Legally Speaking: A Warning Label For The Constitution?

John G. Browning Jun. 16, 2010, 9:00am

According to a recent survey by Findlaw, almost two-thirds of Americans can't name even one of the justices on our nation's highest tribunal, the U.S. Supreme Court.

Only 1 percent of Americans can identify all nine justices. The most recognized, according to this survey, is Justice Clarence Thomas, named by 19 percent of those surveyed. Chief Justice John Roberts is a close second known to 16 percent of the responders.

The newest addition to the court, Justice Sonia Sotomayor, is third with 15 percent after her highly publicized confirmation hearing last year.

Among the least known justices are Justice Stephen Breyer (named by only 3 percent of those surveyed), Justice Anthony Kennedy (familiar to only 6 percent), and – despite his lengthy tenure on the court and widely announced upcoming retirement – Justice John Paul Stevens.

It doesn't surprise me that the average American has a better shot at identifying the cast of reality shows like "The Jersey Shore" than naming the nine justices who comprise the highest court in the land.

After all, members of the Supreme Court tend to shy away from publicity.

In addition, they issue rulings as a collective body and individual justices rarely court the spotlight.

But it does concern me that most of us know so little about the judges whose rulings can so gravely impact the lives of all Americans. From issues like discrimination, abortion, environmental protection, or capital punishment to subjects like free speech, school prayer or Second Amendment rights, the decisions handed down by those nine justices can shape the lives of generations to come.

I'm fortunate in that being an attorney has made me more conversant than most when it comes to the Supreme Court, and even luckier that my writing has enabled me to meet several of "The Supremes," as lawyers sometimes refer to them.

I've had a beer with Sandra Day O'Connor, and sipped pinot noir and discussed movies with Antonin Scalia (a big film buff who confesses to a bit of a crush on Marisa Tomei).

On Monday, I was privileged to be in Washington, D.C., for the Burton Awards for Distinguished Achievement in Legal Writing, sometimes referred to as "the Pulitzers for the legal profession."

In reality, this black tie gala had more of an Oscars vibe to it, right down to its red carpet entrance, celebrity sightings and beautiful models handing the crystal awards to the presenters.

The Oscar parallel even extended to one painfully long acceptance speech by a Harvard professor (who was actually accepting on someone else's behalf, but that didn't stop him from boring the audience with all the details of his own upcoming article on regulating the pharmaceutical industry).

Unfortunately, the Burton Awards doesn't have one of those orchestras that begin playing as a cue to remind you that it's time to leave the stage. Well before this guy was through with his longwinded speech, I was hoping for a well-placed shot from a sniper with a tranquilizer gun – and I know I wasn't alone in that thought.

There were legislators like U.S. Sen. John Cornyn and Congressman Ted Poe in attendance, but the judicial star power came courtesy of Justice Ruth Bader Ginsburg, who spoke as part of the awards ceremony itself, and Chief Justice John Roberts, who made a surprise appearance at the cocktail reception following the awards.

In person, Justice Ginsburg is tiny and her frail, bird-like frame seemed lost in her embroidered jacket. She wore delicate white gloves, and spoke somewhat haltingly, seemingly still weakened from her successful battle with pancreatic cancer.

Justice Ginsburg talked about the experience of being only the second woman ever named to the U.S. Supreme Court, and the discomfort of having members of the court present during a President Obama State of the Union speech in which he openly criticized certain recent Supreme Court decisions.

Chief Justice Roberts, meanwhile, was relaxed and even jovial with the crowd of (mostly) lawyers and law professors.

When he asked about the series of articles for which I'd won the Burton Award, I dutifully told him ("When All That Twitters Is Not Told: The Dangers of the Online Juror").

Roberts dryly remarked, "Congratulations. I guess you don't write like a lawyer."

While most Americans would have had trouble picking Justices Ginsburg and Roberts out of the crowd, they wouldn't have missed the celebrities who provided the evening's entertainment – professional dancers Edyta Sliwinska and Alec Mazo from the hugely popular TV show "Dancing With the Stars."

Along with two other dancers, the pair put on an amazing display of the tango, the quickstep, the paso doble and other ballroom dances. Edyta, a beautiful brunette who is known on the program for her skimpy, barely-there costumes and equally daring moves, did not disappoint, particularly during a scorching flamenco number.

I was probably more tongue-tied meeting her afterward than when meeting either of the justices, especially when she thanked me for watching "Dancing With the Stars" and paused to comment on my "werry theeck" (translation: "very thick") hair in her adorable Polish accent. In an instant, I was reduced from confident Burton Award winner to bashful schoolboy.

One of the topics discussed at my table during this gala was warning labels, and how all-pervasive and ridiculous they've become in our litigious society.

The Foundation for Fair Civil Justice recently came out with the finalists for its annual "Wacky Warning Labels Contest." Among them are the label reading "Never operate your speakerphone while driving" – for a product called "Drive 'N Talk;" a motorized go-cart that helpfully warns consumers "This product moves when used" (isn't that the point?); the label on "Piglet Blast," a swine growth supplement that states what should be obvious when it cautions "For Animal Use Only"; and the Bluetooth that alerts users that "use of a headset that covers both ears will impair your ability to hear other sounds" (gee, you think?).

However, none of the warnings or what they imply about the American consuming public concerned me as much as a warning label that didn't make the list, and which I recently saw on a paperback copy of the U.S. Constitution, the Declaration of Independence, and the Articles of Confederation.

The publisher, Wilder Publications (which has also put out a reprint of The Federalist Papers and other classics), felt compelled to place the following statement on its 2008 edition: "This book is a product of its time and does not reflect the same values as it would if it were written today. Parents might wish to discuss with their children how views on race, gender, sexuality, ethnicity, and interpersonal relations have changed since this book was written before allowing them to read this classic work."

What kind of overly politically correct nonsense is this?

I've seen parental advisories on everything from videogames to CDs, but on the U.S. Constitution – the cornerstone of our democracy?

Other than possibly explaining that certain archaic turns of phrase aren't used anymore – just as tricornered hats have fallen out of fashion – nothing else need be said.

While the late Justice William Brennan felt that "the genius of the Constitution rests not in any static meaning it might have had in a world that is dead and gone, but in the adaptability of its great principles to cope with current problems," originalists like Justice Antonin Scalia view such a "living Constitution" approach as an expression of judicial arrogance.

Judges should adhere to the precise words of the Constitution, according to him. Under this approach, it is intellectual hypocrisy to ignore rights clearly enumerated in the Constitution, like the right to keep and bear arms, while "discovering" rights not mentioned, such as a right to privacy.

In Justice Scalia's view, rigid adherence to the original language of the Constitution may lead to results he finds personally repugnant – such as when he joined the majority in striking down the conviction of a flag burner on the grounds that the First Amendment covered such an act.

However, he says, it is better for society to refrain from judicial activism and let the majority will (as embodied by the legislature) make any desired changes.

As Scalia once put it, "If the Constitution is an empty bottle into which we pour whatever values – the evolving standards of decency of a maturing society – why in the world would you let it be filled by judges? Why you would want to leave these enormously important social questions to nine lawyers with no constraints, I cannot fathom."

I tend to agree with Justice Scalia, and with the great Justice Oliver Wendell Holmes, Jr., who wrote "It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong."

I think the framers of the Constitution knew what they were doing.
I'll take the Constitution straight up – no warning labels, no 21st Century apologies, and no adulteration with what someone else feels is politically correct.

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