The Supreme Court - 4 May 2001

I don't remember a time before now when a Supreme Court decision in an apparently trivial case has prompted such a swift popular outcry.

Last week, a young mother appealed to the Supreme Court as a victim of what the Constitution prohibits: Unreasonable search and seizure.

She was driving home with her two small children, each of them peering out for a toy they'd lost. They were stopped by an angry cop for not wearing their seat belts.

The mother was handcuffed and thrown in jail for several hours and made to pay a penalty six times the usual fine. The Supreme Court ruled against her by five to four.

Which, not so strangely, as you shall see, takes me back to the memory of a trip across America on which I caught up with the Soviet leader of the time - a man who I believe in our time was the most belligerent, most threatening of the Communist leaders, if by threatening we mean a man with a fierce ambition to destroy the democratic world and the one most likely to do it. Indeed he came closer than anyone to a first strike.

I'm talking about the incomparable, the insufferable Nikita Khrushchev. And I'm suddenly humbled, intimidated anyway, by the discovery that many listeners may have only the fuzziest picture of him or any memories of his ever-looming presence in our lives.

So older listeners must forgive if I begin with a sketch of my man, such as you might pick up from an almanac or a handy cyclopedia.

Nikita Khrushchev was a coal miner's son who dropped out of high school to become a miner himself.

He fought with the Red Army in the Revolution and he started climbing high into the Bolshevik (later called the Communist) Party. Became a close friend of the Mayor of Moscow, one Bulganin, and helped him build the city's famous underground (the tube, not the secret police - that had been there for a couple of hundred years).

When Stalin died in '53 Khrushchev contrived to install his pal Bulganin as general secretary, premier, head man. But perhaps because it was Khrushchev who chiefly managed to suppress the Polish bid for independence and the Hungarian uprising that he was destined to become the premier himself - a destiny that was self-anointed when he took over from Bulganin in 1958.

From the beginning of his rule Khrushchev abused the United States as a fascist, imperialist beast.

And to try and melt the Cold War by a dramatic gesture President Eisenhower, who was then in his second term, invited Khrushchev not only to visit the United States but to be taken on a tour of it with Henry Cabot Lodge, the American ambassador to the United Nations, as host.

From Ambassador Lodge, a handsome New England Brahmin and former senator, several very salty memories were, shall I say, available. And one I'll never forget is the starting point of this talk.

It was on a special train going up along the beautiful coastline, the corniche, from Los Angeles to San Francisco that Mr Lodge and Mr Khrushchev got into a discussion - lively but never argumentative. It was difficult to argue with the burly, balding, fiery little Khrushchev because he cut short debate with a flat denunciation of your side and then changed the subject.

At some point Mr Khrushchev declared that after all there was little difference between the Soviet and the American systems of choosing a leader. Well the startled Mr Lodge wondered how so.

"Well," said Mr Khrushchev, "we choose one man, you choose one from two." A nice jokey point.

But Mr Lodge went on to explain the long, rough democratic road, the year-long party jostling, the primaries, the supremely democratic institution of the conventions and on and on till you reached the choice between those two. Khrushchev was unshaken. Then he remarked: "Your Congress makes your laws and who overturns them? Your Supreme Court."

I don't know if Mr Lodge was up to this but laughing effusively he said something like "Ah yes, but there are nine of them."

Point taken you'd think. Not at all.

Mr Khrushchev: "Nine old men to begin with but then they vote and sometimes wind up with five to four to maintain a law or overthrow it. So in the end your country is ruled by one judge, one American, not even elected. With us the general secretary puts everything up to the central committee."

Well with little time and not much deeper thinking this analogy could be shown to be preposterous. Still Krushchev's joke revealed a remarkable flash of insight into an element, a weakness if you like, of the Supreme Court, if not of the Constitution that created it.

It's an insight that's becoming uncomfortably clear to very many Americans who'd always retained a respect bordering on reverence for the court, until the outcome of the court's entanglement with the statutes of Florida and the decision, which by a single vote of the nine judges, threw the election to Governor Bush.

Let's start by reminding ourselves that a majority decision by the Supreme Court, more than any other institution, can shape the laws of the land for generations. Not by ever making or suggesting law but by the court's power to invalidate both state and federal laws.

Now what is Mr Khrushchev's wily complaint of government by one human being? It is about five-to-four decisions.

I should remark that in the 200 years of the court's existence the number of justices has gone from six to seven to 10. Once for all, in 1869, it was fixed at nine - a chief justice and eight associates.

And since then there's been a low rumble of complaint, especially from states which lost their appeal, that matters affecting every American could be decided by a majority of one among the nine.

Now, for many years this protest was muted because it was found that in a century and a half, since 1789, the court had adjudicated 26,000 public laws but only 11 acts of Congress had been found unconstitutional by a five-to-four majority.

I haven't been through the recent tally but I'm pretty sure they've been 11 five-to-four decisions in the past year or two. They have certainly increased alarmingly with the present court and the decision in the arrested mother case was a startler.

In the presidential election fiasco it was seen very late in the day that the national decision lay in the hands of one justice, of one woman: Justice Sandra Day O'Connor.

Now why should it have fallen to this 70-year-old lawyer from Texas, the first woman ever to be appointed to the court, who started as a county attorney, moved up and up to being a trial judge and then went to the court of appeals? She was chosen by President Reagan as a sound, conservative Republican who yet had a fair sense of justice.

This may be a good time to say that every president of either party always says he will appoint justices to the court who are strict constructionists - that is, will interpret the Constitution literally without political bias or any attempt to reshape the law. And every president then appoints judges who share his political beliefs.

Franklin Roosevelt got so frustrated by the court's knocking down so many of his New Deal laws that he put up a serious proposal, which now seems inconceivable, to retire the old conservatives and appoint a pack of new, liberal justices. The court shot that one down too.

But so far as I know there's been only one outstandingly unrepentant constructionist. He was the late Justice Oliver Wendell Holmes.

Before helping, with his vote, to send a radical politician to jail in accordance with a law which Holmes himself thought was stupid and outdated, he wrote: "Forget justice, our business is to enforce the existing law and if it is a bad law let the Congress make a better one."

Unendingly, year after year, administration after administration, this conflict grinds on, the opposition party ceaselessly and correctly accusing the party in the White House of appointing political judges.

When President Reagan appointed Mrs O'Connor there was no audible Democratic outcry. From her record on the appeals court she was a moderate who could be counted on to vote most of the time with the conservatives.

But, as so often happens even to sophisticated presidents who should know their history, even a moderate can turn immoderate.

President Eisenhower made the very conservative governor of California chief Justice. But Chief Justice Warren turned into a comparatively flaming liberal and led the historic majority decision in 1954 to render unconstitutional the separation of blacks and whites.

"The worst damn fool mistake I ever made," Eisenhower moaned in his old age.

In the arrested mother case Mrs O'Connor voted for the woman against the majority.

Now Mrs O'Connor has made no sharp left turn, performed no theatrics. She's a patient quiet pertinacious lawyer, notable for wanting to find exact legal grounds for her decisions.

She's surprised us from time to time by switching and voting with the liberal four, thus disappointing the Christian right, for instance, by upholding the abortion law.

She became known to the court reporters as the switch vote. Little did anybody guess, as the Florida voting mess got messier, that the election would go to the Supreme Court. It had never happened before. The Constitution makes a state's power to select its electors absolute.

After a quiet but seething private debate in which the liberal justices demanded a recount of those two counties, and the conservatives pointed to the calendar and the Constitution's time limit on a count, the court went into a sort of restrained panic.

Mrs O'Connor thought things over, decided for once not to switch and voted 'no more counting' - thus making Mr Khrushchev's monstrously absurd point that the president of the United States need not be elected by the people but might be selected by one American, one justice.

It may have been feminism's finest hour but it has left more Americans than the defeated Democrats baffled and uncertain for the first time in their lives of the function, indeed of the integrity, of the court.

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