Found a copy of Archibald Cox’s _The Role of the Supreme Court in American Government_ (Oxford, UK: Oxford University Press, 1976) a few years ago and put it aside in my book closet. Thought now was the time to take it out. The book is from lectures Cox delivered in the UK. Archibald Cox was the target of Richard Nixon’s Saturday Night Massacre that was part of the whole Watergate investigation and impeachment process and his words, I believe, speak to today’s politics too.
Archibald Cox’s
The Role of the Supreme Court in American Government
Oxford, UK: Oxford University Press, 1976
(page 7) Constitutionalism as a constraint upon government depends, in the first instance, upon the habit of voluntary compliance and, in the last resort, upon a people’s realization that their freedom depends upon observance of the rule of law. The realization must be strong enough for the community to rise up and overwhelm, morally and politically, any notable offender.
(8) Suppose that the President’s defiance [Nixon tapes case] were successful. The habit of compliance - the notion that a powerful executive official has no choice but to comply with a judicial decree - is a fragile bond.
(26) The courts ruled upon the claim of executive privilege as a defence to the subpoenas obtained by the Special Prosecutor because it arose in the course of normal judicial business: a grand jury inquiry into possible crimes in the one case [Nixon v Sirica], and the trial of a criminal indictment [United States v Nixon] in the other.
But resolving disputes between the President and Congress over the provision of evidence for the Congress is not part of, or incident to, any judicial business confided to the courts by the statutes that presently define their jurisdiction.
(40) [In re Gertz v Welch] (1) The Constitution gives absolute freedom to publish statements about public figures which turn out to be false and defamatory unless the publisher knew them to be false or was reckless as to their truth.
(2) The Constitution frees the press from liability where there is neither negligence nor more serious fault.
(3) Injury must be proved; it cannot be presumed from the bare publication of a libel, and the damages may not exceed “actual injury” unless the falsehood was intentional or reckless.
(71) Shapiro v Thompson invalidated State laws requiring one year’s residency to qualify for State welfare payments to indigent mothers with dependent children. Some passages in the opinion seemed to put the decision upon the ground that discrimination based upon exercise of the privilege of interstate movement is especially “invidious.” Elsewhere the majority intimated that receipt of welfare payments when indigent is a “fundamental right.”
(98) In the 1930s political philosophy came to accept in theory as well as practice the principle that government is not merely a policeman but has affirmative obligations to meet the basic needs of citizens for subsistence, shelter, jobs, education and - more recently - medical care. Somehow constitutional law must cope with the change. As the dependence of the citizen upon government acitivites increase, so will grow the proportion of cases in which the the critical issues of human liberty, equality, and dignity depend upon how well the government is satisfyng its obligations, rather than upon whether the government should leave the individual to himself. The Court will scarcely perform its historical function of protecting the individual in his relation with the State unless substantive constitutional rights and the processes of constitutional adjudication can be adapted so as to retain vitality despite the difficulties of the new milieu. This is the next great challenge of American constitutionalism.
(107) Similarly, although the general outlook of an appointee may often be predictable enough and would be taken into account by any President, “value-packing" the Court in the sense of appointing men so committed to one set of values that all would vote together on a variety of issues in predictable ways would soon raise questions of legitimacy, and thus undermine both the Court and the impact of its decisions. One of the chief dangers of excessive politicization is its tendency to feed upon itself. If constitutional decisions lose their roots in law, such pressures as there are to appoint Justices steeped in the legal tradition would diminish, the decisions would become more political, and the descending spiral accelerate.
NB: John Adams’ “paper judges" - the Federal appointments rushed through confirmation at the end of Adams’ first and only term in office. Value packing and political cronyism have been part of the judiciary in the USA since the beginning.
Archibald Cox’s
The Role of the Supreme Court in American Government
Oxford, UK: Oxford University Press, 1976
(page 7) Constitutionalism as a constraint upon government depends, in the first instance, upon the habit of voluntary compliance and, in the last resort, upon a people’s realization that their freedom depends upon observance of the rule of law. The realization must be strong enough for the community to rise up and overwhelm, morally and politically, any notable offender.
(8) Suppose that the President’s defiance [Nixon tapes case] were successful. The habit of compliance - the notion that a powerful executive official has no choice but to comply with a judicial decree - is a fragile bond.
(26) The courts ruled upon the claim of executive privilege as a defence to the subpoenas obtained by the Special Prosecutor because it arose in the course of normal judicial business: a grand jury inquiry into possible crimes in the one case [Nixon v Sirica], and the trial of a criminal indictment [United States v Nixon] in the other.
But resolving disputes between the President and Congress over the provision of evidence for the Congress is not part of, or incident to, any judicial business confided to the courts by the statutes that presently define their jurisdiction.
(40) [In re Gertz v Welch] (1) The Constitution gives absolute freedom to publish statements about public figures which turn out to be false and defamatory unless the publisher knew them to be false or was reckless as to their truth.
(2) The Constitution frees the press from liability where there is neither negligence nor more serious fault.
(3) Injury must be proved; it cannot be presumed from the bare publication of a libel, and the damages may not exceed “actual injury” unless the falsehood was intentional or reckless.
(71) Shapiro v Thompson invalidated State laws requiring one year’s residency to qualify for State welfare payments to indigent mothers with dependent children. Some passages in the opinion seemed to put the decision upon the ground that discrimination based upon exercise of the privilege of interstate movement is especially “invidious.” Elsewhere the majority intimated that receipt of welfare payments when indigent is a “fundamental right.”
(98) In the 1930s political philosophy came to accept in theory as well as practice the principle that government is not merely a policeman but has affirmative obligations to meet the basic needs of citizens for subsistence, shelter, jobs, education and - more recently - medical care. Somehow constitutional law must cope with the change. As the dependence of the citizen upon government acitivites increase, so will grow the proportion of cases in which the the critical issues of human liberty, equality, and dignity depend upon how well the government is satisfyng its obligations, rather than upon whether the government should leave the individual to himself. The Court will scarcely perform its historical function of protecting the individual in his relation with the State unless substantive constitutional rights and the processes of constitutional adjudication can be adapted so as to retain vitality despite the difficulties of the new milieu. This is the next great challenge of American constitutionalism.
(107) Similarly, although the general outlook of an appointee may often be predictable enough and would be taken into account by any President, “value-packing" the Court in the sense of appointing men so committed to one set of values that all would vote together on a variety of issues in predictable ways would soon raise questions of legitimacy, and thus undermine both the Court and the impact of its decisions. One of the chief dangers of excessive politicization is its tendency to feed upon itself. If constitutional decisions lose their roots in law, such pressures as there are to appoint Justices steeped in the legal tradition would diminish, the decisions would become more political, and the descending spiral accelerate.
NB: John Adams’ “paper judges" - the Federal appointments rushed through confirmation at the end of Adams’ first and only term in office. Value packing and political cronyism have been part of the judiciary in the USA since the beginning.
