What happened to cries for judicial restraint?
by Anthony Lewis
A FAVORITE CONSERVATIVE
theme for years has been the
danger of "activist judges," the need
for "judicial restraint.'' Attorney
General William French Smith charged recently that federal courts have
increasingly intruded upon the
policy-making functions of Congress,
the president and the states.
There has always been reason for
skepticism about the purity of conservatives' devotion to the ideal of a
passive judiciary. Was it really philosophy that moved them, or rather
the results in particular cases? Well.
now we know. When a judge breaks
the usual bounds and reaches a decision pleasing to conservatives, they
forget about restraint and cheer.
The philosophical pretensions have
been stripped away by the lawsuit
over the proposed Equal Rights
Amendment to the Constitution. A
federal judge in Idaho. Marion Callister. decided that case against the supporters of the amendment. His decision was in several respects
extraordinarily unrestrained, sidestepping doctrines that limit judicial
power. But BRA opponents did not
stop to worry about that.
It's a great victory for constitutional integnty and fairness." Phyllis
Sehlafly said. And when the Justice
Department indicated that it
appeal the decision, Mrs. Sehlafly and
other leading figures of the right
wrote President Reagan urging him to
quash any such move.
The ERA case illuminates the whole
question of when judges should withhold their hand The public*»which
likes nothing better than a great con-
.stitutjonartest in the courts, has
always found HL hard lo understand
why judges sometimes refuse to decide those cases.
"The most important thing we do is
not doing,'' Justice Louis D. Brandeis,
a liberal who was a stickler, for the
rules, once said. He was expressing
the conviction that courts should be
careful in invoking their great power
to bold government action unconstitutional.
Callister held unconstitutional the
1978 act of Congress extending until
June 30. 1982. the time for states to
ratify the ERA. He held that the Idaho
Legislature, which approved the
amendment and then voted the other
way. had effectively nullified its ratification. And then, reaching beyond
the Idaho case that was before him. he
said any other state rescinding its approval "may not be counted" for the
Those substantive issues in the case
are seen by some legal scholars as
political questions — ones the courts
do not decide, leaving them instead to
the political process. Whether a state
may rescind its ratification of an
amendment, especially, seems to fall
within the traditional definition of a
only "injury" claimed by the Idaho
legislators who brought the ERA suit
is that Idaho's vote is entered wrongly
on a list kept by officials in Washington — which may well not be enough
for standing under the precedents.
And there is another hurdle that has
to be passed before a court considers
either standing or substantive issues.
A case must Be "ripe" for decision.
This is one of the technical rules with
Brandeis said, courts will not "anticipate a question of constitutional law in
advance of the necessity of deciding
It is very hard to see how the ERA
case was ripe for decision by Callister.
Not one state has ratified the amendment since Congress extended the
time. Unless three more do so by June
30, the amendment will die anyway —
and ail the debated legal questions
will be irrelevant. To decide the case
in those circumstances looks like giving an advisory opinion, and federal
judges are constitutionally forbidden.
to do that.
That is the issue — ripeness — that
Justice Department lawyers are now
particular!v studying. The department
tradiUooauy, opposes premature constitutional decisions m the. courts. To
oner that asks me Supreme Court to
vacate Callister's decision.
Of course, conservatives are not the
only people who talk hypocritically'
about judicial "activism" and "restraint." Liberals, too. tend to find >
reasons for decisions they like. The;
piety just happens to be especially
thick on the conservative side these .
But intervention by judges does
have more justification in some cir
cumstances than others. Justice Lewis
F. Powell said in 1974 that "the irre-
placeable value" of our system of
judicial review lies "In the protection
it has afforded the constitutional
rights and liberties of individual citi
zens and minority groups against op-
pressive or discriminatory govern-
ment action not In "some
amorphous general supervision of the
operations of government.''
Lewis is a cokunaist for the New York
Times and Pulitzer Prat winner for na-
Reagan below Carter's
record in hiring women
WASHINGTON (AP) - President Reagan hasn't
matched his predecessor's record of appointing women
to key government and judicial posts during his first
year in office, the National Women's Political Caucus
Reagan put 30 women in top-level jobs, compared to
31 nominations by President Carter during 1977, an
NWPC analysis showed Tuesday. But it was in judicial
appointments where there was a significant difference
between the two.
Even though he appointed Sandra Day O'Connor to be
the first woman on the Supreme Court, Reagan has an
"abysmal" record on naming women to the judiciary,
NWPC chairwoman Kathy Wilson said. Of 44 judicial
appointments, only two were of women, she said.
Ms. Wilson, a Republican, said Reagan has not only
appointed fewer women, but also they have been named
to lower-ranking jobs.
Reagan has maintained that despite his opposition to
the Equal Rights Amendment, he* supports women's
rights and believes in women's competence.
David R. Gergen. director of White House communications, said Reagan has appointed 140 women to full-
time jobs, presidential boards and commissions.
WASHINGTON (UPI) - What kind of big-
spender could unload l.5 trillion? Rep. James
Jones, DOlka., oflared a folksy explanation about
a inan who couldn't do it
Discussing Presfcfeot Reagan's spending blueprint for the Defense Department, which calls for
1.5 trillion in military expenditures over five
years, Jones presented a parable of sorts.
"If someone was going to spend a million dollars a day, hegmnmg on the day Christ was born
1,9(82 years ago, a million dollars a day through
the Dark Ages, the Middle Ages, throuan the Age
of Enlightenment, the industrial revolution and
modern era — every day spending a million dollars — he would only spend half of what we're
asking the Pentagon to spend over the next five
years," Jones said.
Jones was almost right The spree he described
would, through today, have resulted in almost
1904 billion in expenditures - 60 percent of $1.5
Jones, chairman of the House Budget Committee, appeared on CBS* Face the Nation
A trillkio is one thousand billions, or out million
millions. It Is 1,000,000,000,000.