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.


  • 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. If a class action suit or other manner of retribution is possible, count me in. I have email and voicemail from the man. He colluded with opposing counsel, I am certain. My case was damaged so severely it nearly lost me everything and I am still paying dearly.

  2. There's probably a lot of blame that can be cast around for Indiana Tech's abysmal bar passage rate this last February. The folks who decided that Indiana, a state with roughly 16,000 to 18,000 attorneys, needs a fifth law school need to question the motives that drove their support of this project. Others, who have been "strong supporters" of the law school, should likewise ask themselves why they believe this institution should be supported. Is it because it fills some real need in the state? Or is it, instead, nothing more than a resume builder for those who teach there part-time? And others who make excuses for the students' poor performance, especially those who offer nothing more than conspiracy theories to back up their claims--who are they helping? What evidence do they have to support their posturing? Ultimately, though, like most everything in life, whether one succeeds or fails is entirely within one's own hands. At least one student from Indiana Tech proved this when he/she took and passed the February bar. A second Indiana Tech student proved this when they took the bar in another state and passed. As for the remaining 9 who took the bar and didn't pass (apparently, one of the students successfully appealed his/her original score), it's now up to them (and nobody else) to ensure that they pass on their second attempt. These folks should feel no shame; many currently successful practicing attorneys failed the bar exam on their first try. These same attorneys picked themselves up, dusted themselves off, and got back to the rigorous study needed to ensure they would pass on their second go 'round. This is what the Indiana Tech students who didn't pass the first time need to do. Of course, none of this answers such questions as whether Indiana Tech should be accredited by the ABA, whether the school should keep its doors open, or, most importantly, whether it should have even opened its doors in the first place. Those who promoted the idea of a fifth law school in Indiana need to do a lot of soul-searching regarding their decisions. These same people should never be allowed, again, to have a say about the future of legal education in this state or anywhere else. Indiana already has four law schools. That's probably one more than it really needs. But it's more than enough.

  3. This man Steve Hubbard goes on any online post or forum he can find and tries to push his company. He said court reporters would be obsolete a few years ago, yet here we are. How does he have time to search out every single post about court reporters and even spy in private court reporting forums if his company is so successful???? Dude, get a life. And back to what this post was about, I agree that some national firms cause a huge problem.

  4. rensselaer imdiana is doing same thing to children from the judge to attorney and dfs staff they need to be investigated as well

  5. Sex offenders are victims twice, once when they are molested as kids, and again when they repeat the behavior, you never see money spent on helping them do you. That's why this circle continues