I want to thank Larry Guthrie and Cassandra Morrow for inviting me to speak. For--you see--for decades now, I've been an SLA groupie. Although I am generally fond of librarians, my love for one special, special librarian has made me the groupie I am. Many years ago Barbara was not the intrepid air traveler she has since become, and as she recuperated in our hotel room I would pick up her registration materials. In Detroit as the Grand Prix racers circled the hotel, I went down to the registration desk. When the person behind the desk asked if I, too, was attending the convention, I replied: "No, I'm just attending my wife." In the process of doing just that over the years, my respect for you professionals has only increased. I trust you now understand why I especially relish this opportunity to leave the corridors and mount the stage. INTRODUCTORY REMARKS
We are going to start off with an edited version of a video prepared for visitors to the United States Supreme Court Building. This version runs a little less than 16 minutes and gives you the opportunity to get acquainted with the present justices and their views about the Court's role. Following the video I will share with you some ideas I have about the unique role the Court plays in promoting unity in our pluralistic society. We should have 15-20 minutes for questions and discussion at the end.
It has become fashionable to note how different Americans are. What makes this present rediscovery of the obvious troubling is its negative voice. But instead of lamenting the situation, we should be reveling in it. We need to be aware that attempts to force others to be more like us is, well, unAmerican. And finally, we should understand both how and why a nation composed of such obviously diverse people has survived into its third century. MAIN ADDRESS
Americans are united within a civic culture that is much stronger and more durable than current worries suggest. The ties that bind are primarily legal, political and spiritual. And they are institutionalized within the American constitutional system.
When Americans left the security of the British Empire, they knew that they would be engaged in a unique experiment in nation-building. One might well say that they were doing no less than inventing a nation. To illustrate that awareness and sketch in the elements of that enterprise, I want to look at three things: the Great Seal of the United States of America; the Declaration of Independence; and the Constitution with the Bill of Rights.
The Great Seal, officially approved in 1782, acknowledged the diversity of the American population with the Latin phrase, E Pluribus Unum (Out of Many, One). On its other side it recognized the novelty of creating a nation with such a polyglot heritage by proclaiming Novus Ordo Seclorum (A New Order of the Ages).
If the Great Seal's Latin phrases captured the newness of the American creation, the Declaration of Independence sketched out the responsibility of government in this new nation. Legitimate government must rest on the bedrock of the people's consent, and the sole purpose for its institution was to secure the individual's equal right to life, liberty and the pursuit of happiness.
From the time of the Declaration of Independence, Americans were challenged to fulfill a founding myth that viewed the country "as a divinely inspired asylum for those who sought liberty and opportunity." Blessings, therefore, were to be shared with new arrivals. American identity was only strengthened as immigrants eagerly accepted "the universal norms of a moral and social order which gave them equality of status, liberty of expression, and the right to consider themselves citizens." Throughout its history, the country has staked its identity "on the peculiar faith that the One and the Many are not only mutually compatible but essential to freedom."
One of the primary reasons for the displacement of the Articles of Confederation by the Constitution was the failure of the states to protect individual rights. A goal of the strengthened union was, to quote the Preamble, "to secure the Blessings of Liberty to ourselves and our Posterity." Opponents of the Constitution argued that this goal could not be met without protecting the rights of individuals from the increased power of the new national government. Supporters of the Constitution promised to rectify this defect when the government actually went into operation. And by the end of its first year, the amendment proposals that would become the Bill of Rights went to the states for ratification. The proposal that would become the First Amendment protected the individual's speech and personal religious choice. It was no less than a guarantee that diversity and dissent would always characterize the changing American population.
Could a people so different, then, constitute an enduring nation. What bound them together was a belief in certain principles and the realization that common belief would not necessitate common practice. Much of a person's identity would be determined outside the boundaries of this national community. Those who seek to tighten the embrace of this community by reading their cultural preferences into it contradict the community's core principles. And those who stress their diversity and attack the cultural grafts others would attach to being an American too often fail to distinguish the grafts from the core principles themselves. No matter how much one identifies with a particular group, the American remains a member of the national community and works within its parameters. For instance, claims for tolerance or justice or equality only strike a responsive chord because those who heed them share the same core principles.
The Constitution had called for the creation of a supreme court as the cornerstone of an independent judicial branch. From the Court's very inception, those who served on the High Bench saw their task in terms of strengthening the fragile ligaments of American nationhood. If justice was to be established and liberty secured, as the Preamble anticipated, much of the task inevitably would fall upon this branch of government. Behind a commitment to ensure the supremacy of the Constitution was a national faith. That faith emphasized the openness of the American community and the need to dignify individuals by respecting their rights. Only in this way could diversity and unity coexist. The implications of the Declaration's statement that all persons are created equal would take decades--even centuries--to work out. But the Revolutionary era had synthesized the articles of a civic faith that the justices of the Supreme Court would take seriously as part of their ongoing obligation. That obligation was to reduce the gaps between belief and action in the society. By ensuring that a civic faith neither atrophy nor intrude on the realm of personal choice, including traditional religious choice, they would give a resounding affirmative answer to the question of whether a nation conceived in liberty could survive. You see--the Court would not only decide cases but also play a central role in explicating, reinforcing and expanding the range of these ties that bound Americans together.
Although not all justices at all times responded to the urgent claims of this civic faith, these claims were recognized early. And such recognition continues up to the present time. When the Court itself erred in ignoring the faith's commandments, it would correct itself. To illustrate what I have in mind, I want to look at some of the Court's work that impacts on the individual's freedom to choose.
Let us start with the attempt of some states to instill patriotism among the young-an attempt that raised the hackles of Jehovah's Witnesses
The Witnesses were an especially litigious religious group in the latter 1930s and 1940s. We all owe them a debt of gratitude, for their initiatives prodded the Court to widen the ambit of individual liberty. In 1940 some Witnesses claimed that their children's religious freedom was being invaded by the state's imposition of a compulsory flag salute in its public schools. A failure to participate in this exercise was cause for dismissal. By an 8 to 1 count, the justices upheld this practice. The lone dissenter, Harlan Fiske Stone, lectured his colleagues: the Constitution, he said, does not permit government to extract a pledge of loyalty by overriding the individual's freedom of speech and religion.
Three years later, again in response to the protest of Witnesses, the Court reconsidered its earlier ruling. Stone, who had recently been elevated to the position of chief justice, now found his views vindicated. Three of his colleagues had changed their minds, and two new arrivals sided with him, thus producing a 6 to 3 decision. The chief assigned the opinion to Robert Jackson who eloquently defended the right of free speech in the pluralistic society. Noting that "history indicates a disappointing and disastrous end" for "officially disciplined uniformity," he insisted that the preservation of a right of free speech neither weakens government nor interferes with the legitimate authority of school boards. The fact that these boards "are educating the young for citizenship is reason for scrupulous protection of" individual freedom. Otherwise, the justice added, young minds are strangled at their source and students are implicitly taught that important constitutional principles are no more than "mere platitudes." To entrust the protection of individual rights to popular majorities, he continued, undermines the "very purpose of a Bill of Rights." Jackson again summoned history to his cause, this time to validate the responsibility judges have for protecting individual liberty from hostile governmental action.
Then tackling the rationale that such an enforced pledge promotes national unity, Jackson delved to the very heart of the American experience. He could conceive no better way, he said, to destroy that unity than by imposing upon the public education system the task of compelling the young to adopt a particular set of beliefs. Coercive attempts to end dissent, the justice warned, would exterminate dissenters and achieve "only the unanimity of the graveyard." Jackson said that he and his colleagues in the majority categorically rejected the notion that the "freedom to be intellectually and spiritually diverse or even contrary will disintegrate the social organization." But, he added, this "intellectual freedom and . . . rich cultural diversit[y]" does not come cheaply. "Here the price is not too great. But freedom to differ is not limited to things that do not matter much," for the true test of our commitment to freedom is our respect for the "right to differ as to things that touch the heart of the existing order."
In the wake of a successful civil rights crusade fueled by the Court's decision in Brown v. Board of Education, a revitalized women's movement targeted laws that were discriminatory or laws that implied inferiority. One of the targets in the latter area was restrictive state anti-abortion legislation. In Roe v. Wade, the Court confronted the claim of a single pregnant woman who contended that Texas's prohibition of abortion, except when the woman's life was in jeopardy, was an unconstitutional interference with her liberty. Harry Blackmun, for the majority, found that the right of privacy, first directly recognized by the Court less than a decade earlier (Griswold v. Connecticut ), was encompassed by the term "liberty" in the 14th Amendment. And this right, he continued, included a woman's choice to terminate a pregnancy during the first six months. He cited an 1891 decision in which the Court had ruled that a plaintiff in a personal injury case could not be forced to undertake a physical examination. The justices there had said: "No right is held more sacred, or is more carefully guarded by the common law, than the right of every individual to the possession and control of his own person, free from all restraint or interference of others, unless by clear and unquestionable authority of the law."
Over the next twenty years the ruling in Roe v. Wade was under siege, as Presidents Ronald Reagan and George Bush considered nominees to the Court with an eye toward reversing that decision. In this period the Supreme Court upheld certain limitations on the right of a woman to terminate her pregnancy. These limitations included a denial of Medicaid funds for abortions, waiting periods, and parental consent for minors. In 1986, however, the Court struck down a Pennsylvania law imposing new regulations on the right. Recognizing the spirited debate that Roe had provoked, Blackmun, for the Court, said that "controversy over the meaning of our Nation's most majestic guarantees frequently has been turbulent. . . . But those disagreements . . . do not now relieve us of our duty to apply the Constitution faithfully." Reading the fundamental law to embody "a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of government," Justice Blackmun said that this promise "extends to women as well as to men." He then continued: "Few decisions are more personal and intimate, more properly private, or more basic to individual dignity and autonomy, than a woman's decision . . . whether to end her pregnancy. A woman's right to make that choice freely is fundamental."
Subsequently, however, with changes in membership, the justices did uphold new restrictions on the right and suggested that the ruling in Roe itself might be vulnerable. But in 1992, the Court refused to overrule Roe v. Wade. Remaining from the bench that had decided Roe were William Rehnquist (now chief justice), Byron White, and Blackmun. The first two had been dissenters and the third, of course, was the opinion's author. The one nomination that President Gerald Ford had made, John Paul Stevens, was a supporter of Roe. Before counting the Reagan and Bush appointees then, the Court was divided two to two. Those two presidents added Sandra Day O'Connor, the first woman to take a seat on the High Bench, Antonin Scalia, Anthony Kennedy, David Souter, and Clarence Thomas to the Court. Scalia wrote for Rehnquist, White, and the new arrival Thomas. He scolded the majority for not overruling Roe. That majority was composed of Blackmun, Stevens, O'Connor, Kennedy, and Souter.
Responding to his colleagues who would have overruled Roe and returned abortion to the regulatory power of the states, Justice Blackmun condemned the "stunted conception of individual liberty" upon which they had based their reasoning. He warned that the society pictured by the minority, in which individual liberty was sacrificed to electoral results, was worlds removed from the one pictured by a majority, one that maintained faith with a long and honored tradition of protecting individual rights. That tradition, he said, held "that there are certain fundamental liberties that are not to be left to the whims of an election. A woman's right to reproductive choice is one of those fundamental liberties."
The highly politicized process of selecting nominees for the Court in the Reagan and Bush years had suggested that the way to reverse Roe v. Wade was simply to fill the High Bench with enough members who disagreed with that decision. O'Connor, Kennedy and Souter responded to this expectation in an opinion they collectively authored that announced the judgement of the Court. They explained what the rule of law meant and how it imposed obstacles to being captured by political majorities. In doing so, the trio expanded upon the Court's special role in American society and the centricity of individual rights in the constitutional order.
Recognizing their traditional responsibility to protect individual liberty, these justices said that "matters . . . involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Asserting that liberty was threatened by "a jurisprudence of doubt," they found in the Constitution a promise "that there is a realm of personal liberty which the government may not enter." Government is ill equipped to define woman's role, they added, because the task is too personal and intimate, and her destiny "must be shaped to a large extent on her own conception of her spiritual imperatives and her place in society." The ruling that prior to the viability of the fetus the pregnant woman has the right to obtain an abortion they found neither unworkable, hardship-inducing, nor obsolete. It must stand, the justices said, because it "serves human values" and because it furthers the "ability of women to participate equally in the economic and social life of the Nation."
Refusing to follow any political agenda, the three justices found their refuge in the power of the judicial tradition and the primacy of individual rights embodied in the commandments of the Constitution.
Justice Stevens added some words of his own calling the decision in Roe "an integral part of a correct understanding of both the concept of liberty and the basic equality of men and women." The state, he continued, must respect the woman's right to make such decisions, for the authority to choose is both empowering and "an element of basic human dignity."
With the election of Democrat Bill Clinton later in 1992, the threat to Roe had passed. The new president's support for the woman's right to choose would be reflected in his choices for the High Bench. The clock would not be turned back to the mid-1970s, but Roe had survived the political onslaught.
Many of the Court's critics questioned first the deduction of a right of privacy from the constitutional text and, second, the inclusion of a limited right to an abortion within its ambit. But a right of privacy has more of a history in constitutional interpretation than its critics generally grant. And despite the fact that the right has often been linked with abortion, its reach extends much further. For instance, take the case of Robert Stanley. Some allegedly obscene films were found by police in their search for bookmaking paraphernalia, and Stanley was arrested, charged and convicted for their possession. "The right to receive information and ideas, regardless of their social worth . . . ," the Court said, "is fundamental to our free society." Government cannot make "mere possession [of obscene material] by the individual in the privacy of his own home" a crime. At the foundation of our society, the justices added, "is the right to be free, except in very limited circumstances, from unwanted governmental intrusions into one's privacy." They, then, concluded: "If the First Amendment means anything it means that a State has no business telling a man, sitting alone in his own house, what books he may read or what films he may watch. Our whole constitutional heritage rebels at the thought of giving government the power to control men's minds."
If privacy is a constitutional right, then does not the private sexual activity of consenting adults fit under this protection? No, said a five-person majority in 1986 in the case of Bowers v. Hardwick. Michael Hardwick had been discovered in his bedroom with a male friend by a police officer who had entered the house to bring in Hardwick for failing to appear in court on a charge of public drunkenness. The officer arrested both Hardwick and his companion for violating the Georgia law against sodomy.
The majority of justices framed the question for decision as follows: does the Constitution confer "a fundamental right upon homosexuals to engage in sodomy and hence invalidate the laws of the many States that still make such conduct illegal." Of course, posing the question in that way implied a negative answer.
Blackmun, in dissent with William Brennan, Thurgood Marshall, and Stevens, saw justice in Hardwick's claim that the state law "interferes with constitutionally protected interests in privacy and freedom of intimate association." Earlier in the year the dissenting quartet had gained Lewis Powell's vote to constitute a majority that invalidated some state restrictions on abortion. In that opinion Blackmun had said: "Our cases long have recognized that the Constitution embodies a promise that a certain private sphere of individual liberty will be kept largely beyond the reach of the government." Now repeating these words, he added that they embraced two areas: the decisions that are to be left to the individual and the places in which the individual should not be disturbed. "The fact that individuals," Blackmun continued, "define themselves in a significant way through their intimate sexual relationships with others suggests, in a Nation as diverse as ours, that much of the richness of a relationship will come from the freedom an individual has to choose the form and nature of these intensely personal bonds." In contrast to the majority's admonition that the Court should not seek to extend its power in such a case, Blackmun responded: "It is precisely because the issue touches the heart of what makes individuals what they are that we should be especially sensitive to the rights of those whose choices upset the majority." Neither public interest nor the protection of the rights of others, the justice continued, "can justify invading the houses, hearts, and minds of citizens who choose to live their lives differently." He pleaded with his colleagues to reevaluate their thinking "and conclude that depriving individuals of the right to choose for themselves how to conduct their intimate relationships poses a far greater threat to the values most deeply rooted in our Nation's history than tolerance of nonconformity could ever do."
Notice the nature of Blackmun's dissent. His brothers had erred and strayed from their responsibilities. By denying the individual the ability to choose, they had assaulted their own professed values. Later after he had left the Court, Justice Powell, whose vote had been crucial to forming the majority, acknowledged that he had voted the wrong way in the Hardwick case.
A decade later in 1996 the Court cast doubt on the precedential value of the Hardwick decision. By referendum the voters in Colorado had enacted a constitutional amendment that sought both to override and, to prevent the passage of, local laws protecting individuals from discrimination on the basis of their sexual orientation. Writing for the majority, Justice Kennedy agreed with the state courts that had struck down this attempted graft on the Colorado constitution. He concluded that only "animus toward the class that it affects" could explain the imposition of such "a broad and undifferentiated disability on a single named group." As such, he ruled that this attempt was "unprecedented in our jurisprudence" and "not within our constitutional tradition."
Kennedy said that the protections against discrimination that had been enacted into law by certain Colorado cities, and that had become the targets of the amendment drive, "are taken for granted by most people, either because they already have them or do not need them; these are protections against exclusion from an almost limitless number of transactions and endeavors that constitute ordinary civic life in a free society." The amendment, he concluded, sought to make homosexuals "unequal to everyone else. This Colorado cannot do. A State cannot so deem a class of persons a stranger to its laws." Blackmun's dissenting words in the case of Michael Hardwick had been heeded, for the majority now implicitly recognized that the Court's task was to promote inclusion and repel threats to any citizen's meaningful exercise of rights.
What these cases illustrate, I believe, is that wrong decisions-that is, decisions that are exclusionary or disrespectful of the right of the individual to choose--are inevitably self-corrected by the Court. And when an initial decision is right-that is inclusionary and respectful of the right of the individual to choose--there is an institutional resistance to bend to pressure and change it.
The liberty of the individual, so central both to our national existence and to the maintenance of a binding civic faith, will continue to be challenged in the coming century, often by those groups who find comfort in conformity and only chaos in individual diversity. At times the majority of the Court will tip in favor of the challengers, citing the system of federalism or the ability of the democratic majority to enforce its will. However, there will always be justices to argue for the importance of the individual in the pluralistic society and the crucial role of the Court in keeping the faith. And there will always be decisions that reflect, sustain, and promulgate that faith.
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