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Archibald Cox: His legacy

By Robert S. Sargent, Jr.
web posted June 28, 2004

No man can be sure that he may not be tomorrow the victim of a spirit of injustice, by which he may be a gainer today. -- Alexander Hamilton

Archibald CoxOn May 29, this year, Archibald Cox died. He is best known as the special prosecutor who subpoenaed 9 tapes of Richard Nixon in the Watergate break-in and cover-up. Rather than comply, Richard Nixon had him fired. Both the Attorney General, Elliot Richardson and his deputy, William Ruckelshaus resigned and it was left to the solicitor general, Robert Bork, to fire Cox. These resignations and the firings on October 20, 1973, became known as the "Saturday Night Massacre." While his term as special prosecutor was important, I believe his legacy is in his teachings.

Between government jobs (Solicitor General, Chairman of the Wage Stabilization Board, etc.), Mr. Cox taught Constitutional Law at Harvard and influenced generations of future attorneys and judges.

If you isolate his writings, Mr. Cox was an eloquent spokesman for judicial neutral application of the law. "…the need of a free society… [is] for a legal system that binds the judges as well as the litigants. Without the last, judges would indeed be despots. In the end, I think, they would also lose their authority, for the authority rests upon the people's belief that the courts indeed are deciding ‘according to law.'" And: "Ideally, the federal Judicial branch ought not to enlarge its own jurisdiction simply because Congress and State governments have failed to solve the problems confided to them." And: "Constitutional government must operate by the consent of the governed. Judge-made law draws no authority from the participation of the people."

These quotes are taken from his books "The Court and the Constitution," and "The Warren Court." Frustratingly, these quotes are always followed by a "but." "But government, even law, is sometimes…pragmatic." "On the other hand, the Court must meet the enduring human needs and aspirations of its times." "But [judges] must also make law upon some occasions."

Why did Archibald Cox have two minds about the law, one ideal and one pragmatic? He felt that the liberal reforms of the Warren and Burger Courts were so important that, when legislatures wouldn't act, the Court had to step in. The techniques of the activist Court in the areas of reapportionment, rights of accused, rights of privacy, and other areas, Mr. Cox justifies by one opinion: Brown v. Board. Archibald Cox and other defenders of activist methods argue that the opinion in Brown, which outlawed segregated schools, couldn't have been reached without creating new law and ignoring precedent. A committee of 9 "conservative" Justices would have left the law, "separate but equal," stand. Nonsense.

First of all, stare decisis, the concept that precedent stands, has never been consistently observed by liberal or conservative Justices. It is not uncommon in constitutional history for opinions to be overturned. The second statement that the Warren Court made new law is wrong. Plessy v. Ferguson, the 1896 decision holding that "separate but equal" segregated schools were constitutional, was a bad decision. Nothing could be clearer than the Equal Protection Clause of the 14th Amendment. It simply doesn't allow the states to have different race-based laws, and the 14th Amendment came before Plessy v. Ferguson. In Brown the Warren Court was merely upholding the law of the 14th Amendment.

Even if Mr. Cox felt that isolated activism was necessary, the dangers he warned about should have put him in the "ideal" school of constitutionalism rather than the "pragmatic."

The Constitution is a legal document. It does not allow for judges to make law, only legislatures are given this power. When activist judges don't feel bound by the restrictions of the words in the Constitution, they risk losing their authority and legitimacy: "The power of legitimacy, which induces voluntary acceptance of Supreme Court decisions, rests largely upon the understanding that the justices are applying a law that binds them no less than the litigants."

Another danger Mr. Cox points out are the dangers of politicization. "The future of judicial review probably depends in good measure on whether the view that law is only policy made by courts carries the day in the legal profession, or whether room is left for the older belief that judges are truly bound by law both as a confining force and as an ideal search for reasoned justice detached so far as humanly possible from the interests and predilections of the individual judge. The heavily policy-oriented view not only carries the dangers of the ‘despotism of an oligarchy' of which Thomas Jefferson spoke, but it cuts off the taproots of judicial independence and legitimacy." What could be a more eloquent pleading for an ideal, neutral approach to constitutionalism, and yet he praised the policy-oriented approach of the Warren Court!

And finally, Mr. Cox warns that future Justices may use the activist techniques to further a conservative agenda. "[Future conservative Justices]…will have to choose between institutional restraint and a form of judicial activism not very different from the activism of their immediate predecessors (the Warren and Burger Courts) albeit in pursuit of conservative rather than liberal policy goals." Well, he taught his students that sometimes it's okay to be pragmatic and bend the rules, but he should have taught them the Hamilton warning.

Whatever gains activism has brought (and I don't count Brown v. Board an activist decision) the dangers are too great. Look at the disgusting hijinks of the Judiciary Committee in the Senate: a direct result of the politicization of the judiciary.

Archibald Cox was a decent and fair man, but wrong on his views of occasional pragmatism. But how right he was on his observances and warnings of a judiciary that is not neutral and doesn't only apply the law!

Robert S. Sargent, Jr. is a senior writer for Enter Stage Right and can be reached at rssjr@citcom.net.

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