Vol. 10 No. 3 (March 2000) pp. 228-232.

SOBER AS A JUDGE: THE SUPREME COURT AND REPUBLICAN LIBERTY by Richard G. Stevens and Matthew J. Franck (Editors). Lanham, MD: Lexington Books, 1999. 288 pp.

Reviewed by Tinsley E. Yarbrough, Department of Political Science, East Carolina University.

The editors and contributors to this intriguing volume extol the virtues of what they call "judicial sobriety," urge the selection of "sober" judges, and profile Supreme Court justices said to possess such qualities. A sober judge, as described here, is a jurist who considers the Constitution as separate and distinct from what courts may say it means, applies traditional rules of interpretation (primarily text and "original meaning") rather than noninterpretivist theories embraced by proponents of an ever evolving, judicially sculpted "living" Constitution in construing the document's meaning, gives due respect to precedent as a means of assuring stability and continuity in the law, and is deferential to coordinate governmental institutions to the extent compatible with the other standards of judicial sobriety. Judges who do not embody such characteristics-who accept the thesis, for example, that the Fourteenth Amendment absorbs or incorporates Bill of Rights safeguards and other rights "fundamental to liberty and justice"-may have achieved outstanding records by a variety of measures. But they cannot be considered "sober" judges. Jurists embracing the qualities of judicial sobriety, on the other hand, are worthy of praise, whatever their general judicial reputations.

The justices examined are Nathan Clifford, Stanley Matthews, Edward D. White, Fred M. Vinson, and Antonin Scalia. Appointed by James Buchanan in 1858, Clifford served on the high bench until 1881. In their portrayal of Clifford as a sober judge, Robert Lowry Clinton and Kevin Walsh focus in part on the justice's role in the Legal Tender Cases, for which he is primarily remembered. In HEPBURN v. GRISWOLD (1870), the Court struck down the Legal Tender Act, under which Congress, relying on powers implied from its military and borrowing authority, had made greenbacks legal tender in the payment of private debts. Following a change in its membership, the Court overruled HEPBURN the next year in the Legal Tender Cases (KNOX v. LEE and PARKER v. DAVIS, 1871). Justice Clifford had joined Chief Justice Chase's opinion in HEPBURN, but not, Clinton and Walsh are confident, portions of the opinion resting the ruling on the "spirit of the Constitution." Instead, as the justice pointed out in dissent from the 1871 decisions overruling HEPBURN, Clifford based his opposition to greenbacks on what he considered the constitutional framers' intent to stamp out paper currency at both the national and state levels of government. Thus, Clifford "soberly eschew[ed] discussion of natural law, the 'spirit of the Constitution,' or individual 'rights'" (p. 39), on which other justices opposing the greenback law had based their votes, resting his decision instead on the intent of the framers, a proper source of constitutional meaning for the sober judge.

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In detailing and applauding the sobriety of Justice Stanley Matthews, who was appointed by President Garfield and served on the Court 1881-89, Richard Stevens contrasts the justice's opinion for the Court in HURTADO v. CALIFORNIA (1884) with the first Justice Harlan's HURTADO dissent. Matthews, observes Stevens, soberly rejected Harlan's thesis that the Fourteenth Amendment due process clause incorporated all the safeguards of the Bill of Rights, including the Fifth Amendment grand jury guarantee at issue in HURTADO, making them binding on the states as well as the national government. For Matthews, according to Stevens, due process required only that states proceed against individuals according to the "law of the land"- that is, established laws and procedures. It did not impose on government particular constitutional requirements drawn from other sources.

Dennis G. Stevens finds equally deserving of praise as a sober judge Edward D. White, who served first as associate justice (1894-1910) following appointment by President Cleveland, then as President Taft's choice as chief justice (1910-21). Stevens pays closest attention to White's commerce jurisprudence, particularly his support for a "rule of reason" construction of the Sherman Anti-trust Act. Although the statute's language prohibited "every combination" in restraint of interstate trade, White contended that the law realistically was intended only to reach "unreasonable" or "undue" burdens on interstate commerce. In U. S. v. TRANS-MISSOURI FREIGHT ASSOCIATION (1897), a majority, over White's dissent, refused to embrace his thesis; but he eventually prevailed. In STANDARD OIL CO. v. U. S. (1911) and U. S. v. AMERICAN TOBACCO CO. (1911), White spoke for the Court in limiting the Sherman Act's reach to "unreasonable" interstate trade restraints. His willingness to find against the companies in both cases is proof to Professor Stevens that the chief justice's "rule of reason was not just a smokescreen for a policy preference on the part of White to support big business" (p. 105), but based instead on the traditional legal notion that prohibitions on restraint of trade applied only to unreasonable restraints-a concept implicit, presumably, in the Sherman Act. Terming him "The Last Justice Without a Theory," Matthew Franck finds the judicial sobriety of Fred M. Vinson, a Truman appointee who served as chief justice 1946-53, evident in a variety of the justice's issue positions.

Vinson's narrow construction of the clear and present danger test in the Dennis case, reasons Franck, demonstrated the chief justice's deference to government's authority to protect itself against overthrow-an exceedingly grave evil, however improbable its occurring as a result of the defendants' speech. Vinson, Franck acknowledges, did author the Court's ruling in SHELLEY v. KRAEMER (1948), overturning in an opinion long regarded by critics as an unduly expansive reading of the state action doctrine a state court injunction used to enforce a racially restrictive housing covenant. But the chief justice, Franck hastens to point out, dissented in BARROWS v. JACKSON (1953), when the Court invalidated a damage suit filed against a homeowner who broke a covenant. True, such suits would have the same inhibiting effect on homeowners as an injunction forbidding the completion of a sale to a minority family. For Vinson and Franck, however, the state's role in Barrows was more attenuated than in Shelley, and thus beyond the reach of judicial review. Franck also finds Vinson's Steel Seizure dissent clearly more consistent with the precepts of a sober judge than Justice Black's "simplistic

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'opinion of the Court'" and the opinions of concurring justices, which, "truth be told . . . , made only modest improvements" on Black's "mercifully if disrespectfully short" effort (p. 153). Truman, after all, could cite a long history of presidential action in the absence of statutory authority and had also assured members of Congress that he would abide by their wishes in the matter. Only those supportive of ultimate judicial authority over co-equal branches of government, concludes Franck, could condone what Vinson termed the majority's "messenger-boy concept of the Office" (Quoted at p. 157) and rejection of the president's action.

In a final profile, Lane V. Sunderland examines Antonin Scalia, appointed to the Court by President Reagan in 1986 and the justice whose opinions and off-the-bench statements-if not his entire judicial record-perhaps most clearly reflect the qualities of judicial sobriety. More emphatically by far than the other justices profiled, Scalia purports to base his interpretation of the Constitution on text and original meaning, regularly condemns the notion that judges have the authority to keep our "living" Constitution in tune with the times, and favors limited or no judicial intervention in a variety of fields. Despite his generally restraintist, conservative leanings, Scalia, according to Sunderland, relies heavily on constitutional text, even when it takes him in activist-liberal directions, as evidenced, for example, by his literalist approach to the right of defendants to confront their accusers in criminal prosecutions. He thus is not, contends Sunderland, a result-oriented judge of the noninterpretivist variety. To preserve the stability that a sober judge considers necessary to an effectively functioning legal system, Scalia will adhere to precedents with which he disagrees, but only where there is some basis in the Constitution's text or the nation's traditions for recognition of the claim at issue. Sunderland concedes, for example, that a constitutional textualist might be expected to oppose First Amendment protection for flag-burning and related forms of symbolic speech; the Constitution, after all, protects speech, not "symbolic" speech. In Sunderland's judgment, however, Scalia joined the Court's flag-burning rulings only because the Constitution provided explicit protection for freedom of speech and a number of precedents had included unorthodox uses of the flag within its reach. Scalia has refused to embrace the Court's abortion and related privacy rulings, Sunderland reasons, because they, unlike the flag-burning decisions, have no basis in the Constitution's text or national traditions-the legitimate sources of constitutional meaning for a sober judge.

These essays offer engaging and provocative insights into their subjects (and perhaps their authors, as well). Standing alone without reference to the volume's overarching sobriety thesis, they are frequently penetrating and especially valuable since only Justice Scalia of the judges profiled has been subjected to extensive scholarly attention. Ultimately, however, the authors' definitions of judicial sobriety, and particularly their application of such standards to the justices examined, appear so hopelessly pliable and arbitrary that they could arguably be applied to jurists who embrace a wide variety of approaches to the judicial function. The profiles abound with examples reflecting my concern. In his full opinion for the Court in the HURTADO case, for example, Justice Matthews stated that states were obliged under the due process clause to exercise their powers not merely according to established laws and procedures, but "within the limits of . . . fundamental principles of liberty

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and justice." Justice Cardozo's opinion for the Court in PALKO v. CONNECTICUT (1937) relied on precisely such language and similar rhetoric to justify selective absorption of Bill of Rights safeguards into the Fourteenth Amendment. Yet in various places the authors roundly criticize not only the absorption doctrine generally but especially Cardozo's PALKO opinion, while the Matthews profile selectively quotes from and applauds his HURTADO opinion as a model of judicial sobriety. Edward D. White's inclusion in this volume is also not without irony. White, after all, provided the fifth vote in HAMMER v. DAGENHART (1918), striking down the Child Labor Act on dual federalism and substantive due process grounds. Yet Hammer remains one of the classic textbook examples of the Court's assumption of super-legislative authority in the laissez-faire era and thus hardly on line with the authors' sobriety thesis and opposition to the "living" Constitution. Nor does White's engrafting of the rule of reason onto the Sherman Act's language seem the act of a "sober" judge. Similar observations could be made regarding Justice Clifford and especially Chief Justice Vinson. Justice Scalia's credentials as a sober judge are certainly not unblemished either. Professor Sunderland's explanation for the justice's departure from textualism in the flag burning cases, yet persistence in refusing to yield to precedent in abortion and other privacy contexts, is reasonably convincing. But Sunderland makes no mention of Scalia's major role in the Rehnquist Court's aggressive use of the takings clause as a thinly veiled version of substantive due process (albeit one available only in behalf of propertied interests rather than non-economic rights claims), revival of dual federalism in commerce clause cases, and expansive notions of state sovereign immunity from lawsuit. Such developments arguably contravene the sober judge's supposed reverence for long precedent and reluctance to subject laws and procedures to imitations found in neither the Constitution's text nor deeply rooted American traditions, yet Professor Sunderland fails to address these probable lapses in Scalia's record.

Despite fundamental flaws in its thesis, however, this volume is an important addition to the continuing debate on the proper role of the judge in constitutional interpretation. It should attract wide interest among students of jurisprudence and judicial politics.

CASE REFERENCES:

BARROWS v. JACKSON, 346 U.S. 249 (1953).

HAMMER v. DAGENHART, 247 U.S. 251 (1918).

HEPBURN v. GRISWOLD, 75 U.S. 603 (1870).

HURTADO v. CALIFORNIA, 110 U.S. 516 (1884).

KNOX v. LEE and PARKER v. DAVIS, 79 U.S. 457 (1871).

PALKO v. CONNECTICUT, 302 U.S. 319 (1937).

SHELLEY v. KRAEMER, 334 U.S. 1 (1948).

STANDARD OIL CO. v. UNITED STATES, 221 U.S. 1 (1911).

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UNITED STATES v. AMERICAN TOBACCO COMPANY, 221 U.S. 106 (1911).

UNITED STATES v. TRANS-MISSOURI FREIGHT ASSOCIATION, 166 U.S. 290 (1897).