Playing for Time - 25 June 1999

A listener wonders why the Supreme Court of the United States takes so long - months, even years - to reach its conclusions. And what are these rights it's always defending?

Well the question couldn't have come at a more appropriate time, in a week when the court, which is coming to the end of the present term, opened the gates and released a positive flood of decisions.

I'm afraid my listener put the question in an unfortunate form. Why does it take those judges so long to reach a verdict?

The word "verdict" is a dreadful give-away. It implies a complete misunderstanding of the function of the august court. It is not a trial court, it's the final appeals court of the national judicial system, when it is so declared to be in the Constitution.

It may consider any case it chooses and in fact it declines most of the cases it is asked to consider, which means that in those cases the ruling of the lower appeals court stands.

The Supreme Court's unique power is the power of what's called judicial review. It alone can decide whether a federal law, passed by the Congress, or a law of any of the states or ordinances of any city - any other public body - it alone can decide whether that law does or does not violate the rights of an individual under the Constitution of the United States.

The Constitution nowhere professes to protect companies or corporations or local governments or government officers, however high and mighty. It's always deciding whether somebody's constitutional rights have been violated.

"Though the mills of God grind slow yet they grind exceeding small" wrote the poet. And the same may be said about the Supreme Court of the United States.

It moves, as it wrote in one famous decision, with "all deliberate speed" - more deliberation than speed perhaps because after all it deals with every social problem that affects you and me. And when it delivers a positive ruling it expects to have settled that social problem once for all.

Since the 10 clauses of the Bill of Rights were tacked on to the original Constitution in 1790, there have been only 17 new clauses - amendments - added by Congress. And all but one of them were additional liberties or provisions nobody had thought of in the beginning.

In simpler, blunter, words: only once since the Constitution became the fountain of American law, only once has a clause - an amendment to the Constitution - been repealed. Sorry men, didn't think it would work out that way so better abolish it.

That was the Constitutional amendment passed and ratified in 1919, repealed as a horrible mistake in December 1933 - the notorious, the appalling act I mentioned a week or two ago: the Prohibition of Liquor amendment.

It usually takes a year or two, sometimes many years, for a case to get to the Supreme Court.

Remember it deals only with cases that claim to violate or infringe the liberties of an individual. And there's scarcely a trial about anything claiming an injustice that can't be made out to be doing an injustice to a person.

And conversely a case which involves somebody as humble as an eight-year-old black girl going to school can, according to the judgement of the court, can and did trigger the greatest social revolution in America since the Civil War.

For the court decided, 45 years ago this spring, that making that little girl walk two miles to her black school instead of going round the corner to a white school, violated her constitutional rights - her right to "equal protection of the laws".

Sounds very simple in the result but the legal campaign to make racial segregation violate the Constitution started at least 20 years earlier. It took from 1935 to 1954 for the Supreme Court, in a flock of successive cases, to come at last and decide that segregating the races in schools, restaurants, theatres, lavatories, all public accommodations, could be fairly taken to violate the "equal protection of the laws" phrase.

Because of this power to change the customs of society with one ruling, the nine justices take their time studying the case. They had better ponder hard and deep.

Nobody learned this better than the great, the sainted, Justice Oliver Wendell Holmes - the majestic Yankee who, because there were two justices on the court from New England, didn't make it to the United States Supreme Court till he was in his 70s.

When he got there - and according to customs was assigned a case to write the majority opinion on - he followed the practice he'd long ago established as a judge on the Massachusetts Supreme Court. He sat down. One evening he went over the brief, the arguments, he thought a while and he wrote his opinion that day in clear, firm, exquisitely precise and usually beautiful English - the last great judge on either side of the Atlantic to do so.

Then he went about his private business and next day or the day after he arrived at the court and said: "By the way, I've written my judgement in the case of USA vs. John Dogsbody" or whoever. The other justices were shocked.

He read them his opinion. They had to admit it was brilliant. But surely having been written overnight it must be considered superficial. They decided they'd weigh the matter at greater length.

Well Holmes was quick to learn. Next time he was assigned an opinion, he again followed the natural habit of his mind which was to do the thing in one evening. Thought a while. He wrote, but then he didn't take it to the court. He put in the bottom drawer of his desk, letting it - as he said privately - "age in the wood" for three months or so. Then he took it to the court.

Ah, that was better. They found it brilliant, most thoughtful, most moving.

I said earlier that the rights that the court exists to defend can be of every degree of importance to you and me. In 1973, after decades of laws passed and laws declared unconstitutional on this topic, finally the court declared that no state may prevent a woman from having an abortion during the first three months of pregnancy.

This overturned the anti-abortion laws of 40 states - a colossal change. But, during the past quarter century, every possible modification and variant of the new law has been tried by one state or another, including an unflagging effort by conservative Republicans and Christian evangelists to have the 1973 law repealed.

Now obviously that was a matter of the widest social consequence. But now suppose you happened to be an undertaker and you also happened to hold shares in an insurance company. Nothing wrong with that, surely? Oh yes there is.

The Supreme Court rule said you can't do it. It says so in that 1789, most-comprehensive document - the Constitution.

And how about this? A man gets on a public bus and he takes his seat and music is coming out of the public address system. He doesn't like it. He sees no reason why he should have to listen to music he didn't order up.

He sued the bus company and he lost. He took his appeal up and up and eventually to the Supreme Court which said he was absolutely right. His right, pronounced in the First Amendment to "freedom of assembly" had been violated.

And now for the ruling which has been reached in, I should think, a record time of about 18 months, is what I took up as the main topic only two, three weeks ago.

Let me remind you of the new law - the Disabilities Act - known more formally as The Americans with Disabilities Act. That most thoughtful, most humane act - whose inventors, whose framers, have often wished ever since - in the privacy of their homes of course - they'd never brought it up.

I mentioned the case that got national publicity and that triggered scores - nay hundreds - of law suits and that was the case of Mr Casey Martin - the professional golfer who played in a minor league where he'd been allowed to use an electric cart because he had a painful and debilitating disease of his legs.

He qualified, one day, to play in the main league and he asked for the same favour - a cart which had never been used in the top professional golfers' association tournaments. The rules of golf forbade it.

The ruling body held that walking 18 holes four days in a row is part of the competitive test. But Mr Martin took his case onwards and upwards and the Supreme Court upheld him under the Americans with Disabilities Act.

Whereupon, you recall, I told how hundreds of people - with a headache, being slightly deaf, with an allergy, anybody who took a pill for anything, decided they were disabled and sued when they'd been turned down for a job. An orchestra conductor who was deaf said he was as good as anybody, with his hearing aid.

Well last Tuesday the court rejected three cases pleading that they'd been fired for a disability. And it ruled, in effect, that people with a physical impairment, who can function normally when they were glasses - a hearing aid, a pill, whatever - cannot necessarily be deemed disabled.

Collapse of a thousand pending cases. But not maybe all. The court's opinion says the law must apply only to those who are truly disabled.

Yes but - and I'll bet a thousand lawyers are already at it, searching the Constitution - what does the Constitution define as "truly"? After all they spent more than a hundred years finding out what "equal" meant when it referred to blacks.

So that's the next big constitutional question: what is "truly" disabled?

Any suggestions?

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