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Indiana Judges Association: 'You can't eat the Constitution'

David J. Dreyer
December 4, 2013
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ija-dreyerSometimes judges face dilemmas that go beyond the rules. When the problems go past where the law stops, what happens? The endeavor of judging includes balancing the letter of the law with the conscience of the community. Oftentimes, judges can work in between the cracks and resolve a tangible issue by intangible means. But since when do judges get credit for that?

The only United States Supreme Court justice listed from Indiana is Sherman “Shay” Minton. He was a zealous New Deal defender and became famous for his “You can’t eat the Constitution” speech during his 1934 Senate campaign, when he argued that urgent human needs of the Depression outweighed any unconstitutional aspects of the New Deal.

Minton finished at the top of his class in high school (New Albany), college and law school (both Indiana University), and won a Yale scholarship for a master’s in law. He was known as an aggressive debater, a challenging intellect on public issues and an active participant in public affairs. Former President William Howard Taft, his Yale teacher, once reprobated him during a vigorous case discussion by saying, “If you don’t like the way it is interpreted, you will have to get on the Supreme Court and change it.” (Both of them took this advice.) He was a captain in World War I, a U.S. senator, aide to President Franklin Roosevelt, a judge on the 7th Circuit Court of Appeals, and nominated to the Supreme Court by his friend Harry Truman. Yet he is consistently considered mediocre among Supreme Court justices, mainly due to his lack of notable opinions and his brief seven years on the high court. But shouldn’t Minton, like all judges, merit credit for things the statistics don’t show?

Today, the mark of the judiciary is all too often divisiveness – not because judges are necessarily at odds, but because the public is more used to seeing ideological confirmation hearings than informative discussions on jurisprudence. But when Minton was nominated to the Supreme Court in 1949, the Senate Judiciary Committee asked him to testify about his 1930s Senate views defending court restructuring. In those days, Supreme Court nominees ordinarily did not appear before Congress or have contentious confirmation hearings. So Minton refused the request by politely explaining that his judicial role would necessarily be distinguished from his previous Senate work and should not be compared. The committee quietly withdrew their request, and Minton effectively precluded the kind of partisan court confirmation fights that we now are unable to stop.

Today, popular court justices often make headlines for socializing and duck-hunting with their executive branch buddies while appeals are pending. But Minton’s low-key personal life was affected by his resentment of racial discrimination in the 1950s. His trusted African-American aide always drove with him between New Albany and Washington. On several occasions, Minton became angry and confrontational with hotel and restaurant establishments along the way who would not allow his aide to enter.

And within the high court, where neither the public nor academics know how things are really decided, Minton was known as an essential team player and peacekeeper. As a Democrat progressive senator, Minton surprised some by his inclination toward judicial restraint. Historians conclude that he carried the cause for New Deal legislation when it was needed to persuade a “conservative” 1930s court. In the 1950s, he decided that more caution was necessary to balance the emerging “liberal” justices. But a judge does not get credit for the wisdom of consensus-building.

His character and courage were most evident in the famous Brown v. Board of Education decision. As the junior justice, it fell to him to vote last. At the time, the vote appeared to be 4-4. On one hand, Minton’s visceral aversion to racial injustice was unqualified. Within private court conferences, he spoke vehemently against the effects of segregation on children and the whole country. On the other hand, his jurisprudence required a more cautionary decision. Minton reportedly cast the deciding vote for the most progressive Supreme Court ruling in history. But what statistics will never show is that he was the key justice in persuading all his colleagues to make Brown unanimous.

Like most judges, Shay Minton’s achievements were numerous, but largely unmeasured. His biographer Alan T. Nolan once wrote, “He was a man without a sense of his own importance and was utterly unable to take himself too seriously.” Today, we sure do need more people like that. Justice Felix Frankfurter once said that if Minton is not remembered as a great justice, he should always be remembered as a great colleague. What better compliment can any person have? When he died in 1965, his memorial service in Washington D.C., was conducted by none other than Thurgood Marshall, a public testament to Minton’s private significance.

Well, if we need great legal minds, there are plenty of them. But if we are hungry, we can’t eat the Constitution. We will always need good thinkers to nourish creative solutions. We should be grateful this Thanksgiving season that we will always have committed judges to solve tough problems, find the right balance, and lead us every day.•

__________

Judge David J. Dreyer has been a judge for the Marion Superior Court since 1997. He is a graduate of the University of Notre Dame and Notre Dame Law School. He is a former board member of the Indiana Judges Association. The opinions expressed are those of the author.

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  • Cynical much?
    "You cannot eat the constitution" sounds like a cynical perspective toward the rule of law. In other words, in a national emergency the rule of law goes out the window, so that some strong man like FDR, Tito or Obama can rule with an iron fist, albeit allegedly benevolent? Is that the upshot here? If so, please consider those who fear such cynicism could cost us everything ... PROF JONATHAN TURLEY: Thank you, Mr. Chairman (Congressional hearing). The danger is quite severe. The problem with what the president is doing is that he's not simply posing a danger to the constitutional system. He's becoming the very danger the Constitution was designed to avoid. That is the concentration of power in every single branch. This Newtonian orbit that the three branches exist in is a delicate one but it is designed to prevent this type of concentration. There is two trends going on which should be of equal concern to all members of Congress. One is that we have had the radical expansion of presidential powers under both President Bush and President Obama. We have what many once called an imperial presidency model of largely unchecked authority. And with that trend we also have the continued rise of this fourth branch. We have agencies that are quite large that issue regulations. The Supreme Court said recently that agencies could actually define their own or interpret their own jurisdiction. (House hearing, December 3, 2013)

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  1. Can I get this form on line,if not where can I obtain one. I am eligible.

  2. What a fine example of the best of the Hoosier tradition! How sad that the AP has to include partisan snark in the obit for this great American patriot and adventurer.

  3. Why are all these lawyers yakking to the media about pending matters? Trial by media? What the devil happened to not making extrajudicial statements? The system is falling apart.

  4. It is a sad story indeed as this couple has been only in survival mode, NOT found guilty with Ponzi, shaken down for 5 years and pursued by prosecution that has been ignited by a civil suit with very deep pockets wrenched in their bitterness...It has been said that many of us are breaking an average of 300 federal laws a day without even knowing it. Structuring laws, & civilForfeiture laws are among the scariest that need to be restructured or repealed . These laws were initially created for drug Lords and laundering money and now reach over that line. Here you have a couple that took out their own money, not drug money, not laundering. Yes...Many upset that they lost money...but how much did they make before it all fell apart? No one ask that question? A civil suit against Williams was awarded because he has no more money to fight...they pushed for a break in order...they took all his belongings...even underwear, shoes and clothes? who does that? What allows that? Maybe if you had the picture of him purchasing a jacket at the Goodwill just to go to court the next day...his enemy may be satisfied? But not likely...bitterness is a master. For happy ending lovers, you will be happy to know they have a faith that has changed their world and a solid love that many of us can only dream about. They will spend their time in federal jail for taking their money from their account, but at the end of the day they have loyal friends, a true love and a hope of a new life in time...and none of that can be bought or taken That is the real story.

  5. Could be his email did something especially heinous, really over the top like questioning Ind S.Ct. officials or accusing JLAP of being the political correctness police.

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