The Law: The Need for Reasons

THE Nixonian rubric laid upon the Burger Court is "Strict construction of the Constitution." If history is any guide, critics will soon accuse the court of ignoring this mandate in favor of personal opinions or even partisan politics. And the shrewdest critics will be the nation's ablest court watchers—the legal scholars who often find the court guilty of faulty legal reasoning.

Scholars have lambasted court rulings that go back as far as the seminal Marbury v. Madison decision (1803), which asserted the court's power to overturn congressional legislation. They gasp at the Dred Scott case (1857), which denied that a Negro could be a U.S. citizen. They are still apoplectic over Koreinatsu v. U.S. (1944), complaining of its shabby justification for interning 70,000 Japanese-American citizens. Just as they winced throughout the Warren years, they are beginning to look askance at the Burger era. Says University of Chicago Law Professor Philip Kurland: "We have no evidence yet that the new court will afford principled opinions justifying its conclusions. Evidence to date suggests rather that it will emulate the Warren Court in this regard."

What if it does? Who besides a few law professors and commentators really cares about "principled" decisions? Isn't a decision itself far more important than any arcane reasoning that might justify it—especially if the public applauds?

In fact, sound reasoning is crucial to the nation's stability, because it buttresses the Supreme Court's authority as the final umpire that rules on claims to power—whether by states against federal agencies, or by government against individuals. Sound reasoning validates the court's role as interpreter of the Constitution, mediator of national experience, symbol of values that transcend politics.

One of the Supreme Court's great tasks is moderation, the accommodation of rival interests and especially so in a nation undergoing explosive social change. Unless decisions are explained with sufficient care, lower courts may be unclear about the broad principles they are supposed to apply in particular cases. When the Supreme Court scants reason in favor of mere results, says Stanford's Gerald Gunther, a decision may be "valid only as long as you have a majority of five votes. As the reasons get weaker, a later judge is freer to follow his own likes and dislikes. A decision is then easier to overturn."

According to Chief Justice Charles Evans Hughes, "the Constitution is what the judges say it is." But saying what it is in a highly disciplined way—making exact distinctions, refining a principle to fit diverse cases—that is the high art judges are chosen to practice. Deluged with 3,500 cases a year, expected to write more than 100 often highly complex decisions, Supreme Court Justices may understandably disappoint their critics. Indeed, many critics (joined by Chief Justice Burger) endlessly urge the court to cut its workload, accept only truly vital cases and take more time for reflection.