(This is the concluding chapter from "Defending Rights: A Life in
Law and Politics")

                                CHAPTER 22

             REFLECTIONS ON A LIFE AS A CONSTITUTIONAL LAWYER

     When I was graduated from law school in 1966 and began to
teach and practice constitutional law, it was exhilarating to
believe that my conception of constitutional rights and the duty of
the judiciary to enforce them were relatively consistent with those
held by a majority of those who had the final say in such matters
-- the members of the Supreme Court of the United States.
     It was a time when the Supreme Court was making it
increasingly clear that racial discrimination was not to be
tolerated; that freedom of speech and association occupied a
preferred position in our legal value system and trumped almost any
governmental claim of a need to suppress it; that notions of
fundamental fairness required that individuals be given a fair and
impartial hearing before they could be punished or otherwise harmed
by the actions of public officials; that police and other
government agents were required to respect personal privacy; and
that criminal defendants could insist upon their rights under the
Constitution, even at the price of freedom for the guilty.  Even
the right of women to assert autonomy over their own reproductive
processes, though not yet formally acknowledged, was clearly on its
way to constitutional recognition.  
     It was the time when Justice William O. Douglas had proclaimed
-- without contradiction from his colleagues on he high court --
that the basic purpose of the United States Constitution was to
keep government off of the backs of the people.  And, most
importantly, it was a time when the Court was making it clearer
with each new decision that it was the essential role of the
federal courts to shape judicial remedies which would best
effectuate such constitutional values.
                                 *   *   *
     Our federal judicial system has not always been a bulwark for
individual rights.  For much of our country's history, the United
States Supreme Court, like most of the country's judicial system,
was an instrument of the status quo populated by conservative
lawyers who were mainly concerned with the protection of vested
property interests and the maintenance of social order.  Remember,
it was the United States Supreme Court which, in the middle of the
Nineteenth Century in the Dred Scott case, reaffirmed the property
rights of slave owners in human chattel and ruled that persons of
African dissent in this country had no rights which a white person
was bound to respect.  After the Civil War, it was the Supreme
Court which vitiated the new 13th, 14th and 15th Amendments and
declared that black people could not be the social equals of
whites.
     Some individual early Justices (such as Oliver Wendell Holmes
and Louis Brandeis) began to articulate broader visions of the
Constitution, but it was not until the Roosevelt revolution and
FDR's opportunity to appoint a new breed of social thinkers to the
Supreme Court that the federal courts began to take on a broader
role.  By the early 1940s, a new progressive majority was taking
shape and beginnning to take interest in the federal Bill of
Rights, which had lain largely dormant for most of the years since
the founding of the republic.  However, this new constitutional
spirit was cut short before the end of the decade as a result of
the untimely deaths of Justices Wiley Rutledge, Frank Murphy and
Harlan Fiske Stone and their replacement by President Truman with
Justices of little social vision or concern.  Thus, it wasn't until
Dwight Eisenhower appointed Earl Warren and William Brennan Jr. to
the Court in the mid-Fifties that the high tribunal again picked up
the baton of individual rights jurisprudence.
     After I established the Constitutional Litigation Clinic at
Rutgers Law School in 1970, I used to tell my clinic students that
in their other classes they would look at the law as it was and ask
why.  But in the Clinic, we looked at the law as it never was and
asked why not.  Inspired by the willingness of the Warren Court to
measure constitutional claims not only against conservative
precedents, but also against democratic aspirations, we were part
of the burgeoning public-interest law movement which was developing
novel theories to expand the frontiers of freedom and equality. 
And while we often met resistance from dull and reactionary hold-
over district court judges, we more often than not found receptive
ears on the appeals court in Philadelphia, which was much more
attune to the changing constitutional winds blowing north from
Washington.
     Of even greater importance, the Warren Court was not only
changing the nature of constitutional law, it was changing the face
of the bar.  Inspired by the new social-change jurisprudence,
idealistic young men and women who once shunned legal careers for
the humanities and social work started flocking into the law
schools.  By the late Sixties, law schools like Rutgers were
crowded with students who had spent the mid-part of the decade as
the foot soldiers of the southern civil rights movement.  They were
now looking forward to entering a new burgeoning professional field
-- public interest law.  Those were heady days for those of us who
believed deeply in the promise of a Constitution which guaranteed
maximum individual autonomy, protecion for minorities threatened by
majoritarian institutions and minimum government interference with
personal freedom.
                                 *   *   *
     Not everyone shared this vision of constitutional right.  By
1968, Richard Nixon campaigned for President against the Warren
Court.  He promised to appoint to the Supreme Court "strict
constructionists."  Nobody knew exactly what a strict
constuctionist was, but it was obviously a code word for judges who
would reverse the Court's decisions protecting the rights of
criminal defendants as well as those of racial minorities.  At
times, the phrase was meant to convey something about respect for
"states' rights" -- but that also was intended to mean little more
than the right of state officials and state courts to deny
constitutional protection to criminal defendants or to victims of
discrimination.
     The Republican onslaught of the Seventies and Eighties was
successful in two main particulars: (1) it wrecked the federal tax
system in the interest of the rich and well off and so enlarged the
national debt as to make it virtually impossible for future
national administrations to fund meaningful social programs; and
(2) it set back federal jurisprudence more than half a century,
taking it back almost to a time when the major function of the
federal courts was to umpire the financial disputes between
competing corporate interests.  
     The Burger and Rehnquist courts have not only eroded essential
constitutional rights and aborted the development of doctrine which
would have extended constitutional protection to fundamental
economic-based interests such as the right to education, food,
shelter and a job.  Even more significantly, they have reversed the
central assumption of the Warren Court that federal courts have an
obligation to entertain claims of constitutional violation and to
provide remedies for their enforcement.  In the first landmark
decision of the Supreme Court 200 years ago, Marbury vs. Madison,
Chief Justice John Marshall explained that constitutional
principles were meaningless unless courts were prepared to declare
them and provide remedies for their breach -- that without adequate
remedies there were no legal rights.  The Warren Court took that
principle seriously, and in its most important rulings instructed
federal courts to provide effective remedies to redress
constitutional violations.  The Burger and Rehnquist courts have
effectively dismantled the federal system of constitutional
redress.  The earliest and clearest example was the case of Rizzo
vs. Goode, in which Justice Rehnquist held for a majority of the
Court that federal courts could no longer order systemic reform of
local police departments in order to protect the constitutional
rights of the citizenry. 
     Richard Nixon's very first judicial nominee, Chief Justice
Warren Burger, told us what was in store shortly after his
appointment.  In an interview with the New York Times, Burger
warned those idealistic young men and women who were entering law
school in order to make a difference in people's lives that they
were embarked on the wrong course.  He emphasized the law as an
instrument of the status quo, and suggested that the young
idealists go back to social work and the humanities.
     The conservative movement did not leave effectuation of
Burger's vision to chance.  Over two decades, right-wing corporate
foundations have poured mega-millions of dollars into campaigns
aimed at influencing both the personnel and the decisions of the
federal judiciary.  One of its major undertakings was the
establishment of The Federalist Society, an organization of right-
wing lawyers, teachers and law students which was used as an
employment office for a succession of Republican administrations
and the think tank for the development of a right-wing legal
ideology.  With large sums of money available and a pipeline to
jobs in the federal government and as clerks to federal judges, the
Federalist Society was able to establish chapters in most major law
schools.  On a campus such as Rutgers, the favorite activity of the
Federalist chapter was agitation against the Minority Student
Program and crude attacks upon the minority students themselves. 
The Federalists claim as their favorite sons Chief Justice
Rehnquist and Associate Justices Scalia and Thomas, as well as
would-be Justice Robert Bork.  
     The aim of the right wing-crusade was not limited to a roll-
back of constitutional entitlements.  Its corporatist sponsors were
equally concerned about protecting business interests from populist
juries which tend to be overly willing to compensate maimed and
injured parties for damage caused by consumer products and
professional malpractice.  Thus, the right-wing legal agenda
includes support for caps on monetary awards in products liability
cases, opposition to punitive damages and restrictions on the types
of testimony admissible in court to support damage claims.  The
hypocrisy of conservative politicians is no better demonstrated
than in the efforts of right-wing members of Congress, who normally
champion the cause of "states rights", to federalize tort law and
strip state courts of jurisdiction in an area traditionally left to
local regulation.  
     However, what the conservative legal movement failed to
accomplish is almost as significant as its successes given the fact
that it controlled just about every Supreme Court appointment for
a quarter of a century -- the lone exception being the appointment
of John Paul Stevens by Gerald Ford during his brief interregnum
presidency following Watergate and Nixon's resignation.  Justice
Stevens was a moderate Republican who did not have the active
support of the radical right.  (Jimmy Carter, President from 1977
through 1980, never got to appoint a member of the Supreme Court.) 
     Of course, some of their selections -- most notably Justice
Blackmun -- turned out to be disappointments to their right wing
sponsors.  But I believe that was as much a consequence of public
revulsion against the conservative agenda as miscalculation by the
political gurus of the right.  The fate of Robert Bork perfectly
illustrates that principle.  Bork was the only one of the right-
wing's nominees who clearly and publicly expounded the conservative
agenda.  As a result, he became politically unacceptable.  
     I suggest that the same thing happened to large parts of the
conservative's substantive agenda.  Even lifetime-appointed Supreme
Court justices have a constituency to answer to.  That constituency
is first the bar from whence they come; secondly the social and
cultural elite with whom they mix; and third, the general public
whose acclaim they desire.  Nobody likes to be a pariah.  Faced
with disapproval from close associates and disdain from others,
only the hardiest ideologue remains true to the faith.  It turned
out that only Rehnquist, Scalia and Thomas adhered strictly to
radical right-wing orthodoxy.   The nation was fortunate that Bork
was not permitted to join them.  Thus, for example, a woman's right
to choose abortion has withstood the right-wing's assault. 
Abrogation of the right was just too unpopular in too many circles
-- especially among the bar and the media opinion molders.
                                 *   *   *
     I explain to my students that the ethical rules counsel them
against trying their cases in the media.  I further explain that I
have probably won as many cases in my press statements as in my
briefs.  My favorite example is a case involving the right of a
long-haired, 12-year-old Little Leaguer to play in the all-star
game without getting a hair cut as ordered by the league
commissioner.  I needed a temporary restraining order to require
that my client be allowed to play in the game scheduled for the day
of the court hearing.  I had my students stay up all night writing
a brief on the constitutional right of personal appearance.  But I
also tipped off the local reporters about the interesting dispute
which would be heard the next morning in the New Jersey Chancery
Division.  When the judge called the hearing to order,
representatives of all of the local papers were in court, pencils
at the ready.  When the judge issued his ruling from the bench, it
was obvious that he was not addressing me or my adversary, but the
assembled reporters.  "This boy's hair is no longer than Sparky
Lyle's" (the then-New York Yankee relief ace), His Honor intoned. 
"It is my ruling that the plaintiff be allowed to play in the all-
star game."
     It had always been a great puzzlement to me that one of the
most far-reaching civil rights decisions of the Supreme Court had
been a unanimous opinion written by Chief Justice Burger in a case
called Griggs vs. Duke Power Co.  For years, Griggs became the
basis for most successful employment discrimination law suits.  
Yet before and after Griggs, Chief Justice Burger never gave anyone
reason to believe that he was a friend of civil rights. Then I read
"The Brethren," the book by Woodward and Armstrong about the inner
workings of the Supreme Court.  It was a revelation.  The authors
explained that Burger had been stung by public criticism of his
antipathy to civil rights and unfavorable comparisons of him to
Earl Warren, the author of the unanimous opinion in Brown vs. Board
of Education.  They reported that he had resolved to demonstrate
that he was just as much in favor of civil rights as Earl Warren
was and, as a result, orchestrated it so he could write a strong
pro-civil rights opinion.   He spent much of his remaining years on
the Court working to undermine his own Griggs opinion.
     On the other hand, where the conservative agenda truly
reflects popular opinion, such as in the case of capital punishment
for heinous crimes, there is little liberals and progressives can
do to prevent its effectuation.
                                 *   *   *
     This is being written in the second half of the (first?)
Clinton Administration, a time when it is hard to predict what the
future holds for the federal courts.  It is a time when I find the
New Jersey state courts much more hospitable to the advancement and
protection of human and political rights and, therefore, avoid
litigating in the federal courts as much as possible.  However, I
remain optimistic that I will live to see a time when the federal
courts will, in the words of Justice Brennan, again become places
where "human rights under the federal constitution are always
proper subjects for consideration."  And even though the New Jersey
courts and Constitution may provide substantial protection for
rights in one state, that is of no use to persons in need of
judicial protection for their rights in other parts of the federal
union.   That is why it is important to resestablish the unitary
federal judicial system as the first line of defense for human
rights.
     The question is what is the proper role of the federal courts
in the third century of our nation's history.   Did the Warren
Court have it right or were they usurpatious judicial activists as
their critics maintain?  Have Burger, Rehnquist and the Federalists
been responsible for a proper correction in the exercise of federal
judicial power by restricting it to that actually intended by the
Founders of our nation?  Such queries obviously merge two separate
questions: (1) in the best of worlds, what should be the role of
our federal court system; (2) what was the original intent of the
drafters of our basic charter of government, the United States
Constitution?
     Original intent is obviously an elusive quest.  Try as we
might, it is probably impossible to divine what the Founders really
thought about specific issues which were remote from their
consciousness.  Does anyone really believe that Thomas Jefferson
and James Madison ever considered the phenomenon of television
communication or cyberspace when they talked about freedom of
speech and of the press?   Moreover, the original document and the
structure of relations it established between governments, state
and federal, and individual citizens was substantially altered in
the aftermath of a bloody civil war.    
     Despite the ambiguities, I have little doubt that Jefferson
amd Madison and their founding colleagues would feel quite at home
among modern-day public interest lawyers and civil libertarians. 
What the Founders established was a constitutional structure which
provided maximum protection for personal autonomy in the context of
a government which could provide for the common welfare.  The
essential difference between the system established under our
federal constitution and all those that went before was the notion
that sovereignty resided in the people, not in the government.  No
longer was the government in full charge, doling out such justice
as it saw fit or was wrested from it over time; but for the first
time in human history, the people deliberatly established a
governing structure with limited powers to promote the common good
without unnecessarily infringing on individual liberty.  And in
Article III, the Founders established a judicial system to enforce
that compact.  What the Warren Court did -- and what the Burger and
Rehnquist Courts undid -- was acknowledge that most  constitutional
decisions should flow from that simple proposition.  There remains
some room for disagreement as to the resolution of specific issues;
but those disagreements are minimized once we accept the paramaters
of debate.  
     It is for all of these reasons that I remain something of an
optimist.  I believe time and history are on my side.  The
conservative movement may have temporarily captured the courts; but
the spirit of constitutionalism has captured the fancy of the
public, and especially the legal profession.  The bar is no longer
the bastion of the status quo.  The American Bar Association these
days most often sides with the American Civil Liberties Union and
the public interest community, and seldom with their adversaries. 
This is no doubt due in large part to the changing face of the bar,
due to the vast increase in the number of women and non-whites who
joined the profession in the last two decades.  While the
Federalist Society is well-financed and vocal, its adherents in the
nation's law schools are a small minority -- in large part because
conservative lawyers with the intellectual credentials to gain
faculty appointments tend to be too materialistic to accept
academic wages.  And the few who did were immediately appointed to
the federal bench by Reagan and Bush.
     The major concern that tempers my optimism is the race
problem.  There can be little doubt that right wing politicians
have made huge gains in recent years by playing the race card, and
especially by exploiting the fears and anxieties of so-called
"angry white males."  If the conservative movement is successful in
convincing both the legislatures and the courts to end affirmative
action and return race relations to the 1950s status quo, it does
not bode well for the future of this nation.
     In the Nineteenth Century, Lincoln said the nation could not
exist half slave and half free.  In the Twentieth, the Kerner
Commission warned us that we could not endure as two nations, one
black and one white, separate and unequal.  If we abandon efforts
to end the racial divide and to create a truly multi-racial society
based on equal opportunity for all, I worry we may well wind up
with a permanent civil war a la Northern Ireland.
     One of the most perceptive observations about American society
was made by my son Danny when he was about 7 years old.  He and his
older brother had taken a bus from our home in West Orange to meet
me at Penn Station in Newark for a trip into New York City.  As he
stepped off the bus, Danny was all excited to know why in our
suburban neighborhood almost every body looked white and
prosperous, and as the bus got closer to Newark, almost all the new
passengers as well as the people on the streets were black and
appeared mostly poor.  He had made the same discovery as the
members of the Kerner Commission -- that the American melting pot
was a myth and a dream.
     This is surely the major challenge for all who aspire to use
law to create a better society in the Twenty-First Century.  I hope
to still be a part of that effort.

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