are infallible only because we are final," the late Justice Robert H. Jackson said.
This raises a troubling question: what constraints on the justices are there other than their own inner lights? What is there to stop them from letting these lights guide them simply to the results they want? Even more pointedly, what is there to stop them from being the kind of judges that Judge J. Braxton Craven Jr., of the 4th U.S. Circuit Court of Appeals, warned of in a little-known 1972 essay:
"I believe that there are only two kinds of judges at all levels of courts: those who are admittedly (maybe not to the public) result-oriented and those who are also result-oriented but either do not know it or decline for various purposes to admit it."
Writing only last month in Judicature magazine, Prof. G. Edward White of the University of Virginia Law School offered an insight I'd like to pass along. The chief constraints come "from the persistent equation, in American society, of law with abstract beliefs about morality and justice," he suggested.
An interpretation of the Constitution that is too "immoral" or too "unjust" isn't invested with legitimacy and "is simply not accepted by the public," White wrote. The Dred Scott vs. Sanford decision of 1857 "was such an interpretation: it foundered on the immorality and injustice of black slavery," he said.
After Vietnam, Watergate, and influence-peddling in Congress, White said, he isn't particularly optimistic "about the inherent capacity of elites to be moral and just. I am somewhat more sanguine about the capacity of the public to recognize immorality and injustice."
The chief justice often gives the impression that he has a fixation on the press.
Take a talk he gave last year on the observance in 1987 on the 200th anniversary of the Constitution. He suggested a three-year study of the role of each of the three branches of government. The result, he said, could be "a series of papers comparable in utility if not in quality with the Federalist Papers of 200 years ago."
The concept was grand. Yet -- for some reason -- Burger felt compelled to weave into it this idea: the questions reporters wanted to ask at presidential press conferences should be in writing and submitted in advance.
The idea is trivial -- as distant from an issue of constitutional dimensions as it could be. Any president who wants to implement it can do so, any time.
The press selects the anthems, dirges and dissonances to be heard by the court's multiple audiences. Its performance sometimes draws complaints, particularly from Burger. By contrast, Powell, in last summer's interview, said that the press "generally does a creditable job of informing the public."
If the justices do have a fair complaint, so does the public: the court has, but doesn't exercise, authority to lessen public dependence on the news gatekeepers.
Burger, early in his tenure, did much to ameliorate the court's clustering of numerous actions on certain days, a practice that enhances the possibilities for press slighting of some decisions and for inaccuracies.
Although the practice probably can't be eliminated, decisions could be spread over more days than at present and not be released on the days when the court announces actions on petitions for review of rulings by lower tribunals.
Another opportunity for the court to better serve the public lies in oral argument. To be sure, it's sometimes dull except, say, for specialists in arcane subjects, such as the application of tax law to a foundation created by Walt Disney. Frequently, however, the issues are important and the pros and cons fascinating, if not to everyone, then to large numbers of Americans. Yet the justices won't allow broadcast or telecast of oral argument. Again it's the public that loses.
Morton Mintz recently left the Supreme Court pressroom, where, he says, the furniture appears to have been designed by an orthopedist seeking a new business, for a new reporting assignment .