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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. Two cops shot execution style in NYC. Was it first amendment protest, or was it incitement to lawlessness? Some are keeping track of the body bags: http://www.breitbart.com/big-government/2014/12/13/al-sharpton-leads-thousands-in-saturday-march-on-washington-dc/

  2. From the MCBA: “This situation is not just about the death of Michael Brown, but the thousands of other African-Americans who are disproportionately targeted and killed by police officers.” The association said it was “saddened and disappointed” by the decision not to indict Ferguson police officer. HOPING that the MCBA will denouce the execution style killig of two NYC police officers this day, seemingly the act of one who likewise believes that the police are targeting blacks for murder and getting away with it. http://www.mediaite.com/online/two-nypd-cops-fatally-shot-in-ambush-in-brooklyn/ Pray this violence soon ends, and pray it stays far away from Indiana.

  3. "Am I bugging you? I don't mean to bug ya." If what I wrote below is too much social philosophy for Indiana attorneys, just take ten this vacay to watch The Lego Movie with kiddies and sing along where appropriate: https://www.youtube.com/watch?v=etzMjoH0rJw

  4. I've got some free speech to share here about who is at work via the cat's paw of the ACLU stamping out Christian observances.... 2 Thessalonians chap 2: "And we also thank God continually because, when you received the word of God, which you heard from us, you accepted it not as a human word, but as it actually is, the word of God, which is indeed at work in you who believe. For you, brothers and sisters, became imitators of God’s churches in Judea, which are in Christ Jesus: You suffered from your own people the same things those churches suffered from the Jews who killed the Lord Jesus and the prophets and also drove us out. They displease God and are hostile to everyone in their effort to keep us from speaking to the Gentiles so that they may be saved. In this way they always heap up their sins to the limit. The wrath of God has come upon them at last."

  5. Did someone not tell people who have access to the Chevy Volts that it has a gas engine and will run just like a normal car? The batteries give the Volt approximately a 40 mile range, but after that the gas engine will propel the vehicle either directly through the transmission like any other car, or gas engine recharges the batteries depending on the conditions.

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