There’s an old song that says “two outta three ain’t bad.” But six out of seven is a lot better, so when it’s time to discuss the modern Supreme Court it’s only responsible to visit the man who accumulated that win-loss record arguing before that judicial body — “It’s the Super Bowl of American law,” he said — in his previous capacity as Attorney General of Oregon.
University President Dave Frohnmayer had plenty of ideas on the nature and direction of the Court, along with the constant need to relearn the importance of the First Amendment and the need for students to be informed on the top judiciary’s decisions.
“You start with the obvious truth that it’s the most powerful court in the history of recorded civilization,” Frohnmayer said. “It’s also, ironically, one of our most secretive institutions.”
But while there is not much debate on the power of America’s top court or its reclusive habits, there is a flurry of debate on the type of the bias demonstrated by the court. Legendary news man David Brinkley was known to say that something is only biased when you don’t agree with it, and with the highly controversial decisions put out by the Court in recent years it is hard to give it a traditional conservative or liberal spin.
However, there is one word that many use, including Frohnmayer, to label the current group — activist.
“Although some people say that it’s conservative, it has been an extraordinarily activist court,” he said. “First of all, it’s shown a willingness to strike down both federal and state legislation that appeared to impinge on the Court’s own authority.”
This can be a disturbing trend to many. While Frohnmayer pointed to the example of the Religious Freedom and Restoration Act, there have been others cases — such as the recent Dickerson v. United States — which have steamrolled Congressional ability to make laws in the areas where the court has previously ruled.
In the Dickerson case, the Court held that Congress could not pass a law that affected the Court’s previous ruling on police use of Miranda rights. The problem for some, however, is that the Miranda rights were never enacted by Congress but rather instituted by the justices, meaning the Court is now striking down laws by elected officials in favor of their own rulings.
But there is another clear trend, according to Frohnmayer.
“Over the last decade it’s shown a real eagerness to redefine the concept of federalism in terms of limitations on Congressional power, in particular,” he said.
Whereas the previous notion was of allowing the Congress to exercise supreme power, Frohnmayer said now that’s changed.
“So both in striking down Congressional legislation and reasserting federalism and reasserting its own role, I’d call this an activist court,” he said.
With such a powerful and active body setting the legal tempo of the country, and the odds against the average student knowing the goings on of the Court, it’s important that the subject is taken more seriously by a greater number of students.
“It’s Civics 101,” the president said of the need for education on the subject to exist in all states of public school.
But the president did call the high levels of awareness and debate around the recent Southworth case “gratifying.” The case led students from all points of view to research, explore and argue about the role of student fees to fund student groups on campus.
In the end, after all the analysis on the nature and biases of the Court, the final thought must be a Frohnmayer quote warning that the Court, while important, is not the end-all, be-all of jurisprudence because the Court is still a body designed to interpret and uphold the Constitution.
“Constitutional law is more than what the Supreme Court says it is.”