Robert Pack: Edward Bennet Williams for the Defense; Harper & Row; New York.

The Burger Court: The Counter-Revolution That Wasn’t; Edited by Vincent Blasi; Yale University Press; New Haven, CT.

In the late l 950’s conservatives came to understand the importance of the liberal’s commitment to methodology. Although the right had already launched a telling critique of the content of liberalism, these critiques frequently missed a key to liberal thought in the UnitedStates: its exaltation of form over matter. As a popular jingle from the early days of the New Deal put it: “We may not know where we’re going, but we’re on our way!” Imagine being able to offer such a feeble defense of the nation’s greatest social experiment–and getting away with it.

The great energy–spiritual, intellec­tual, industrial, and commercial–which America has unleashed upon the world has consistently been guided by prag­matism over principle, method over content, and efficiency over verity. This is not to say that the American system does not shower upon her people–and the world–extraordinary benefits, but to suggest that such benefits are conferred despite the absence of a systematic philosophy and that what America does might be done better if the country were to accept the possibility of and to commit itself to a valid statement of guiding principle.

De Tocqueville observed that in America every political question is at last resolved into a legal question. Today, every social, cultural, and even theologi­cal question seems cast as a political question–and then into a legal question. This, coupled with a disproportion­ately high number of lawyers, makes the United States one of the most litigious polities since the late Roman Empire. An office worker becomes ill from cigarette smoke; a priest wants to redecorate his church; a youngster is hurt when an opposing player violates a game rule; such trivial cases, and thousands like them, are thrust each year into the courts for resolution.

With such a heavy national depend­ency upon the courts, the principles (or attitudes) which guide our courts assume even greater importance. The Federal courts, at all levels, are domi­nated by liberalism, as are many state courts in the so-called leading jurisdic­tions. The primary manifestation of liberalism in law is legal positivism, a “philosophy” which denies the exis­tence of external legal principles and thus absolves a court from any necessary responsibility to square its decision with basic morality, logical coherence, or metaphysical reality. But nature abhors a vacuum. Something must guide court decisions in the studied absence of accepted legal principles. When legal considerations are wanting, political policy will fill the void. Hence the rise in American jurisprudence of a legal prag­matism of a definitely liberal bent, and of a decidedly shortsighted nature.

It must be stressed again that the foregoing is not a condemnation of pragmatism nor a denigration of form in public policy. Many public questions are properly questions of expediency and do not raise problems of fundamental principle. But the pivotal questions and cases are usually questions of principle. A mistake here adversely affects an untold number of lesser, but cumula­tively vital, decisions. In the short run, this blindness to principle results in local travesties such as the acquittal of Jimmy Hoffawon by Edward Bennett Williams, and national tragedies as in the case of the Burger Court’s legalization of abor­tion. In the long run, this deference to temporary facility is unable to meet the arguments of radical liberalism, com­munism, or legal positivism, or to check the assault which such ideologies have launched upon the Christian West. This absence of a coherent legal philosophy–a valid schema against which to mea­sure the concrete act–is what makes evaluation of individuals like Edward Bennett Williams or institutions like the Burger Court so difficult. One is re­duced, as were Robert Pack and Blasi’s essayists, to drawing conclusions based on little more than personal predilections.

Admittedly, Williams’s effectiveness as an attorney is hardly paralleled–even taking into account that the prime years for Williams’s defense work (the late 1950’s to early 1970’s) were not exactly banner years for the successful prosecu­tion of criminals. One’s discomfort with Williams turns not on his effectiveness as an advocate, but on some of the dubious characters who benefitted by Williams’s work: Jimmy Hoffa, Frank Costello, and Adam Clayton Powell, to name a few. This discomfort changes to indignation when some of Williams’s defense “tech­niques” are considered.

Although Williams denies, for example, racial orchestration of the Jimmy Hoffa jury, the fact remains that his selections worked to impanel a heavily black jury. He also denies–despite his repeated public profession of demand­ing “total control” of any case he ac­cepts–having asked Joe Louis to show up in court, or of having Hoffa (with the judge not yet present) put his arm around the noted black boxer and chat in view of the jury. Nor does he admit to having prior knowledge that a black newspaper depicting Hoffa as the friend of black unions would be sent to the jury during the trial, or to having sinister motives when he brought to the atten­tion of the black jury the fact that the state’s chief witness against Hoffa had at one time done some under cover investigations of the NAACP.

Obviously, having seemingly de­stroyed this witness’s reputation for honesty in still another courtroom ploy did not deter Williams, just three weeks later, from calling upon this same wit­ness as part of Williams’s defense of gangster Frank Costello against deporta­tion. And Williams saw no conflict of interest when he, while serving as defense counsel for Adam Clayton Powell, also appeared as counsel for the star prosecution witness against Powell. This little trick destroyed the state’s ability to prepare the witness for trial, as Williams would have attended every such session. The question in such cases is, had the roles been reversed, how many such antics would Williams have tolerated without raising objection, moving for mistrial, or running to the press? Or is the only rule in court to get away with as much as opposing counsel will allow?

According to Pack, Williams does not concern himself with his client’s moral­ity or immorality, or even guilt or innocence. His sole object seems little more than to prevent conviction of his client. One would be hard put to find a clearer case of concentration on form over content. But some serious questions may be raised against what is admittedly a widespread attitude on the part of lawyers.

Williams justifies his defense of such notorious characters by saying that the Sixth Amendment guarantees all accused persons the right to counsel. Indeed it does. But Williams–and he is far from alone here–seems to read into that amendment the right, if not the obligation, to use any means at his disposal (short of perjury, bribery, or rank dishonesty) to exonerate his client. This, I suggest, is inconsistent with the lawyer’s responsibility as an officer of the court.

Courts of law were established to administer justice. To the extent that they fail to do justice, they fail in their only reason for existence. Likewise, to the extent that prosecution, defense, judge, or jury fail to advance justice, they fail in the irresponsibility to the courts and to society. This is not to say that the defense should join in the prosecution of the accused. The defense’s duty is to require the state to prove its case against individuals; but that is far different from saying that the defense’s duty is to prevent conviction of the client. The former policy allows even the most despicable criminal the assistance of an able attorney; but the latter incites public anger against the courts, and brings contempt up on the legal profes­sion. Yet, the problems which confront the individual in the practice of law are due in large part to the problems ham­pering the courts themselves as they search for purpose and direction in their deliberations.

In light of the liberal preoccupation with form, it should not surprise us that when Vincent Blasi sees the Burger Court strike down provisions in Federal statutes 24 times (as opposed to the Warren Court striking down 19 provi­sions) he concludes that the Burger Court is necessarily an” activist” (read: praiseworthy) Court. But theWarren Court was activist not because it struck down Federal legislation per se, but because it substituted its own political preferences for those of Congress. What Blasi and most of his essayists over look is the possibility that when the Burger Court strikes down a Federal provision today, it might well be trying to reestablish a stricter interpretation of the Constitµtion which would help return the Federal government to its rightful limited role. For example, National League of Cities v. Usury, which Blasi offers as an example of judicial activism, is precisely an exercise in strict Constitu­tional interpretation. Here the Burger Court, bucking 40 years of liberal momentum, held that Congress had exceeded its authority under the hitherto disregarded corpse of the commerce clause and breathed life into the dormant Tenth Amendment as one remaining check against continuing Federal encroachments on state and local autonomy. Paying attention to the content of the Burger Court decisions, instead of simply their form, gives us a more accurate picture of contemporary jurisprudence.

The preceding notwithstanding, we must yet conclude the Burger Court to be an activist Court, though not for the reasons Blasi et alia suggest, and certainly not to the egregious degree of the Warren Court. The Burger Court will go down in history as the Abortion Court. However, as seriously as the Burger Court has sinned by commission, these cases are blessedly few. Where the Burger Court really earns its title as activist is in its easy acquiescence in the legacy of the Warren Court.

The “rootless activism,” as Blasi puts it, of the Burger Court has left intact “the great activist trilogy of the Warren years–Brown v. Board of Education (school desegregation) Reynolds v. Sims ( reap­portionment) and Miranda v. Arizona (confessions).” So too, a second echelon of cases remains basically in place: New York Times (relaxed libel law for the press), Mapp  (search and seizure re­strictions), Griswold ( contraception expansion), Engel (school prayer prohibition) and Baker (reapportion­ment regulation). All of these activist pillars stand, allegedly in the name of judicial self-restraint. It is amazing how quickly the Court and its commentators have rediscovered stare decisis and the doctrine of deference to precedent­–the very rules trampled in the rush to establish the new policies of these cases. So far at least, only Justice Rehnquist seems aware of the hypocrisy.

Ironically, even here, in their professed respect for precedent, the Court and most commentators show themselves yet again to be placing form over content. The respect for precedent was never an end in jurisprudence; it was simply a means to a greater end. It was a method whereby long-established and well-working rules would not be lightly overthrown in the name of temporary expediency; it was never intended to memorialize into national policy the fancy of nine passing men

“Rootless activism,” says Blasi, “is activism noonetheless.” If we can agree then that the deliberations of the Burger Court are rootless, and that the machinations of attorneys like Edward Bennett Williams are without apparent guidance, it then becomes time to ask whether this state of affairs is an acceptable one, and if it is not, to begin seriously considering what should be done about it.