The opening of the Supreme Court's 1983-84 session on the first Monday in October should prompt citizens to scrutinize the work of this increasingly powerful branch of government. Dennis J. Mahoney reflects on the important opinions of its last term, while Jonathan K. Van Patten examines two influential works arguing for an even stronger Court. Both raise the question whether the Court has exercised its power wisely.

A review of The Supreme Court Reporter, vol. 103Warren E. Burger, et al.

Each year there is published a new volume of a textbook on American political theory and practice. The textbook is written by a committee of nine members, and the committee convenes on the first Monday in October each year to begin drafting the next volume. The committee comprises persons of undoubted qualifications: Each is an attorney, several have advanced degrees besides their law degrees, all have a record of government service. And yet, the product is seldom entirely satisfactory.

The textbook to which I refer is the collected opinions of the Supreme Court of the United States. It is a volume devoted to explicating the Constitution through its application to the problems of particular individuals on the basis of facts and arguments established through the vagaries of the litigation process. Its premise is that, alone of all the citizens of the Republic, the nine men and women who gather the first Monday of each October on the bench of the Supreme Court speak authoritatively on the meaning of the Constitution.

The current volume in this series is representa­tive of those published in recent years. The volume comprises a jumble of not-quite congruent accounts of the Constitution as produced by subcommittees of varying membership, as the Justices form and dissolve shifting alliances. To be sure, there are alignments that are enduring, if not permanent: William Brennan and Thurgood Marshall are almost invariably teamed up on the left, and William Rehnquist and Sandra O'Connor on the right. In 40 cases decided during the 1982-83 term by votes of 5-4 or 6-3, each of those pairings occurred 36 times. Chief Justice Burger and Justice Powell most often join Rehnquist and O'Connor; Justices Stevens and Blackmun most often join Brennan and Marshall. Justice Byron "Whizzer" White has become the permanent swing-voter.

The Supreme Court does more than adjudicate constitutional questions. It is also the highest appellate tribunal for matters involving federal statutes. A large part of its workload consists of interpreting federal tax, labor, antitrust, communi­cations, and other law. Chief Justice Burger spent much of his off-the-bench time during the 1982-83 term advocating and lobbying for the creation of a new federal appeals court to relieve his panel of that part of its workload.

But it is as interpreter of the Constitution that the Supreme Court most directly shapes the regime, this nation's way of life. For the first 100 years of our national existence under the Constitution, the Supreme Court was one of three coequal branches of the national government. To be sure, in the adjudication of cases and controversies properly before it, the Court had the final say about the meaning of our fundamental law. But that right to the "final say" was shared with the President, who interpreted the Constitution in the pursuance of his executive functions, and with the Congress, which interpreted the Constitution in the course of legislating. Only in our own century did the Supreme Court become the sole and definitive interpreter of our national charter.

This is not to say that the Court has usurped some of the power of the coordinate branches. Rather, to a large extent, the political branches of government have abdicated their responsibility, preferring to have the Justices take the heat when public opinion fails to coincide with constitutionality. But Charles Evans Hughes's ironic remark, made when he was Governor of New York, that the Constitution is whatever the judges say it is, has been transformed in recent years into the highest principle of constitutional law. So firmly is the Court's role as ultimate arbiter of the Constitution now established that when, for the first time, in 1958, the Court declared that its own decisions were the Supreme Law of the Land, the event passed almost without notice.

This transformation of a court of law into a permanent constitutional convention introduces certain disadvantages into the political system. The greatest disadvantage is that fundamental questions concerning how and by whom we are to be governed are answered, oracularly, in cases involving the accidental interactions of individuals and groups. The Constitutional Convention of 1787 may not have been the assembly of demigods that Thomas Jefferson proclaimed it, but the Framers of the Constitution gathered at Philadelphia to produce a framework of government through deliberation on great public questions. The Supreme Court alters that framework through deliberation on all-too-petty questions. The Court obtained the status of constitution-maker by its own ambition and by the weakness of will of the political branches. It has been sustained in that role by the efforts of two generations of intellectuals (in the universities and in the press) who dislike politics and distrust democracy. But the fact is that the Court is ill-suited to the role, and the judicial process is probably the worst imaginable for constitution-making.

In the course of deciding the cases and contro­versies that come before it, the Court annually encounters anew the principles of the regime. But the circumstances of the encounter-appellate review of cases decided by other courts on the basis of evidentiary records compiled by attorneys-are not auspicious for the judicious, or even con­sistent, application of those principles. An example from the 1982-83 term shows not only how true this is but also how little the Court has learned about its relationship with those principles in the course of a century and a quarter.

Our most fundamental constitutional document, the Declaration of Independence, declares that government exists to secure the natural rights of human beings, including the rights to life, liberty, and the pursuit of happiness. In the Bill of Rights, the Founding generation provided that the federal government might not deprive any person of life, liberty, or property without due process of law (i.e., in general, without first convicting that person of a crime). After a bloody and terrible Civil War, the people extended that prohibition to the state governments by the Fourteenth Amendment.

Except for a brief period at the beginning of the present century, the Court has found precious few individual liberties worthy of protection against government depredation, whether at the federal or the state level. The two due-process clauses have been virtually stripped of their original sub­stantive meaning and turned into catchwords for procedural technicalities. Indeed, if the government prosecutes you for a crime, the procedural shadow of the due-process clauses may well preserve your liberty and property; but if, instead, the government merely legislates away your property or restricts your liberty by executive regulation, then the clauses are, under most contemporary decisions, of no comfort to you.

In a revival of the doctrine of Lochner v. New York, a 1905 decision apparently repudiated by the Court during the New Deal period, the Court has held that state interference with at least one newly discovered liberty contravenes the due-process clause. A series of cases decided during the 1982-83 term, of which the leading case was City of Akron v. Akron Center for Reproductive Choice, reaffirmed the Court's abortion decision of ten years ago. Under the new decisions, the states may no longer prohibit abortions during the second trimester and are severely restricted as to the degree of regulation they may impose. State interference with abortion, the Court has held, deprives the prospective mother of liberty without due process of law.

That the Court has decided once again to accept the responsibility of enforcing the substantive guarantees of the "due process" clauses should be a cause for rejoicing. But the Court has been trapped on the horns of the same dilemma that was posed by Dred Scott v. Sanford in 1857. In Dred Scott, two interpretations of substantive due-process protection contended. Scott himself claimed that if federal law permitted him to be treated as a slave in the federal territories, then it deprived him of liberty without due process of law; the slavemasters claimed that if federal law set Scott free, then it deprived them of property without due process. To resolve the controversy in favor of slavery, Chief Justice Taney had to rule that blacks were not persons under the Constitution. Similarly in the abortion cases: If an unborn child is a person, then the Court's discovery of a consti­tutional "right to abort" deprives that person of life without due process of law; the mother's substantive right becomes an object of constitutional protection only if the child is not a person. Justice Blackmun, in Roe v. Wade, resolved the dilemma by ruling that unborn children are not persons under the Constitution.

The Court's encounter with constitutional principles occurs also at the level of the allocation of government power. The Founding Fathers, unwilling to rely on public virtue alone to secure individual liberty against the concentration of government power, devised a system of separation of powers mediated and enforced by checks and balances. Over the nearly 200 years since the Constitution was written, the balance of power has shifted many times between the various branches and institutions of government.

The expanded role of the Court is the most significant alteration in the balance of constitutional power to occur in this century. The Court, during the 1982-83 term, spoke on the next most signifi­cant. It may well be that the decision in Immigration and Naturalization Service v. Chadha will have the greatest impact of any of the decisions rendered last term. In that case, the Court struck its first blow against the so-called "legislative veto."

Guided by the separate opinion of one of the Justices, the press immediately declared that in Chadha the Court had held unconstitutional every application of the legislative veto. But it is not evident that that was, in fact, the situation. The veto in Chadha was a one-house negative over the adjudicative discretion of an administrative tribunal in a particular case. It was a most atypical use of the device in question. Such is the nature of the judicial system, however, in which the great issues of constitutional controversy are determined within the context of private cases and controversies, that the Chadha case has, at the least, overcast much of the daily administration of the government with a cloud of uncertainty.

The departments of the executive branch and the independent regulatory agencies exercise a great deal of power that is delegated to them by Congress. That is, in the promulgation of rules and regulations with the force of law, they are exercising legislative power. Congress may delegate or not delegate its power; it may provide guidelines for, or impose restrictions on, the exercise of the delegated power. But Congress cannot transform legislative power into executive power merely by delegating it to an officer or agency of the executive branch. When an executive official promulgates a regulation, he is doing what it would otherwise take both houses of Congress (and the approval of the President) to do. It is not unreasonable, therefore, for Congress to provide that such regu­lations should be suspended in their operation until Congress considers them and that one or the other house might prevent the regulation having the force of law by indicating that they would not have that house's concurrence.

This, indeed, is the most common form of the legislative veto, but it is not the form of the legislative veto invoked in the Chadha case. There­fore, it may be that other forms of the legislative veto will survive judicial scrutiny in the future. The political process, rather than the judicial process, will probably resolve the question in the case of the War Powers Act, but James Watt's defiance of the legislative veto of coal-lease regulations may provide another opportunity for the Court to decide between the executive and legislative branches.

There is no reason to be sanguine about the prospects for legislative control over the bureaucracy. The Court in the 1982-83 term deferred to bureaucratic independence of political control. Such independence is a feature of the new separation of powers invented during the Progressive Era and imposed during the New Deal, according to which the power of administration of government is separated from the power of political decision-making. The most shocking (although not especially surprising) case decided during the 1982-83 term was Bob Jones University v. United States.

The Commissioner of Internal Revenue had determined, without statutory authority, that cer­tain policies of a small, denominational college, adopted in accordance with rather idiosyncratic interpretations of scripture, contravened a national public policy against racial discrimination. The Court refused to allow the Justice Department to withdraw the case, appointing a private attorney to argue what the Attorney General would not, and then decided in favor of the Internal Revenue Service. The decision seems to cloak the IRS with power to manipulate the tax laws to enforce general public policy independently both of the legislative and executive branches. Moreover, that power may apparently be used to withdraw tax immunity from religious groups that act on the basis of doctrines (e.g., proscription of abortion in church-owned hospitals) that do not coincide with certain public policy preferences.

The Constitution prohibits the government both from establishing a religion and from interfer­ing with the free exercise of religion. To the Founding Fathers, who imagined that they had created a government of limited aims and limited powers, the possibility of conflict between these two provisions must have seemed remote indeed. However, as the growth of governmental power has pushed back the boundaries of the private realm, the potential for conflict has increased dramatically. Three important cases decided in the 1982-83 term touched on the relationship between government and religion.

In Larkin vGrendel's Den, decided early in the term, the Court found an establishment of religion in a New York law that prohibited the granting of liquor licenses to establishments within 500 feet of a church or school unless the church or school waived its protection. To the Court it seemed that this impermissibly involved churches in the govern­mental process-in this case, the decision whether to license a tavern. Incredibly enough, the Court had no difficulty in so deciding; in fact, only Justice Rehnquist denied that the law created an establish­ment of religion.

Among the last cases decided in the 1982-83 term was Marsh v. Chambers, in which the Court held that the Nebraska legislature's employment of a chaplain, paid at public expense, did not constitute an establishment of religion. The Marsh opinion, like that in Larkin, was written by Chief Justice Burger. While it is difficult to imagine that the Founding Fathers, who appointed Bishop White as chaplain to the Constitutional Convention, would have regarded Nebraska's chaplaincy as an establish­ment of religion, it is more difficult to reconcile Marsh with the Supreme Court's understanding of establishment as represented by Larkin. These cases again show the problematic character of constitution-making on a case-by-case basis.

The third religion case, Mueller v. Allen, best exemplifies the way in which the religion clauses have been twisted by judges and lawyers. Most of the establishment clause cases decided by the Supreme Court have involved the religious educa­tion of children or the education of children in religiously affiliated schools. At issue in Mueller was a state law permitting the parents of private school pupils to deduct a portion of the tuition expense from their gross income in computing state income tax liability. Opponents of the provision argued that most private school pupils in the state attended Roman Catholic schools and that, there­fore, the tax deduction disproportionately benefited the Roman Catholic Church. The case was decided, 5-4, in favor of the parents, Justice Rehnquist writing the majority opinion. The liberal bloc-Brennan, Marshall, Blackmun, and Stevens-lined up solidly against the tax-deduction provision. The most alarming aspect of the dissent is the notion that any private income not taken in taxes is a class of public expenditure: in effect, all the income and wealth of the country is at the disposal of the government, and any that is retained by the indi­vidual constitutes a government grant.

Twenty years ago, the Court plunged into the political thicket of legislative apportionment and has not extricated itself since. Two cases decided the same day during the 1982-83 term leave the constitutional standard (one-man, one-vote) as unclear as ever. In Karcher v. Daggett, the Court held that New Jersey's apportionment scheme did not meet the standard because, although the differ­ence in population between the largest and smallest districts was less than one percent, a scheme with an even smaller difference was possible. But in the next case, Brown v. Thompson, the Court upheld a Wyoming apportionment plan providing that every county would have at least one representative, although the resulting difference in population between the largest and smallest districts was 89 percent. Although both cases were decided on 5-4 votes, three justices changed sides between the two cases. After two decades, the meaning of the "one-man, one-vote" standard remains unclear.

The capital punishment cases of the 1982-83 term, of which Barefoot v. Estelle is the leading case, demonstrate, if nothing else, the handicap under which conservative jurisprudence operates in the contemporary American judicial system. An older understanding of how the Courts are supposed to proceed holds that issues once decided remain decided (until the Constitution or statute is amended), and that earlier cases form the precedents according to which later cases are decided. This older understanding is embodied in a doctrine called "stare decisis," a doctrine which is essential to conservative jurisprudence. A recurring feature of opinions by conservative or centrist justices is a judicial attitude that might be expressed: "I disagree with the decision in the earlier case, but that decision is now the law and must be followed." Justices Harlan and Stewart often took that line, and Justices Powell and White, at least, do so now. But the liberal bloc does not feel bound by stare decisis, and is willing to overrule or disregard precedents if it believes they are out of date. There is no better illustration of this attitude than the Brennan-Marshall opinions in capital punishment cases, which put forward the position that the death penalty, in and of itself, is cruel and unusual punishment, although the majority has consistently held otherwise.

As this article goes to press, the Supreme Court has reassembled in Washington and is about to commence its 1983-84 term. The result will be, next summer, a new volume in the definitive series of textbooks on American government. Can we have confidence that the authors' committee will do a better job this year? Not if the record is to be relied on. This term, as last term, the picture of our constitutional system will be muddled and unclear, principles will be tortured to fit the peculiar facts of particular cases, and shifting majorities will provide no guidance to those who would proceed in accordance with constitutional law.