To the Editor:

I would like to comment on the exchange of views [Letters from Readers, February] between Raoul Berger, author of Government by Judiciary: The Transformation of the Fourteenth Amendment, and Elliott Abrams, who reviewed Mr. Berger’s book [Books in Review, December 1977]. . . .

Aside from their rhetorical jousting, Messrs. Berger and Abrams appear to be in fundamental disagreement over what they conceive to be the limits on judicial power. Mr. Berger takes the position that the only legitimate exercise of constitutional interpretation resides in the Constitution and the intent of the Founding Fathers. The framers recognized that a nation must have machinery for changing the Constitution to meet the needs of future generations and provided, under Article V, a procedure for amendment. If that procedure is difficult, it was meant to be because of the deep concern, widely shared by the Founders, that government power must be not only diffused and checked but limited. In recent times, according to Mr. Berger, the judiciary has overstepped the limits imposed by the Constitution.

Mr. Abrams’s reply is that Mr. Berger’s position is a rather extreme one and that it leads to the conclusion that any and all constitutional interpretations by the Supreme Court are tantamount to illicit amendments of the Constitution. Mr. Abrams argues that judicial power can be restrained without the restrictive doctrine of judicial interpretation offered by Mr. Berger. He names two such restraints on the judiciary: Congress and public opinion.

The difficulty with Mr. Berger’s position is that it tends to impose severe limits on what we have come to think of as a “living” Constitution. Yet there is little evidence to support Mr. Abrams’s proposition that Congress and the public exercise effective restraint on the judiciary. (Impeachment does not appear to be an effective option for imposing judicial restraint.)

While Article III of the Constitution grants Congress the power to make exceptions to appellate jurisdiction, that power, in fact, has rarely been used. Congressional attempts to curb the appellate jurisdiction of the Warren Court proved fruitless. And even if such an action did come to pass, it would be the Supreme Court that would decide on its constitutionality. Mr. Abrams does not offer any examples of how Congress, with its broad power over the jurisdiction of federal courts, has used that power to limit the judiciary.

This leaves the public, or “public opinion,” as the sole guardian against judicial excesses. But unlike the elected branches of government, the Court is immune, for the most compelling reasons, from public discipline by the ballot box. . . . How then does the Court, which is isolated from the political process, gain its insight into what the public is thinking? I assume Supreme Court Justices and federal judges find out about public opinion from newspapers, periodicals, television, and books, and from contacts with a limited group of associates and friends. On might argue, however, that these sources are more representative of the perceptions and values of the “New Class” than of those of the public at large.

It is easier to state that public opinion acts as a restraint on the Court’s power than it is to explain how it does so or to prove its effectiveness. If the dominant class agrees with the results of the Court, it does not question the Court’s reasoning, which is probably why the Warren Court was able to render highly political decisions on the thinnest constitutional grounds. There are, in addition, many academics who rationalize the Court’s exercise of power on the basis of their agreement with its decisions.

Walter Berns has made the point that one of the main reasons judges have forgotten the constitutional limits of their office is that law schools do not offer a course on the Constitution and the principles of free government. Instead, they teach “Constitutional Law,” which is a course on the Supreme Court and its power. It is clear that in academic circles neither Mr. Berger’s nor Professor Berns’s view of constitutional limits prevails. Although the dominant view might not be shared by Mr. Abrams, it has gained wide acceptance in the legal profession, among judges, and among those who support judicial activism. . . .

Leonard J. Theberge
National Legal Center for the Public Interest
Washington, D. C.

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Elliott Abrams writes:

I am grateful to Leonard J. Theberge for his comments. His point is well taken: the restraints on the judiciary which I mentioned, namely, the Congress and public opinion, are difficult to measure, and their effectiveness may be doubted. Yet I would maintain that they have served as a check upon the Court, and that without them the judges (surrounded, in Mr. Theberge’s view, by friends and associates who hold an expansive view of judicial power) would have gone further than has been the case. To take one example: the logic of the Supreme Court’s recent “separation of church and state” decisions would seem to imply difficulties for tax deductions for contributions to churches, and difficulties for the survival of the motto “In God We Trust” on our coins. Yet neither is in danger, for a decision to outlaw either would surely produce a congressional and public reaction of enormous strength. One may, and I do, suppose that the Court knows this and therefore stays its hand.

Similarly, I believe that the school-busing decisions might have gone much further than they did, and might have come to involve large-scale suburb-to-inner-city busing as the only practical means of integrating inner-city schools, had not agitation in Congress and clear public sentiment made this course one the Court would have taken at its peril. I cannot prove it, as only the Justices’ memoirs will, perhaps, some day reveal their thoughts. Nonetheless, I think Mr. Theberge goes too far to suggest that, absent clear and tangible evidence, the influence of Congress and of public opinion should be discounted.