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Supreme Court Powers Debated
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12230 |
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MODERN THOUGHT
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2 / 1987 |
7,911 Words |
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Maureen Dowd, David Sawyier, Patrick Moore, and Morton A. Kaplan
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In August, September, and October 1986, Morton A. Kaplan, editor and publisher of THE WORLD & I, wrote editorial letters dealing with the Supreme Court and the constitutional separation of powers. He commented on the way the Court had exercised its power in a number of cases, including its judgments on abortion and the Georgia law forbidding sodomy. What follows is an exchange on the substance of these editorials. Maureen Dowd and David Sawyer take a critical view of Kaplan's position, Patrick Moore supports it, and Kaplan himself offers some concluding comments on the entire discussion.
The Court as the Guardian of Individual Freedoms
by Maureen A. Dowd and David R. Sawyier
Morton Kaplan's "Letters from the Editor" in the August-October 1986 issues of THE WORLD & I are inflammatory. He suggests analogies between fire-bombing abortion clinics and attacking Nazi death-camps, and between directors of abortion clinics and Dr. Mengele. He implies that prohibiting homosexual intercourse between consenting adults is comparable to restricting incest and summarizes the Pennsylvania Abortion Control Act, which was invalidated in Thornburgh v. American College of Obstetricians and Gynecologists, as involving no more than "informing pregnant women of moral or medical problems inherent in abortion." It is hard not to respond to such comments in kind, but let us address Kaplan's more serious constitutional argument.
The letters suggest that the separation of powers is endangered by the "judicial tyranny" of an activist Supreme Court. Kaplan contends that although "reasonable men" could differ on whether a constitutional right exists, the justices should not seek to impose their individual moral views on society. The proper means of resolving "highly contentious issues in which there are important equities on both sides" is, in his view, through the political process, not by having political options "closed off by arbitrary judicial fiat." Pointing out that no interpretation of the Constitution can be "entirely independent of the cultural values of the nation," Kaplan makes his case that the legislatures, not the Supreme Court, are the proper arbiters of these values. He urges that once a legislature or the executive has acted, its decision should be entitled to a strong presumption of legitimacy and invalidated only if "clearly unreasonable."
"Where the line is hard to draw," he insists, "precedence must be given to legislation." Finally, he proposes as an antidote for what he perceives as the Court's "dangerous disregard for the separation of powers," that a super-majority vote requirement be imposed on any Supreme Court decision to invalidate legislative or executive action.
Kaplan's arguments are not unfamiliar. It is, of course, unsettling that in a democracy nine individuals selected for life by a largely undemocratic process should have check-and-balance powers equal to those of the executive and legislative branches. That circumstance, however, does not imply that it is not fully justifiable for the Court to tend to defer to the legislature in some areas more than in others. For example, in the context of "purely political" matters such as electoral redistricting, Kaplan may be right that the Court should intervene only when the result is "outrageously
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