A Wonderful Work or a Rat Trap? - 16 June 2000

Every summer in mid-June for the past, oh I don't know, 100 years the ultimate appeals court of this country - the United States Supreme Court - which appears through the winter and spring to be cogitating and moving thoughtfully at the pace of a majestic elephant suddenly puts on a turn of speed, darts into the public eye by announcing a whole flock of decisions on the cases it has chosen to review and always, of course, on matters of great concern to American life.

Thus one June the country heard that the Constitution gave nine-year-old children the right to work 12 hours a day and sometimes through the night.

On a later appeal it was found that the Constitution absolutely forbids any such practice.

One year we heard that the Constitution sets no limit on the length of a train provided the safety of the crew is guaranteed.

One summer Americans learned, from the court, that you cannot run a cemetery and also hold shares in an undertaker's firm.

And one famous year just a little less than 100 years ago it was declared by the court that the rights of any and every individual American are imperilled when an oil company gobbles up its competitors.

The question of whether Mr Bill Gates is a gobbler - a monopolist - or not has not yet come to the court but it may Oscar, it may.

And this past week among the run of cases that the court decided there was one - a heart-rending decision to some old folk - that grandparents do not have an unrestricted right to visit their grandchildren.

"My goodness," said a visiting Englishman, who takes a lively interest in American affairs - he was complimenting the court on the sudden flurry of decisions it has published in this past week.

"Who'd ever think," he went on, "that of all American institutions the Supreme Court would make such a rush to judgement."

It was necessary to point out, as politely as possible, that this sudden eruption of eight or 10 decisions was normal Supreme Court practice at this time of year and no rush to judgement.

"At this time of year" is the key. In mid-June the court is always at the end of its current term which begins the previous September. And the procedure is always the same.

The first week it meets in the fall the court sees that it has before it 10 or 20 times as many cases as it can possibly handle and it has to decide how many, maybe 20 cases, are of supreme and widespread public interest. The rest the Court will not choose to review which often, in effect, is the same as upholding a lower court.

So suppose the court has decided that during the coming term it would look at two dozen cases. It can spend anywhere from two months to nine months hearing lawyers on these cases.

Sometimes during the year you may have noticed on something very pressing, like a challenge to the federal abortion law, the Court publishes its decision as soon as the arguments have been heard.

But whenever they are heard, when all the arguing lawyers have done the nine justices - there are seven men and two women - argue among themselves and eventually take a vote.

A unanimous decision is very rare and too often for many Americans the majority is by five to four - which can mean that in matters of great political or social significance one human being decides American policy. One person rides herd over 100 senators and 435 members of Congress.

It is a majority rule that some people feel will one day have to be changed.

But now in the last fortnight of the court's term the justices are stirred by the normal human urge to get home, so to speak, for the holidays.

And so it pulls together all the decisions that had been written maybe months before and issues three or four judgements in a day.

Most judges, having heard the arguments, retire to their chambers and with the help of their law clerks take weeks, even months, to write their opinion.

If you want to know what happens to anyone who performs "a rush to judgement" let me tell you about the early days of Mr Justice Holmes.

Justice Oliver Wendell Holmes, dead these 60 years, remains a towering figure of Anglo-American law. He was appointed in 1902 by President Theodore Roosevelt and served for 31 years.

Physically a striking, archetypal New Englander - tall, austere, ramrod straight, an almost terrifying presence. A finely combed thatch of white hair and long white moustaches.

On one of the first cases he was assigned to he heard all the arguments, he went home, he sat down in his study and he wrote his opinion and a day or two later he took it and read it to the court. The eight other justices were bewitched, bothered and bewildered.

There was no denying the cogency, the thoughtfulness of his opinion but they had to say private: "Surely it must be superficial if he wrote it in a day. This is a dreadful precedent to set."

And of course it was a threat to their own leisurely habits. Holmes took the hint.

Years later he told a friend that he had not changed his habits. Once he'd heard a case argued his decision came quickly and he went home and wrote it up. But, he said, he then put it in a bottom drawer and left it there for months.

"I learned," he said, "to let my opinions age in the wood."

Now to come down to the present week and a decision which, as I suggested is true of all the cases the court decides to consider, a case of wide of national or public concern, the case of Jennifer and Gary Troxel, grandparents, v Granveille, a young woman, the mother of their two grandchildren.

It's possible, I think, likely that some listeners may suspect that I'm being facetious in taking up the case of a grandparent's right to visit a grandchild but this is a very good example of the way the Supreme Court works in dealing with every aspect of ordinary peoples' lives.

I'm sure that the two grandparents - Mr and Mrs Troxel, 60-year-olds, living in the far western state of Washington - take a passing interest, as we all do, in the coming presidential battle between Governor Bush and Vice President Gore.

And living there on the Pacific coast they may even have been roused, if not excited, by the news that the leaders of North and South Korea have vowed a life together of peace and eventual unity.

But, like the rest of us, the most pressing concern in life is either one's emotional relationship with somebody or the state of one's pocket book or concern for a sick brother, father, friend.

In the Troxell's case, which they've pressed for the past seven years, the most urgent concern in life is the right to visit their two grandchildren whenever they feel like it - which is often. It's a pathetic and harrowing story.

The trouble between the grandparents and the mother of their two grandchildren began in 1993 when the father of the two committed suicide.

That family disaster made the grandparents feel more protective of the fatherless couple and apparently made their mother treasure their company enough to resent the too frequent times the grandparents came to visit.

Think the first picture that comes to mind of this hapless family is of a bereft single mother clinging to her only children and the grandparents feeling possible excessive fondness for their only grandchildren. It's not like that at all.

The mother has eight children, the grandparents have three other children and in all 10 grandchildren.

Well the law of the state of Washington, which is what the mother has been challenging and the grandparents claiming as their legal right, states that: "Any person may petition the court for visiting rights at any time when such visits may best serve the interest of the child."

Justice Sandra O'Connor wrote the majority opinion and she said: "This provision was a breathtakingly broad invitation for state judges simply to substitute their judgement for that of the parents."

In the end the justices voted six to three to strike down the Washington law but no two justices of the nine agreed on what the law ought to be and each wrote conflicting opinions because, as Justice Stevens, put it, "an almost infinite variety of family relationships pervades our ever changing society."

All that six could agree on was that, all sorts of other things being equal, the parent has a superior right to decide on a child's visitors. So the Washington law is unconstitutional.

So long as Americans reverence the Constitution it will go on having an enormous persisting influence on daily life. To be truthful I doubt that one American in 100 - 1,000 - has ever read the Constitution.

I notice a guilty look steel over the faces of practically any company whenever one party chooses to quote, accurately, a clause of the Constitution.

The reputation of the Constitution, in fact, is much like that of Shakespeare - revered but unread. Quietly, guiltily, the mass of Americans take it for granted.

Foreigners, though, never cease to marvel at the astonishing application to our day-to-day living - to insurance, childbirth, the length of a train, grandpas' rights - the relevance of an 18th Century document that one British prime minister, Mr Gladstone, called "the most wonderful work ever struck off at a given time by the brain and purpose of man" - and which a later prime minister, Mr Churchill, called "a rat trap".

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