C TALKING POINTS APPROPRIATIONS AUTHORIZATION BILL …...Theodore B. Olson Assistant Attorney General Office of Legal Counsel Kenneth W. Starr Counselor to the Attorney General Tex

C

TALKING POINTS

JOHNSTON-HELMS AMENDMENTS TO DEPARTMENT OF JUSTICE

APPROPRIATIONS AUTHORIZATION BILL FOR FISCAL YEAR 1982.

O These provisions limit the power of lower federal

courts to order student transportation to schools beyond

those closest to their homes, with certain exceptions, beyond

10 mile or 30 minute round trips, and restrict the power

of the Justice Department to seek busing decrees.

o These provisions do not restrict the power of

school boards or state courts to order desegregation decrees.They do not limit the power of the Supreme Court to considerconstitutional questions.

o Congress has substantial power over the jurisdic-

tion and remedial powers of the lower federal courts. In

numerous instances, most notably with respect to the Norris-La Guardia Act, the Supreme Court has upheld legislative

restrictions on the power of the courts to issue injunctions.

O Mandatory cross-town busing has been destructive

of quality-education and the goal of desegregation. TheSupreme Court has held that busing may be limited by factors

of time and distance which would "risk the health of the )

children or significantly impinge on the educational process."

0 These provisions are within Congress' power

under Article III of the Constitution and Section 5 of the

14th Amendmcnt. They do not violate the Equal Protectionor Due Process Clauses.

0 The restrictions on Department of Justice author-

ity, while unnecessary and unduly restrictive of Department

discretion, are not unconstitutional. The Department retains

ample authority to enforce civil rights statutes.

LIMITS ON SUPREME COURT'S APPELLATE JURISDICTION

o S. 1742, limiting Supreme Court appellate juris-

diction over cases involving prayer, raises fundamental

and difficult constitutional questions regarding the role

of the Supreme Court. Prominent constitutional scholarshave reached different conclusions.

Folder: Gray Binder #1 [No Title]Series: Correspondence Files of Ken

Starr, 1981-83Acc. #60-88-0498 Box 15

RG 60 Department of Justice

o After careful and lengthy analysis, the Attorney

General has concluded that Congress may not, consistentwith the Constitution, make "exceptions" to Supreme Courtappellate jurisdiction which would intrude on the core func-tions of the Supreme Court as an independent and equal branchin our system of separation of powers.

0 Various factors must be considered in determin-ing whether the core function would be invaded by particularlegislation including whether constitutional issues wouldbe withheld from the Court, the need for uniformity of resultsamong the states, the extent to which Supreme Court reviewis necessary to ensure supremacy of federal law and whethersuitable alternative forums have been left in place.

° If Congress determines to consider S. 1742 fur-ther, it may wish to do so in light of the Attorney General'sanalysis of the constitutional issues and the factors enun-ciated by.him.

° The legislative record, debates in Congress,and committee reports are important analytical tools andfinal Attojxney General analysis is necessarily predicatedon completion of that process.

° As a policy matter, the Department of Justicehas grave concerns over the withdrawal of Supreme Courtappellate jurisdiction over classes of cases. The integrityof our federal system depends upon a single court of lastrescrt having final say on the resolution of federal ques-tions.

0 Ultimately it is for Congress to enact lawsand for the Executive to defend them unless clearly unconsti-tutional or an infringement on Executive Branch powers.If S. 1742 were enacted, the Attorney General would defendits constitutionality in the courts.


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U.S. Department of JusticeOffice of Public Affairs

fice of the Director May 6, 1982

AGDAGAssociateOlsonbRseMcConnellLeeStarrMorrisLezarHabichtRobertsKuhlStewartFeinHiller

Attached is the information provided to theWhite House today--all but the talking pointswere provided to the press at noon for releaseat 1 p.m.

Tom DeCair


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U.S. Department of Justice

Office of the Solicitor General

4

Washington, D.C. 20530

November 10, 1981

MEMORANDUM

,The Attorney General

/re E. LeeG/C\ Solicitor General

According to my notes, the attached pages deal with thematters whose discussion I was assigned. Other matters --looking to the future as well as the past, and emphasizingthat this is not a dispute between the judiciary and thecourts -- are dealt with by my earlier suggested answers toArt Brill's questions.

cc: Edward SchmultsDeputy Attorney General

Theodore B. OlsonAssistant Attorney GeneralOffice of Legal Counsel

Kenneth W. StarrCounselor to the Attorney General

Tex LezarSpecial Counsel to the

Attorney General

John RobertsSpecial Assistant to the

Attorney General

Thomas P. DeCair, DirectorOffice of Public Affairs


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To:

From:

CZ-

-IL-

STOCK, GENERAL ANSWER TO BE USEDAS OPENING LINE OF DEFENSE TO ANY SPECIFIC QUESTION

I am glad that you asked about that. My speech tomembers of the Federal Legal Council dealt with an importantsubject. It is somewhat unfortunate that concentration onindividual phrases and sentences taken out of context havediverted attention from the central message of that speech,which has to do with the allocation of governmental poweramong the three branches of government.

The separation of powers principle, which lies at thebedrock of our Constitution, teaches that the basicresponsibility of the elected branches -- particularlyCongress and the state legislatures -- is to make policy.That is, their responsibility is to decide what is best forthe people who elected them, and to make the difficulttrade-off choices between competing policy objectives.

The stewardship of the courts, by contrast, is overinterpretation of the laws, including the Constitution. Irecognize full well that the distinction between policy-making and constitutional interpretation is not always afine, bright one. But the central message of my speech wasfine and bright: in those cases where constitutionalinterpretation has The effec o displaing fundamentalpolicy oces made bthe legislatures, courts should errQILH e-aie 0o aoing-less rather than more.

There are two basic reasons. The first is that theelected branches are, by definition, more responsive to thepeople whom they serve. If the people disagree with thedecisions that their legislators make, the people can havetheir own impact on policy in November of each even-numberedyear. The second reason for favoring legislative decision-making over judicial decision-making in those areas wherelawmaking and constitutional interpretation overlap is thatlegislatures by their nature are more effective policy-makers than courts. They are better suited to the task.Probably the principal difference is that legislatures haveunlimited fact-finding capability. Courts, by contrast, arelimited to the facts that are presented to them by theparties to a lawsuit, whose interests may be far narrowerthan those of other people whom the broader policy mayaffect.


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STOCK ANSWER CONCERNING FUNDAMENTAL RIGHTSAND/OR SUSPECT CLASSIFICATIONS

The words "fundamental rights" make a very attractivelabel. It sounds like the kind of thing that no one couldoppose, because everyone is in favor of rights, and"fundamental rights" must be the most important ones. Butjust as the phrase is very attractive, it is also inapt, asused in this context.

As used in the context of constitutionalinterpretation, "fundamental rights" means that some rightsare more important than others and since it is the judgeswl6-odetermine which rights occupy the preferred position,"fundamental rights" has simply become a euphemism for thesubst_i ion of judicial judgment for legislative judgme-nt.

With regard to suspect classifications, the net effect,once again, of designating a classification as "suspect" isto shift more authority from the legislatures to thecourts. As I stated in my speech, we believe that there isone classification that deserves special treatment, and thatclassification is race. The reason, of course, is that itis very clear that the purpose of the Fourteenth Amendmentwas to guarantee against racial discrimination.


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JUSTICIABILITY

This is a term that refers to the constitutionallimitation on the kinds of cases that federal courts mayconstitutionally consider. Article III of the Constitutiondeclares that the federal courts may consider "cases orcontroversies". "Justiciability" is the term that issometimes used to describe this limitation. It is alsoreferred to simply as the case or controversy limitation.

The Supreme Court has stated that the case orcontroversy requirement includes four elements: (1)standing, (2) ripeness, (3) lack of mootness and (4) absenceof a political question.

Both statistically and doctrinally, the most importantof these is the standing requirement. Basically, standingto sue means that in order to invoke the federal judicialmachinery, the plaintiff must show that he has sufferedpersonal "injury in fact." The standing requirementhighlights one of the fundamental differences between thecourts, on the one hand, and the political branches ofgovernment, on the other. One of the well-established rulesof standing, for example, is that the plaintiff must beinjured more narrowly, and in a more specific way than theinjury to the populace as a whole. If the plaintiff'sinterest is merely an interest in seeing a particularphilosophy of government prevail, it is the kind of interestthat can be taken to the elected branches of government, whoare free to entertain it. Courts, by contrast, decideissues not because they are of interest to the courts or tosome, individual citizen. They decide them only as thoseissues arise in actual lawsuits brought by persons who areinjured in fact, which means an injury more specific thanthe effect shared by the populace as a whole. Because itpermits judicial decisions to be made only in actuallawsuits in which some person is specifically injured, thestanding requirement is probably the most important featurethat distinguishes the courts from other branches ofgovernment. It is also the most effective check on judicialpower -- the feature that prevents courts from ever becominggeneral overseers of government.

Ripeness has to do with lawsuits that are not adversaryin nature because they have been brought too soon. That is,they involve an attack on a statute before the statute hasever been applied. The political question doctrine, unlikethe other three elements of case or controversiness(standing, ripeness, and mootness) concentrates on thesubstance of the question presented, and teaches that thereare some kinds of issues which by their nature ought not bedecided by the courts. The rules here are far from clear,and about the most that can be safely said is that some


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issues pertaining to (1) the internal operation of otherbranches of the government (2) the conduct of foreignaffairs, and (3) the adoption and ratification ofconstitutional amendments are political questions.


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SOME OF THE CASES THAT HAVE ESTABLISHED FUNDAMENTAL RIGHTS

As pointed out in the speech, many of the fundamentalrights are not specified in the Constitution itself, buthave been read into it. Among these are:

1. The right to travel (Shapiro v. Thompson,which held unconstitutional a New Yorkstatute requiring a minimum waitingperiod in order to become eligible forwelfare benefits.)

2. The right to marry (Zablocki v. Redhail,holding unconstitutional a Wisconsinstatute preventing marriage by personswith existing support obligations forminor children unless and until theyestablished that those obligations hadbeen adequately taken care of.)

3. The right to procreate (Skinner v. Oklahoma,invalidating an Oklahoma law requiringsterilization of persons convicted threetimes of a crime involving moral turpitude.)

4. Right of privacy in sexual matters(Griswold v. Connecticut, invalidatingConnecticut's law prohibiting thedissemination or use of contraceptivesby anyone, including married persons,and Roe v. Wade, invalidating Texas'abortion laws.)


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A COMMENT ABOUT PRIVACY

The word "privacy" is not to be found anywhere in theUnited States Constitution. It is true that some of theconstitutional guarantees are rooted in values to which thelabel "privacy" might be attached. Examples are the FouthAmendment's guarantee against unreasonable searches andseizures, the Fifth Amendment's privilege against selfincrimination, and some of the First Amendment guarantees.

Nothing in the Constitution says, or even vaguelyimplies, however, that the existence of some rather specificguarantees, arguably privacy related, means that anyinterest to which the label "privacy" might properly beapplied as a matter of acceptable English usage is therebyconstitutionally protected. The Court itself does notbelieve that, and has not practiced it, as evidenced by itsdecisions dealing with private obscenity (Paris AdultTheatre v. Slaton, holding that Georgia could regulatetheatres showing obscene movies, even though the onlypersons affected were consenting adults) and homosexualconduct. (Denial of certiorari in case upholding a statelaw prohibiting homosexual conduct.)

In these privacy cases, and many others, thegovernmental decisions that have to be made are choicesbetween competing values. The right to marry case is a goodexample. On the one hand, the person who has been marriedbefore and has children certainly has an interest inremarriage. But there is a legitimate competing interest,the interest of his children in seeing to it that theirparent's new venture into matrimony does not impair theirability to survive. Who is to say that one of these sets ofinterests are more important than others? That kind ofinterest balancing, choosing between competing policies andcompeting values, is the kind of thing that under our systemfalls within the stewardship of legislatures. Moreover,legislators are better qualified to perform those tasks.


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A QUOTE FROM JUSTICES POWELL, HARLAN AND HOLMESCONCERNING THE PROPER ROLE OF THE COURTS

(In U.S. v. Richardson, 418 U.S. 166, 180, 189 (1974),Justice Powell, in a separate concurring opinion, stated:

"The argument that the Court should allow un-restricted taxpayer or citizen standing under-estimates the ability of the representativebranches of the Federal Government to respondto the citizen pressure that has been responsiblein large measure for the current drift towardexpanded standing. Indeed, taxpayer or citizenadvocacy, given its potentially broad base, isprecisely the type of leverage that in ademocracy ought to be employed against thebranches that were intended to be responsiveto public attitudes about the appropriateoperation of government. 'We must as judgesrecall that, as Mr. Justice Holmes wisely observed,the other branches of the Government are ultimateguardians of the liberties and welfare of theeople in quite as great a degree as the courts.'"Justice Powell was quoting from Justice Harlan'sopinion in Flast v. Cohen, 392 U.S. 83 (1968),which in turn quoted Justice Holmes in Missouri,Kansas & Texas R. Co. v. May, 194 U.S. 267, 270.)


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�w64OFFICE OF

THE ATTORNEY GENERAL

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Starr, 1981-83Acc. #60-88-0498 Box 15


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Office of Public Affairs


November 10, 1981

MEMORANDUM FOR THE ATTORNEY GENERAL

FROM: Tex Lezar

SUBJECT: Politicizing the Courts

Should anyone ask whether your Reston Speech urges thecourts to follow the election returns, I would suggest aresponse like the following:

"Far from urging the courts to follow the electionreturns, I urged a return to neutral principles basedupon the Constitution rather than a judge's desire toreach a particular result. The principle of judicialrestraint -- and its practice by the courts -- would domore to protect the independence of the judiciary andto ensure popular support for its decisions than anyother principle that could be urged upon the courts.Unrestrained intrusion by the courts upon the domain ofthe political branches is the real cause of theirpoliticization. My speech announced our plan to urgethat realization upon the courts -- when we appear in court --to urge them to restrain themselves from entering the arenaof political policymaking."

cc: Rex LeeEd SchmultsTed OlsonKen StarrJohn RobertsTom DeCair


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O


Office of Legal Counsel

Office of theAssistant Attorney General


1 2 NOV W

MEMORANDUM TO THE ATTORNEY GENERAL

The following is a suggested response, for discussionpurposes, to a question which might arise out of the Restonspeech relative to a Constitutional right of privacy.

Enclosure

cc: Edward C. SchmultsRex E. LeeKenneth W. StarrThomas P. DeCairTex LezarJohn Roberts

Theodore B. Olson

'e''


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O

Is there a constitutional right to privacy?

A. There are numerous rights articulated in the

Constitution, including the right to be secure

in our homes, the right to be free from

unreasonable searches, the right not to testify

against oneself and the right to worship as one

pleases, which provide the citizens of this

nation with protection from governmental

invasions of privacy. What we are concerned

about is the unreasonable and unlimited extension

of certain specific protections in order to create

rights which the founders of the Constitution

simply did not contemplate and did not place in

the Constitution. This process leads to the

proliferation of judicial participation in areas

that the Constitution leaves to the legislatures

which are the best qualified bodies to deal with

these problems.


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Q.

Q. In your speech you criticized federal courts for exceedingtheir proper authority and going beyond their abilitiesin fashioning equitable remedies in a broad range ofareas -- desegregation, prisons, housing, employment, andso on. Could you give us specific examples of instancesin which courts went too far?

A. I want to emphasize that my address looked to the future,not the past. Our concern is with urging appropriaterestraint on judges in future cases, not dwelling on pasterrors or difficulties. Increased judicial activism ispervasive and I'm certain everyone has their own favoriteegregious examples. I'll simply cite two instances inwhich the Supreme Court itself chastised lower federalcourts for exceeding appropriate bounds just last year.In the case which reversed a lower federal court rulingthat double-celling of prisoners violated the Constitution,the Supreme Court specifically noted that the considerationsrelied on by the District Court "properly are weighed bythe legislature and prison administration rather than acourt." The High Court also stressed that "courts cannotassume that state legislatures and prison officials areinsensitive to the requirements of the Constitution."

F °A .In another case the Supreme Court reversed a districtcourt judge who imposed detailed construction requirementsand timetables on a local sewer system. The Supreme Courtruled that any such requirements should be set by legis-latures or expert agencies, not courts using "vague andindeterminate nuisance concepts and maxims of equity juris-prudence." The Court stressed that the planning problemswere too complex for the courts and not suited to case-by-,case development.

These examples also illustrate that concern about judicialactivism is felt in the highest levels of the federaljudiciary itself. In many areas our effort is simply toguarantee that lower courts heed the admonitions of theSupreme Court.

C


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Q. Your reference to Finley Peter Dunne's character Mr.

Dooley suggests you intend to politicize the courts. Is

this wise?

A. There has been some misunderstanding about this. The

courts are affected by political changes not because they

follow the election returns, but because the election

returns affect the sort of arguments which the government

will be advancing in the courts. The courts retain the final

decision, but the arguments we advance will reflect the

policies of the government we represent. Remember the

context in which the speech was delivered -- it was

an address to the governments' lawyers, to guide them in

present arguments to the courts.

I) CrLs /-y"1 ,

) )tMuA-r 4V44C4 1


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Q. In your address to the Federal Legal Council you decried

judicial activism and then noted several arguments your

Department would be pressing on the courts, including urging

them to rethink past approaches. Aren't you really just

asking courts to be activist in a different direction?

A. Not at all. The arguments which I indicated we would be

making are all addressed to the proper institutional role of

the courts, not to any particular result on the merits.

Regardless of one's views on the merits of a dispute, a

concern for the proper role of the courts requires strict

adherence to justiciability doctrines, limits on judicial

policy-making, and limits on the scope of remedial decrees.


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Q. Give an example of your new approach to standing.

A. One clear area of change is in environmental litigation.

It was the policy of the previous Administration not to

raise standing challenges in environmental litigation

without a prior effort to accommodate opposing counsel. As

a result, standing objections were rarely raised. Assistant

Attorney General Dinkins reversed this policy upon assuming

office. We also recently stressed a standing challenge in a

case before the Supreme Court in which a taxpayer sought to

contest a government transfer of land. The standing

requirement is critical in that it distinguishes between

those with concrete, particularized grievances who may see-

redress in the courts and the general citizen who should

raise his complaint in the legislature.w_ ..... -


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c')e4a7h

Q. What's so bad about "fundamental rights" such as the

right to travel and the right of privacy?

A. Stated abstractly as in your question, nothing. The

problem is that since these so-called fundamental rights are

found nowhere in the Constitution their meaning in any

particular case is essentially left to the unbounded

imagination of lawyers and judges. A "right to privacy" may

sound acceptable, but just last Term it was argued to the

Supreme Court that this right prevented states from

requiring doctors to notify parents prior to performing an

abortion on their minor daughter. The Court rejected the

argument, but it illustrates the extent to which the

"fundamental right" label can encourage judicial

interference with legislative determinations.


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Q. Does your resistance to arguments based on "suspect

classes" mean that you will not bring or support reverse

discrimination suits, which typically argue preferences to

minorities are unconstitutional because they discriminate on

the basis of the suspect criterion of race?

A. ?

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Q. Is it appropriate for the Attorney General to be

attacking the courts as you did in your speech?

A. My address was not an attack on the courts, but simply

an outline of arguments which government lawyers will be

making to halt undesirable trends. Many judges have

expressed the same concerns about judicial activism in

dissenting opinions, and just last Term the Supreme Court

itself stressed its recognition that the members of Congress

take the same oath to uphold the Constitution that the

Justices do. In short,there is no "pro-court" or

"anti-court" position on these questions. There is no

clearer way to guarantee the health and independence of the

judicial branch than to seek to confine it to its proper

sphere.


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kllCC*Y

Q. You did not discuss in your speech the pending proposals

to divest the federal courts of jurisdiction in the areas of

abortion, school prayer, and busing. What is your position

on these proposals?

A. The proposals raise serious questions both as to

constitutionality and wisdom, on which eminent scholars

disagree. The Department has been considering these issues

but we have not as yet reached a final determination.


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Memorandum

Suhjcct

Judicial Restraint Drafts

To Kenneth W. StarrCounselor to theAttorney General

I

From John Roberts ^Special Assistant tothe Attorney General

Attached are a long (scholarly?) and short (op-ed) pieceon the Attorney General's program to combat judicial activism-- the long and short of it, if you will. Both drafts couldstand some polishing but I wanted to run them by you now tosee if they were on the right track. Should the AG reviewthese now in preparation for his Triday interview, or simplyfor his comments?

-j


Starr, 1981-83Acc. #60-88-0498 Box 15


Date

November 24, 1981

�

A

It is one of the most important responsibilities of theAttorney General of the United States to scrutinize and commentupon the activity of the federal courts. It is also hisresponsibility to direct the litigation priorities of theDepartment of Justice attorneys who represent the United Statesin court. I exercised both of these related functions in anaddress delivered last October to the Federal Legal Council, agathering of leading government attorneys from the Department ofJustice and other federal agencies. In that address I announceda conscious effort to combat the excesses of judicial activism.

At the outset it should be made clear that the announcementand implementation of such a program, while obviously based onperceived excesses of the past, should not be viewed as any sortof "attack" on the courts. As Chief Justice Taft recognizedlong ago:

"Nothing tends more to render judges careful in theirdecision and anxiously solicitous to do exact justicethan the consciousness that every act of theirs is tobe subject to the intelligent scrutiny of their fellowmen, and to their candid criticism . . . . In the caseof judges having a life tenure, indeed, their veryindependence makes the right freely to comment ontheir decisions of greater importance, because it isthe-only practical and available instrument in thehands of a free people to keep judges alive to thereasonable demands of those they serve."

Chief Justice Stone reiterated these themes: "I have nopatience with the complaint that criticism of judicial actioninvolves any lack of respect for the courts. When the courtsdeal, as ours do, with great public questions. the only protectionagainst unwise decisions, and even judicial usurpation, is care-ful scrutiny of their action and fearless comment upon it."

Congress and the Executive can be checked by the judiciarywhen they exceed their powers, but the judiciary is unique amongthe three branches in that it is the judge of its own power. AsJustice Stone put it, "the only check upon our own exercise ofpower is our own sense of self-restraint." United States v.Butler, 297 U.S. 1, 79 (1936) (dissenting opinion). In suchcircumstances it is incumbent upon the other branches to aidthe courts in their exercise of self-restraint. This is preciselywhat the Department of Justice will be doing in the arguments itslawyers present in litigation.

A conscious litigation effort directed to curbing judicialjactivism should not be viewed as an effort to politicize the lcourts. The federal judiciary is an independent branch of


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government, purposefully and carefully insulated by the Framersfrom popular pressure. The reason the courts were insulatedfrom popular pressure, however, was precisely because theirfunction was not conceived to embrace policymaking. Responsibilityfor policymaking in a democratic republic must reside in thosedirectly accountable to the electorate. Alexander Hamilton,writing in The Federalist No. 78, noted that there could be "noliberty, if the power of judging be not separated from thelegislative and executive power" and that judges may not "onthe pretense of a repugnancy . . . substitute their own pleasureto the constitutional intentions of the legislature." Thegreatest threat to judicial independence occurs when the courtsflout the basis for their independence by exceeding theirconstitutionally limited role and engaging in policymakingproperly committed to the elected branches or the states. Byurging courts to observe appropriate self-restraint and avoidintrusions into the domain of the other branches, we will betaking significant steps to secure their independence. <yT

Our concern is not so much with results in particular casesas it is with the institutional role of the courts in our federalsystem and the scheme of separation of powers. Our effort, thereforewill focus on the procedures and approaches which help define thejudicial role. We will, specifically, urge courts to observestrictly the requirements of justiciability, avoid particulardevices for testing the constitutionality of laws which permitready irntrusion into the domain of the legislature, and exerciserestraint in the formulation of equitable decrees.

A focus on these areas, directly related to the role ofthe courts rather than the merits of any particular dispute,evinces a concern that does not depend upon political exigencies.Throughout history and to this day both liberal and conservativeinterests have sought to enlist an activist judiciary in the achieve-ment of goals which were not obtainable through normal politicalprocesses. In the Lochner era, for example, it was conservativeswho urged judicial activism under the banner of due process tostrike down popular enactments. The evils of judicial acitivismremain the same regardless of the political ends the activismseeks to serve.

As noted, the key areas in any focus on judicial restraintare rules about what cases should be decided by courts, howcourts should review the constitutionality of enactments, andhow they should exercise their power in ordering relief. Thefirst area, justiciability, is critical in distinguishing betweenthe proper role of the courts and the legislature. The Framersdid not give federal courts a roving commission to review actsof Congress. Proposals were in fact advanced which would havegiven the judiciary a general advisory role, through participation


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in a "Council of Revision," but these proposals were repeatedlyrejected. Courts are limited by Article III to deciding livedisputes presented to them by parties with a concrete and particu-larized interest in the outcome. Rules of standing limit judicialrecourse to those suffering a particularized injury; thosesuffering only generalized harm should present their grievanceto the legislature and seek redress through the political process.Justice Harlan wisely noted that easing requirements of standing"may involve important hazards for the continued effectivenessof the federal judiciary." Flast v. Cohen, 392 U.S. 83, 130(1968)(dissenting opinion). As courts ease requirements ofstanding they assume the burdens of functioning as a legislature,a role specifically denied them by the Framers of the Constitution.

A second means by which courts arrogate to themselvesfunctions reserved to the legislative branch or the states isthrough so-called "fundamental rights" and "suspect classes"analyses, both of which invite broad judicial scrutiny of theessentially legislative task of classification. Federal courtsmust, of course, exercise their function of determining theconstitutionality of enactments when the issue is properlypresented in litigation. In discharging that responsibility,however, courts also must, in the words of Justice Frankfurter,have "due regard to the fact that [they are] not exercising aprimary judgment but [are] sitting in judgment upon those whoalso have taken the oath to observe the Constitution and who havethe responsibility for carrying on government." Joint Anti-Facist Refugee Committee v. Grant, 341 U.S. 123, 164 (1951)(concurring opinion). Courts cannot, under the guise ofconstitutional review, restrike balances struck by the legis-lature or substitute their own policy choices for those of electedofficials.

Two devices which invite courts to do jl2st that are "funda-mental rights" and "suspect classes" review. It is of coursedifficult to criticize "fundamental rights" in the abstract. Allof us, for example, may heartily endorse a "right to privacy". Thatdoes not, however, mean that courts should discern such anabstraction in the Constitution, arbitrarily elevate it over otherconstitutional rights and powers by attaching the label "fundamental"and then resort to it as, in the words of one of Justice Black'sdissents, "a loose, flexible, uncontrolled standard for holdinglaws unconstitutional." Griswold v. Connecticut, 381 U.S. 479,521 (1965). The broad range of rights which are now alleged tobe "fundamental" by litigants, with only the most tenuous connectionto the Constitution, bears ample witness to the dangers of thisdoctrine.

Analysis based on "suspect classes" presents many of thesame problems. Classifications based on race are suspect and domerit careful scrutiny, in light of the historic purpose of the


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Fourteenth Amendment. Extension of heightened scrutiny to other

"insular and discrete" minorities, however, represents an unjusti-

fied intrusion into legislative affairs. As with fundamental

rights, there is no discernible limit to such intrusion. As one

Justice has put it: "Our society, consisting of over 200 million

individuals of multitudinous origins, customs, beliefs, and

cultures is, to say the least, diverse. It would hardly take

extraordinary ingenuity for a lawyer to find 'insular and discreet'

minorities at every turn in the road." Sugarman v. Dougall, 413

U.S. 634, 657 (1973) (Rehnquist, J. dissenting). Both "fundamental

rights" and "suspect classes" stand as "an invitation for

judicial exegesis over and above the commands of the Constitution,

in which values that cannot possibly have their source in that

instrument are invoked to either invalidate or condemn the countless

laws enacted by the various states." Weber v. Aetna Casualty

& Surety Co., 406 U.S. 164, 182 (1972)(Rehnquist, J. dissenting).

The last key area in which we will focus our energies is the

use of extraordinary equitable decrees. This is the all too

familiar problem of judges taking over the running of state

institutions, most notably prisons and schools. When confronting

constitutional problems in the context of the administration of

. state institutions, courts must be particularly cognizant of their own

lack of expertise, and the fact that the ad hoc approach inevitable

in litigation is often ill-suited to solving the complex and

intractable problems of institutional reform. The Supreme Court

has adverted to these concerns on many occasions. In Milliken v.

Bradley,-418 U.S. 717, 744-745 (1974), the Court expressed concern

over the scope of a remedial decree because it would make the

court a de facto legislative authority and school superintendent.

"This is a task which few, if any, judges are qualified to perform

and which would deprive the people of control of schools through

their elected representatives." Just last term the Supreme

Court criticized a lower court for relying on factors which

"properly are weighed by the legislature and prison administration

rather than a court." Our efforts in this area, both as a defendant

and in guiding the court as plaintiff or amicus curiae, will be

to ensure that the lower courts heed these wise admonitions.

The exercise of sound judicial restraint is of course

ultimately the responsibility of the judges themselves, but

it is incumbent upon the other branches of government to aid in

the endeavor. We in the executive branch will be doing our

part through the litigation program outlined above. We will

not only urge judicial restraint when we are defending the

federal government, but will also exercise self-restraint and

not rely upon arguments which promote judicial activism even

when such arguments might help us in a particular case. The

end of victory in any specific case does not justify the means of

encouraging illegitimate judicial activism.


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Congress also has a role to play. Too often Congressinvites judicial activism by open-ended statutory provisionsand by leaving significant questions unresolved in statutoryenactments. Congress must face up to its responsibilitiesand not leave significant policy decisions to be resolved inlitigation. Congress should also carefully consider theconstitutionality of its enactments, for, as the Court notedlast term in Rostker v. Goldberg, such careful considerationby Congress encourages heightened deference by the courts.

Finally, the legal profession itself has a responsibilityto urge courts to exercise responsible self-restraint. In allcandor the profession must recognize that there exists a possibleconflict of interest on this score. The expanding power andinfluence of the courts has meant a concomitant expansion ofthe influence and role of lawyers appearing before the courts.Individual members of the profession and professional organizationsmust constantly ask themselves if their positions are good forsociety or simply good for fellow lawyers.


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Last October 29, I spoke to the assembled general counselsof the various federal agencies about the new conscious effortby the Department of Justice to combat the excesses of judicialactivism. I announced that when representing the United Statesin court the attorneys under my direction would, wheneverpossible, urge courts to exercise judicial restraint and avoidintrusions into the domains reserved by the Constitution toCongress and the Executive by virtue of the separation of powersor to the states under our federal system.

Several editorial writers took umbrage at my remarks, \construing them as an outright attack on the courts or an effort /to foster their politicization. Despite some reports, I didnot urge the courts to follow the election returns. As I notedin my speech, the federal judiciary is an independent branchof government purposefully insulated from democratic pressures.The greatest threat to the independence of the judiciary occurswhen courts exceed their limited role and engage in policymakingwhich is committed to the popular branches of government. Policy-making by unelected jurists is troubling in a democracy andundermines the basis for judicial independence and insulationfrom popular control. By advocating the observance of neutralprinciples designed to deter courts from such policymaking, wewill be fortifying their independence.

Nor should my address have been viewed as an attack onthe courts. Here I need only turn to some of the most emminentof our tountry's jurists for defense. As Chief Justice HarlanStone remarked, "I have no patience with the complaints thatcriticism of judicial action involves any lack of respect forthe courts. When the courts deal, as ours do, with great publicquestions, the only protection against unwise decisions, andeven judicial usurpation, is careful scrutiny of their actionand fearless comment upon it." Judge Learned Hand went so faras to paraphrase Oliver Cromwell: "I should like to have everycourt begin, 'I beseech thee in the bowels of Christ, think thatwe may be mistaken.'" Careful scrutiny of judicial action andfearless comment upon it is a responsibility which no AttorneyGeneral should shirk for the false comforts of apathy.

Our campaign against judicial activism will proceed alongthree major fronts. The first is insisting that doctrines ofjusticiability -- which determine what cases are suited forjudicial resolution -- be scrupulously observed. We will, forexample, insist on enforcing rules of standing whereby onlysuits bought by those suffering a concrete and particularizedinjury are permitted. This doctrine draws a vital distinctionbetween the realm of the court and that of the legislature.Those with generalized complaints should present their case tothe legislature and political process, not a single judge.


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Second, we will resist the expansion of analysis basedon so-called "fundamental rights" and "suspect classes", devicesby which courts engage in broad intrusion into the legislativefield. This is an area in which positions are easily misunderstoodand misconstrued. Stated abstractly specific "fundamental rights"often sound palatable enough, but, as Justice Black once wrote,this mode of analysis represents "a loose, flexible, uncontrolledstandard for holding laws unconstitutional," one which portends"a great unconstitutional shift of power to the courts which

. .. will be bad for the courts and worse for the country."

Third, we will urge courts to exercise restraint in fashioningequitable decrees. Courts lack the resources and expertise toundertake executive functions, and many problems are ill-suitedto the case-by-case development necessarily ermployed by courts.Just last term the Supreme Court criticized one district courtfor undertaking tasks which were too complex and not amenableto ad hoc solution, and in a different case specifically notedthat considerations relied upon by a district court "properlyare weighed by the legislature and prison administration ratherthan a court." This indicates that concern about judicialactivism is felt not only by the people and their elected repre-sentatives but also in the highest levels of the federal judiciaryitself. In many areas our effort is simply to guarantee thatlower courts heed the admonitions of the Supreme Court.

By arguing that only appropriate cases be accepted forjudicial decision, resisting the employment of broad andflexible devices for holding laws unconstitutional, andurging courts to temper equitable decrees with an appropriatesense of their own limits as well as recognition of the good,faith and responsibilities of other government officials, we hopeto aid the courts in the exercise of judicial restraint andthereby ensure their independence. The courts are unique amongthe three branches of government in that it is their own senseof self-restraint, rather than the possibility of review byanother branch, which controls their exercise of power. It istherefore as much the responsibility of the executive branchto urge judicial self-restraint when appropriate as it is theresponsibility of the judicial branch to ensure that Congressand the Executive do not exceed their powers granted by theConstitution.


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Memorandum

Subject Date

Criticism of the Courts November 10, 1981

T The Attorney General F John RobertsSpecial Assistant tothe Attorney General

In addition to the quotation from Chief Justice Taft,here are several other judicial expressions recognizinga proper role for healthy criticism of the courts:

"It is a mistake to suppose that the Supreme Courtis either honored or helped by being spoken of asbeyond criticism. On the contrary, the life andcharacter of its justices should be the objectsof constant watchfulness by all, and its judgmentssubject to the freest criticism . . . . The moving

K wattYs are full of life and health; only in the stillwaters is stagnation and death." Justice Brewer,Govenment By Injunction, 15 Nat. Corp. Rep. 848,849 (1898).

"I have no patience with the complaint that criticismof judicial action involves any lack of respect forthe courts. When the courts deal, as ours do, withgreat public questions, the only protection againstunwise decisions, and even judicial usurpation, iscareful scrutiny of their action and fearless commentupon it." Chief Justice Stone, quoted in preface toSupreme Court Review (1961).

"Certainly, Courts are not, and cannot be, immune fromcriticism, and lawyers of course may indulge in criti-cism. Indeed, they are under a special responsibilityto exercise fearlessness in doing so." JusticeFrankfurter, dissenting in In re Sawyer, 360 U.S. 622,669 (1959).

cc: Rex LeeSolicitor General

Theodore B. OlsonAAG/Legal Counsel

Tex LezarSpecial Counsel to the AG

Kenneth W. StarrCounselor to the AG


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November 25, 1981

MEMORANDUM

: The Attorney General

: John Roberts, Special Assistant j-Z: Preparation for Interview with Fred Barbash

Attached are:

1. Q & A's on specific examples in each of thethree areas;

2. a copy of your Reston speech;

3. a copy of Judge Wilkey's letter.


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TO

FROM

RE

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II/ :;v 7I

Memorandum

Subject Date

Judicial Activism Q & A's: November 25, 1981Specific Examples

To From

The Attorney General John Roberts

Q. Could you give us a specific example of a case in whichyou think a court went too far in permitting standing?

A. This isn't just a question of what courts permit, but alsoinvolves what arguments we will be making as litigants. Asyou may know, certain parts of the Justice Department previouslyfollowed a policy of not raising standing challenges inthe most vigorous fashion. This was particularly truein the environmental area. It will be our policy toraise standing and other justiciability challenges tothe fullest extent possible.

If you insist on a specific example where we think acourt reached out beyond the proper bounds of standingto bring a dispute within its purview, I can cite youto a case which the Solicitor General just recentlyurged the Supreme Court to reverse. The case, ValleyForge Community College v. Americans United for theSeparation of Church and State, from the Third Circuit,^involved the transfer by the government of certainproperty to a religious school. The lower court ruledthat any citizen had standing to challenge the transaction,even in the absence of any specific injury to himpersonally. In urging the Supreme Court to reversethis decision, Solicitor General Rex Lee argued thatgranting standing to citizens who do not suffer distinct,particularized injury blurs the line between court andlegislature.

Q. Can you give us an example where you think courts haveerred in applying "fundamental'rights" or "suspectclasses" analysis?

A. Here, as in the other areas, I want to emphasize thatour concern is with the role of the courts and approachesto problems in general, rather than with particularresults on the merits. We are also more interested inurging proper approaches upon the courts in the futurerather than simply criiticizing what we may perceive tobe errors of the past.


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If you insist on an example, the case of Shapiro v.Thomspon may serve to illustrate our concerns in thisarea. In that case the Supreme Court relied upon theso-called "fundamental right to travel" to strike downstate laws imposing a one-year residency requirementbefore individuals could apply for welfare benefits.The court conceded that there was no explicit "right totravel" in the Constitution, fundamental or otherwise,and blandly stated that "we have no occasion to ascribethe source of this right to travel interstate to aparticular constitutional provision." As you mightrecall, Justice Harlan wrote an incisive dissent inthat case raising many of the same concerns which Iaddressed in my Federal Legal Council speech. Heargued that the Shapiro decision reflected a notionthat the court "possesses a peculiar wisdom all its ownwhose capacity to lead this Nation out of its presenttroubles is contained only by the limits of judicialingenuity in contriving new constitutional principles tomeet each problem as it arises." Its that very attitudewhich we are trying to resist.

Q. Do you have any examples of cases in which courts wenttoo far in fashioning remedial decrees?

A. In this area the Supreme Court itself has given us tworecent examples by reversing lower court decisionsprecisely because judges went beyond their properbounds. In the case of Rhodes v. Chapman, the SupremeCourt reversed a district court judge who requiredsingle celling of inmates, no matter what conditionswere like in the rest of the prison. The Supreme Courtspecifically criticized the district judge for followinghis own ideas about how to run a prison rather than the"cruel and unusual punishment" standard of the Constitution,and criticized him for examining factors which "properlyare weighed by the legislature and prison administrationrather than a court."

[Our position in the Texas prison case, Ruiz, is notinconsistent, since we are not arguing in that casethat single celling is always required, only on theparticular facts involved there, and we also argue thatdouble celling will be permissible if certain otherchanges are made.]

In another case, Milwaukee v. Illinois, the SupremeCourt reversed a district court judge who, relying uponfederal common law, imposed detailed and massive construction


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requirements and other specific obligations on a localsewer system. In the course of its opinion, the SupremeCourt noted that that the problems involved were toocomplicated for judicial resolution, and that they werenot suited to the case-by-case development necessarywhenever courts address problems.

cc: Deputy Attorney GeneralSolicitor GeneralKen StarrTex Lezar


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UNITED STATES COURT OF APPEALS

WASHINGTON, D. C. 20001

MALCOLM RICHARD WILKEYUNITED STATES CIRCUIT JUDGE

4 November 1981

TO: EditorNew York Times

Sir:

The difference in both tone and content between the AttorneyGeneral's remarks to the Federal Legal Council and your editorialon 3 November could not be more marked. Since both dealt with, andwill doubtless influence, the fundamental role of the judiciary inour tripartite representative democracy, a comment from a sittingjudge earnestly striving to fulfill his role properly may be appro-priate.

From the Attorney General's view of such constitutional ques-tions as "justiciability" I derived a sense of relief that henceforthwe judges would be asked -- at least by the Attorney General -- todeal with questions of law with discernible legal standards to guideus, issues with which by training, administrative facilities, andconstitutionally endowed powers we are well equipped to deal. Fromyour editorial I gather we judges ought to be thrust further intothe maelstrom of conflict in order to achieve much desired politicaland social goals which our elected representatives in the legislativeand executive branches have not been able to attain.

Let me suggest that we have here a confusion of means and ends.Your,editorial reflects the attitude of many persons, dedicated toachieving certain political and social goals but frustrated by theelective political process, who have turned to the courts as a meansof achieving their goals. My purpose is not to define these objec-tives nor to take issue with them; indeed, the obvious merit of mostand their resulting widespread popular support obscure the inappro-priateness of the chosen means. However, as one of the means youwould employ in achieving these ends I have more than an averagestake in the argument.

My concern is that the people's elected representatives, legis-lative and executive, are being bypassed. In our tripartite repub-lic the Constitution has placed decisions on economic and socialpolicy in the political branches, whose members must face periodicelection, not in a rather senior age group of seven hundred appointedfor life. No matter how meritorious the political and social ends,manipulating the judiciary as a means is bad constitutional practice.In contrast to other political and philosophical systems, Americantheory has never accepted a rationale that the end justifies themeans.


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Your editorial condemned the Attorney General's "speech -- ata time when the courts, and the Constitution, can use support."You might consider why it is that "the courts . . . can use support."The answer, I would suggest, is precisely 'that the judiciary hasstepped over the line from matters justiciable into the legislative-executive arena. It is this hyperextension of the judicial preroga-tive, and no more, that the Attorney General is asking be rectified.When we judges act within our constitutional competence, we aresupported; when we act outside that competence, then distrust, dis-respect, and active dislike of the courts set in, impairing ourability to perform with the confidence of the people even unquestionedjudicial tasks.

The title of your editorial, "Justice, Reaganized," implied thatthe Attorney General's concept of a role for the judiciary more lim-ited than in the immediate past has no antecedents but the currentadministration's electoral success. Well, hardly. Surely anyonewith an historical perspective knows that the concept of a limitedrole for the judiciary, of mutual self-respect among the three coord-inate and coequal branches of government, comes straight from TheFederalist of Madison, Hamilton, and Jay. And while Chief JusticeMarshall strengthened the role of the federal courts, he did so, notby trenching upon the prerogatives of the other branches, rather byexpanding the role of the whole federal government.

While we all know that The Federalist foresaw judicial reviewof legislative and executive acts for their constitutionality asessential in a government of limited powers under a written consti-tution, we should not forget that Hamilton wrote:

The courts must declare the sense of the law; and ifthey should be disposed to exercise WILL instead ofJUDGMENT, the consequence would equally be the substi-tution of their pleasure to that of the legislativebody.

To avoid an arbitrary discretion in the courts, itis indispensable that they should be bound down bystrict rules and precedents which serve to define andpoint out their duty in every particular case thatcomes before them; . . .

Hamilton's admonition has often gone unheeded by individual judgeswho delight in placing their philosophical stamp on society, evenin rather plain defiance of law previously put on the books by Con-.gress or other courts. Congress has frequently compounded the prob-lem by leaving difficult policy choices unresolved, inviting judicialintervention.


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It is true that throughout our history the Supreme Court hashad a limited policy role to play. But it has been limited --not merely by the Constitution, but by the (usually) careful judg-ment of the Nine in their unique position. Moreover, what the HighCourt can -- and sometimes should -- do in its position at the peakof the pyramid, where responsibility and accountability are instantlyand visibly fixed, is no model for the inferior courts. Seven hun-dred federal judges, and many thousand state judges, simply cannotwander all over the map in deciding what the law is or should be,or in performing managerial tasks for which the judiciary is sig-nally unsuited.

The judiciary serves best when it performs its constitutionallydefined role, not when it tries to solve all social problems unsatis-factorily handled by the other two branches. Even the ancientIsraelites grew tired of being ruled by Judges and in relief turnedto a King; what an irony if 1776 and 1787 should come to that here.

Very truly yours,

Malcolm Richard Wilkey

J.


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Documents

C TALKING POINTS APPROPRIATIONS AUTHORIZATION BILL …...Theodore B. Olson Assistant Attorney General Office of Legal Counsel Kenneth W. Starr Counselor to the Attorney General Tex