Judicial independence and power. What the courts can -- and cannot -- do

PRESIDENTS have often been surprised by the votes cast by the very judges they appointed to the United States Supreme Court. President Theodore Roosevelt appointed Justice Oliver Wendell Holmes to our highest court, believing that he would be an antitrust jurist, only to learn very early that the Great Yankee from Olympus did not share the President's views about antitrust matters. President Eisenhower appointed Chief Justice Earl Warren and Justice William Brennan. The President discovered, to his great chagrin, that these outstanding jurists departed very widely from his concepts about our constitutional safeguards. President Truman appointed Justice Tom Clark, a trusted adviser and his attorney general. All accounts indicate that this feisty President was outraged when Justice Clark voted against Truman's seizure of the nation's steel mills. The decisions of the Burger court, by and large, are further proof of the unpredictability of presidential judicial appointees.

True, the Burger court is nibbling away at Miranda restrictions on interrogation; narrowing the exclusionary rule; limiting the safeguards of the Fourth Amendment; tolerating some breaches in the wall of separation between church and state; restricting resort to the great writ of habeas corpus; proving somewhat tolerant about coerced confessions; and cutting back on others of the Warren court's decisions, particularly in the area of the rights of the accused in criminal cases.

But! The Burger court, with the votes of some and in certain cases all of the recent ``conservative'' appointees, has never totally overruled Miranda. It has reaffirmed Reynolds v. Sims -- one person, one vote; ordered President Nixon to turn over the Watergate tapes; outlawed silent prayer and the instruction of public school children in parochial schools; legalized abortions; sanctioned busing as a permissible tool to eliminate segregation in public schools; and declared publication of the Pentagon Papers to be protected by the First Amendment.

The Burger court has not been as ``conservative'' as ``liberals'' feared or rightists hoped. And, I predict, the same will be true of virtually all the federal judges who have been or may yet be appointed by President Reagan.

This leads to a discussion of repeated attempts to categorize justices as ``liberal,'' ``activist,'' or practitioners of ``judicial restraint.'' The President and Attorney General Edwin Meese criticize judges labeled ``liberal'' or ``activist'' on grounds they overstep proper bounds, but the terms are not illuminating.

The most ``activist'' Supreme Court in our history was the ``nine old men of the '30s.'' They usurped the power to invalidate virtually all of President Roosevelt's and Congress's New Deal legislation. And this court was perhaps the most conservative of all times.

By way of contrast, the so-called ``liberal'' and ``activist'' Warren court, in Ferguson v. Skrupa (1963), declared: ``We refuse to sit as a superlegislature to weigh the wisdom of legislation, and we emphatically refuse to go back to the time when courts [struck down laws] regulatory of business and industrial conditions, because they may be unwise, improvident, or out of harmony with a particular school of thought.'' Surely, this opinion is a very model of judicial restraint. And the writer of it was none other than that outstanding ``liberal'' jurist, Hugo L. Black.

It is true that all courts, present and past, are activists in enforcing the liberties enshrined in the Bill of Rights, as distinguished from social and economic privileges.

But in light of the language of the Constitution, they cannot, in fidelity to our fundamental law, do otherwise.

The Bill of Rights is explicit in its terms. ``Congress shall make no law respecting an establishment of religion . . . or abridging the freedom of speech, or of the press. . . . The right of the people to be secure . . . against unreasonable searches and seizures, shall not be violated . . . No person . . . shall . . . be deprived of life, liberty, or property, without due process of law; . . . the accused shall enjoy the right . . . to have the assistance of counsel for his defense . . . [and] cruel and unusual punishments [shall not be] inflicted.''

Surely, it would appear that judicial activism in these areas is mandated.

Paradoxically, Attorney General Meese appears to be a closet believer in the Cult of the Robe. While denigrating decisions of the court, he exaggerates the role of the judiciary in our constitutional scheme. The late legal scholar Alexander M. Bickel termed the judiciary ``the least dangerous branch of our government.''

The mistaken belief that judicial law can fundamentally change our social and economic institutions is evidenced by the flood of young men and women to our law schools. This reflects commendable idealism and does give the bar new voices that should be heard. It is necessary, however, to bear the limitations of the judicial process in mind. Although judicial law can do many things, judges cannot establish social and economic justice by judicial fiat.

The courts can do nothing about the deficit, inflation, high interest rates, and unemployment; it is up to the President and Congress to provide the remedy. Yet, the consequences of the failure to reduce the deficit, curb inflation and high interest rates, and check unemployment may be even more menacing to our democratic institutions than the clear danger to them of Watergate. The fate of the Weimar Republic is a stark example.

The courts cannot balance the budget. Only the executive branch and Congress can.

The judiciary cannot seek to persuade the Soviet Union to negotiate an acceptable SALT II treaty, as envisioned by President Reagan. But our very survival depends upon staying the hand of the nuclear clock.

Judges cannot bring peace to the Middle East -- a problem of the utmost significance, which thus far has defied the best efforts of the executive branch.

The judiciary lacks the power of the purse and the sword.

Even in the area of judicial competence, like enforcing the Bill of Rights, we must never overlook the profound teaching of Judge Learned Hand: ``. . . a society so riven that the spirit of moderation [liberty] is gone, no Court can save; a society where the spirit flourishes no Court need save.''

The attorney general ignores what may be at the very heart of the issues he has raised.

Our Constitution is an instrument of practical government. It is also, and more important, a declaration of faith in the spirit of liberty, freedom, and equality.

The ultimate safeguard of our liberty is the people. They are the source of our Constitution. Its first words are: ``We, the people of the United States, in order to . . . secure the blessings of liberty to ourselves and our posterity do ordain and establish this Constitution for the United States of America.'' The people are the ultimate guardians and protectors of our liberty, not the president, not Congress, and not the judiciary.

And we the people, if we are to keep our constitutional faith, must always recall the admonition of Thomas Paine: ``Those who expect to reap the blessings of freedom must . . . undergo the fatigue of supporting it.'' hur J. Goldberg is a former justice of the United States Supreme Court. Second of two articles. The first appeared yesterday.