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High court endlessly rewriting U.S. Constitution

After his resignation from the presidency, Richard Nixon famously told David Frost, “When the president does it, that means it is not illegal.” He was talking about the president’s authority in a time of national emergency, citing Lincoln’s management of the Civil War as a precedent. His defenders can rightfully say he had a point, as long as you assume he was talking about circumstances as dire as those facing Lincoln.

Unfortunately for his defenders, Nixon was answering a question about the so-called Huston Plan. The plan, named after the Department of Justice official who wrote it, was designed to squelch anti-Nixon protests. It called for break-ins, black-bag jobs and all manner of searches without warrants in violation of the Constitution’s Fourth Amendment. Given its specific context, Nixon’s remark deserves all the scorn it has drawn through the years.

But had he changed his reference to a different branch of government, his remark would have passed by without notice. Because when the Supreme Court does something, that really, truly means it’s not illegal. If the Supreme Court says, for instance, that the equal protection clause of the 14th Amendment allows racial discrimination, as it did in 1896’s Plessy v. Ferguson, then every other judge in the country is obligated to act as if it were possible for a person of good will to believe that “equal” and “unequal” are synonyms. Lower-court judges dutifully kept up the pretense for 58 years, until Brown v. Board of Education began the agonizingly slow process of undoing the damage.

But here’s the thing: Under the conventions of the American legal system, Plessy was actually a correct interpretation of the equal protection clause. That’s because whatever interpretation the Supreme Court adopts is correct, by definition. Of course, in the very nanosecond Brown was handed down, Plessy’s interpretation ceased to be correct. In the blink of an eye, it went from everything to nothing.

It’s commonly said that law schools teach students to “think like a lawyer.” That process can be jump-started by memorizing two sentences:

1. The Constitution is the fundamental law of the land, limiting government in accordance with unchanging principles laid down at the time of the founding.

2. The Constitution means whatever five justices of the Supreme Court say it means.

If you can believe both sentences with all your heart and train yourself not to notice any hint of contradiction between them, you’re well on your way to thinking like a lawyer.

Back in 1977, the Supreme Court was faced with the issue of whether Detroit’s school board could permissibly enter an agency shop agreement with a teachers union. In an agency shop, workers aren’t required to join the union, but if the union represents them in collective bargaining, they must pay “a service fee equal in amount to union dues.” Michigan state law permitted agency shop arrangements for government workers. But some Detroit teachers objected, arguing they were being forced to subsidize the union’s political activities in violation of the First Amendment’s guarantees of freedom of speech and association.

In 1977, six Republicans and three Democrats sat on the Supreme Court. They unanimously agreed that under the First Amendment, the dissident teachers couldn’t be required to support the union’s lobbying. But three Republicans, including the very conservative future Chief Justice William Rehnquist, joined with the Democrats to hold that unions could compel beneficiaries of collective bargaining to pay their fair share of the cost. The three other Republicans didn’t absolutely reject that principle but would have placed a heavy burden on the state to justify the distinction between political and nonpolitical activities.

Last month, as you might have heard, the Supreme Court overruled its 1977 precedent. This time, the vote broke on party lines. Building on the court’s campaign finance decisions, the five Republican justices declared that the Constitution prohibits state employers and public sector unions from collecting fees from nonunion members, unless they agree to pay, which would be like a stowaway volunteering to buy a ticket.

Today’s justices want us to believe that the justices of 1977 totally misunderstood the First Amendment, even though they were indisputably correct for 41 years. For lawyers, that’s not much of a conundrum. If the Supreme Court does it, that means it’s not illegal. Lawyers simply accept, in the arresting phrase of Calvin Coolidge’s solicitor general, that the Supreme Court is a “continuous constitutional convention,” endlessly rewriting the fundamental charter of our nation’s political existence. The justices don’t just make law. They make the Constitution.

Which, I can just about guarantee, is a truth no one will acknowledge at Brett Kavanaugh’s confirmation hearings.

Joel Jacobsen is an author who recently retired from a 29-year legal career. If there are topics you would like to see covered in future columns, please write him at”>href=”http://legal.column.tip”>