The Sword and the Robe

In 1987, Justice Marshall delivered a speech called “The Constitution: A Living Document.” Living constitutionalism is the view that justices should interpret the Constitution in light of changing social circumstances. Can Marshall’s position that the Court is by necessity insulated from “changing public concerns” be reconciled with living constitutionalism? Why is it important that justices do not publicly comment on their “favored solutions for society’s problems”?
Compare Marshall’s position to Meese’s. In what ways do their views of the justices’ roles differ? In what ways are they similar?

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Introduction

Republicans and conservatives increasingly viewed the Supreme Court under Chief Justice Earl Warren (1891–1974; Chief Justice 1953–1969) not as a neutral arbiter of constitutional questions but as an activist institution bent on amending the Constitution. This was most true of their view of the Warren Court’s decisions on the rights of the accused such as Miranda v. Arizona (1966). As a result, Republican presidents such as Richard Nixon had promised to appoint “strict constructionists” who would not engage in such alleged judicial freelancing. At best Nixon was only partially successful. With Ronald Reagan’s presidential victory in 1980, however, the country had seemed to move in a more conservative direction, and once again crime was a central political issue. Further, Chief Justice Warren Burger (1907–1995), a Nixon appointee and Warren’s successor, had delivered a speech in February 1981 lamenting that while there were “massive safeguards for accused persons” courts had failed to provide “elementary protection for its decent, law abiding citizens.”

Thurgood Marshall, the legal architect of Brown v. Board of Education (1954) and the nation’s first African American justice, worried that this new political environment would lead to an erosion of the rights of the accused. In his “Sword and Robe” speech, seen as a direct response to Burger before the Second Circuit Judicial Conference, Marshall discussed the necessity of judicial neutrality, particularly when considering the rights of criminal defendants. While Congress is supposed to “pick sides” while crafting legislation, the Supreme Court must remain neutral. Judges are not supposed to guarantee the conviction and imprisonment of criminals, but to guarantee that justice is applied to each case. The framers created Congress and the Executive to respond to changes in public opinion, but the third branch, the judiciary, was “intentionally isolated from the political process and purposely spared the task of dealing with changing public concerns and problems.” In what seemed almost an attack on Chief Justice Burger, Marshall stated that justices should not publicly advocate for their favored solutions to society’s problems but should leave that work to the other two branches of government. As the Court’s first black justice, Marshall indicated in this speech how he viewed both his role as a justice and the burgeoning conservative legal movement.

—Joshua Dunn

Source: Marshall, Thurgood (1990) “Remarks Made at the Second Circuit Judicial Conference, September 8, 1989,” Trotter Review: Vol. 4 : Iss. 3 , Article 2. https://scholarworks.umb.edu/trotter_review/vol4/iss3/2


. . .The task of interpretation is the cornerstone of the judicial process. As we undertake it, we must strive for neutrality. None of us is perfect, and I recognize that neutrality is more ideal than real. Each of us brings along to the judicial role certain preconceived biases. It is, I suppose, impossible to make a decision totally uninfluenced by them. But we as judges must try to do so to the extent we possibly can.

This ideal of neutrality is particularly hard to maintain in times such as these, when our society faces major unsolved problems. Indeed, we judges are frequently criticized these days for our neutrality. For example, it is argued by some members of our society that the judiciary has not taken an active enough role in combating crime. It is urged that we as judges should take sides, that we should stand shoulder to shoulder with the police and prosecutors. Convictions should be easier, appellate review more rapid, and resort to habeas corpus—what the founders of this republic called the Great Writ—drastically curtailed. All of this frightens me, because when I was in law school, I was taught not that judges were there to see the defendant convicted and punished in every case, but that they were there to see justice done in every case. Of course the state had to carry a heavy burden to obtain a conviction. Of course appellate judges would weigh each case carefully. Of course an individual, once convicted, could attack his sentence later. This, so I was taught, was not to coddle the guilty but to protect the innocent. I was raised in the days when the prevailing maxim was: “It is better that a thousand guilty people go free than that one innocent person suffer unjustly.”

Well, that’s just what I was taught, and maybe I was taught wrong. But the suggestion that we as judges take sides frightens me for another, more fundamental reason as well. As I have said, judges are required in our system to be as neutral as they possibly can, to stand above the political questions in which the other branches of government are necessarily entangled. The Constitution established a legislative branch to make the laws and an executive branch to enforce them. Both branches are elected and are designed to respond to ever-changing public concern, and problems. Indeed, as we were reminded just last November, the failure of either branch to respond to the will of the majority can quickly be remedied at the polls.

But the framers of the Constitution recognized that responsiveness to the will of the majority may, if unchecked, become a tyranny of the majority. They therefore created a third branch—the judiciary—to check the actions of the legislature and the executive. In order to fulfill this function, the judiciary was intentionally isolated from the political process and purposely spared the task of dealing with changing public concerns and problems. Article III judges1 are guaranteed life tenure. Similarly, their compensation cannot be decreased during their term in office—a provision, as we have recently seen, that certainly has its tangible benefits. Finally, the constitutional task we are assigned as judges is a very narrow one. We cannot make the laws, and it is not our duty to see that they are enforced. We merely interpret them through the painstaking process of adjudicating actual “cases or controversies” that come before us.

We have seen what happens when the courts have permitted themselves to be moved by prevailing political pressures and have deferred to the mob rather than interpret the Constitution. Dred Scott, Plessy, Korematsu, and the trial proceedings in Moore v. Dempsey come readily to mind as unfortunate examples.2 They are decisions of which the entire judicial community, even after all these years, should be ashamed. There have also been times when the courts have stood proudly as a bulwark against what was politically expedient but also unconstitutional. One need only recall the school desegregation cases to understand why this ability to stand above the fray is so important.

Our central function is to act as neutral arbiters of disputes that arise under the law. To this end, we bind ourselves through our own code of ethics to avoid even the appearance of impropriety or partiality. We must handle the cases that come before us without regard for what result might meet with public approval. We must decide each case in accordance with the law. We must not reach for a result that we, in our arrogance, believe will further some goal not related to the concrete case before us. And we must treat the litigants in every case in an evenhanded manner. It would be as wrong to favor the prosecution in every criminal case as it would be to favor the plaintiff in every tort suit.3

We must never forget that the only real source of power that we as judges can tap is the respect of the people. We will command that respect only as long as we strive for neutrality. If we are perceived as campaigning for particular policies, as joining with other branches of government in resolving questions not committed to us by the Constitution, we may gain some public acclaim in the short run. In the long run, however, we will cease to be perceived as neutral arbiters, and we will lose that public respect so vital to our function.

I do not suggest that we as judges should not be concerned about the problem of crime. Every thinking American is worried about it. And just about all of us have lurking somewhere in the back of our minds what we consider the ideal solution. But when we accepted the judicial mantle, we yielded our right to advocate publicly our favored solutions for society’s problems. The tools for solving these problems are in the hands of the other branches of government because that is where the Constitution has placed them. That is also where we should leave them. I therefore urge that you politely disregard any suggestion that you give up the robe for the sword. . . .

Footnotes
  1. 1. Judges appointed under Article III of the Constitution.
  2. 2. For Dred Scott, see Speech on the Dred Scott Decision and Speech at Springfield, Illinois; for Plessy, Plessy v. Ferguson. In Korematsu v. United States (1944) the Court held that the presidential order excluding Japanese from some areas of the United States was constitutional. Moore v. Dempsey (1923) was a case that arose from trial proceedings in Arkansas in which African Americans were convicted.
  3. 3. A case in which there is a legal claim for loss or damages.
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