Paper by Robert F. Nagel
Much of the public commentary immediately following the Attorney General's remarks is remarkable in underestimating his seriousness and modulaton. Despite Meese's articulated respect for the judiciary and his concern for the rule of law, a prominent and sophisticated commentator characterized the argument as a “‘calculated assault on the idea of law in this country.”’ Others, who apparently read the speech more carefully, were able to disapprove of the speech despite acknowledging the importance of the issues raised and despite ignoring (or even conceding) the substance of the argument. Some, for example, suggested that it was inappropriate for the Attorney General to raise such issues because of the nature of his office. Others did not so much attack the substance of the speech as condemn its tone, which allegedly was “contemptuous of the Court”' and made “in a spirit of petulant disobedience.”' Still others criticized what they claimed the Attorney General almost said or what they believed to be the ideological motivations behind the speech.
Attorney General Meese argued for these main propositions: (1) that the Constitution as a document is different from the judicial opinions that interpret the document; (2) that the legal authority of the document is superior to the legal authority of the opinions; (3) that Supreme Court opinions should be subject to criticism and revision because of the possibility that they might not be faithful to the document; (4) that citizens and government officers should not view judicial decisions in a way that cuts off independent, critical judgment about the meaning of the document; and (5) that an expansive view of the binding effect of constitutional cases is inconsistent with the formation of independent, critical judgments. In short, the rule of law itself requires that Supreme Court decisions be binding only on the parties to the case and on the executive officers responsible for enforcing the judicial resolution of the case. Although I believe this argument needs to be amended in certain respects, under the circumstances of modern reliance on judicial power, it is a thoughtful and important contribution to public debate.
While some of the criticism of Meese's speech can be explained on partisan or personal grounds, its sources run deeper than that. In this Commentary, I first compare the reaction to the Attorney General's speech with common reactions to other “attacks”' on the judiciary. I then develop my own limited criticism of Meese's position; oddly, the deficiency that I identify suggests that the Attorney General did not follow through the full implications of his position for much the same reason that drove his critics to protest his remarks. In a sense, then, both Meese and his popular critics were bothered by the same aspect of his argument. In different degrees, each recoils from an understanding of the nature of the Constitution that would permit real dialogue between the public and the Court.
About the Author
Robert F. Nagel. Professor of Law, University of Colorado; B.A., Swarthmore College 1968; J.D., Yale University 1972.
Citation
61 Tul. L. Rev. 1027 (1987)