THERE IS something familiar about the scenario being played out before the Judiciary committees on Capitol Hill this spring. Except for a few of the details and the actors -- and even some of those are the same -- the scenes are right out of the great "kill the court" campaigns fought in the mid-1950s and 1960s.
The subjects this year are the Supreme Court's decisions on abortion, school busing and public prayer. In the 1960s, Congress was roasting the court for what if had done about prayer, reapportionment and confessions in criminal cases. A decade earlier, the decisions under fire concerned confessions, school desegreagation and subversion. In each instance, the goals of the court's critics have been to overturn specific decisions or to curtail the court's power to render decisions on certain subjects.
The principal difference this year is that the critics are more sophisticated. There is no Sen. William Jenner rampaging against a court that, he declared, always decided that everyone was wrong "except the attorneys for the communist conspiracy." There is no Rep. William Tuck denouncing the justices for interfering with state's rights.
The arguments, however, are the same. The court has been wrong, its critics say, about abortion, prayer and busing -- and the best way to remedy its errors is not to amend the Constitution (a long and complicated procedure) but rather to find legislative shortcuts. This year the shortcuts are for Congress to impose on the court a definition of the word "life", to eliminate the court's jurisdiction to hear cases involving prayer in public buildings and to bar federal judges from using busing in school segregation affairs.
These proposals contain the same ideas as legislation that passed the House in 1958 and in 1964. The Truck bill would have stripped the federal courts of jurisdiction over reapportionment cases. The Jenner--Butler bill would have limited their reach in loyalty-security cases. The anti-Mallory bill would have redefined the ruled under which confessions are used at criminal trials.
In the light of history, all those bills seem foolish and reckless now. Like the proposals this year, they would not only have changed specific decisions but also have either altered drastically the balance of power between Congress and the court (if their constitutionality were upheld) or provoked a confrontation between those two branches (it they were held unconstitutional).
The fact that this same battle recurs is interpreted by some to mean the court has been wronag for 30 years ahnd should be put in its proper place. The irony of that view is that along the way one president, Richard M. Nixon, made reformation of the court a touchstone of his administration. His reformation ultimately produced reaffirmation, not repudication, of the court's view on those subjects about which its critics think it is most wrong.
This suggests to us that justices, removed from the political battles of the day, have a longer view of history and the changing needs of law. They can be wrong, of course, and serious errors acan be and have been corrected through the tedious process of amendment. But it would be a tragic mistake this year, as it would have been before, for Congress to attempt to shortcut that process by changing the court's jurisdiction or defining particular words. Such shortcuts lead only to that place, where Congress has the final say on what for Constituion means. What are the federal courts for?