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Jewish World Review / July 21, 1998 / 27 Tamuz, 5758

Paul Greenberg

The new elegance

G-D BLESS THIS HONORABLE COURT. The good news from Washington is that the Supremes have rediscovered common sense. Some of us thought we had seen its funeral as a legal principle back in 1994, when Philip K. Howard came out with his classic polemic, The Death of Common Sense: How Law Is Suffocating America.
It was the book of the year, or should have been.

For those interested the book is available in paperback

But in case after case this year, the Supreme Court of the United States managed to resurrect common sense. Not to mention grace, elegance and clarity. Thomas Jefferson called it republican simplicity.

Perhaps the simplest and most refreshing of the court's decisions this term came in its 6-to-3 ruling against the misbegotten line-item veto, which essentially gave the executive the power to legislate. Under this bill, a president could veto specific appropriations or tax breaks in a bill rather than veto the whole thing. He could thus change the law to suit his taste before signing it.

By giving away its power over taxes and spending, line by line, Congress substituted a confusing and dangerous new political dynamic for the old separation of powers, and this court wasn't having it. To quote one congressman, Colorado's David Skaggs: ``The Supreme Court has saved Congress from itself.'' And the separation of powers for the people.

Those of us who want to trim government spending will have to find a better way than simply delegating the job to the president, with all the dangers that change risks. To quote the concurring opinion of Justice Anthony M. Kennedy: "Failure of political will does not justify unconstitutional remedies.'' Congress will have to do the job itself. Or the people will have to insist on a new Congress. Some powers cannot be surrendered without surrendering liberty, too. A people cannot be free without being self-reliant. Some things we have to do for ourselves, like keep an eye on Congress before it gives away not only its rights but ours.

In another return to common sense, not to say common decency, the court upheld the sensible requirement that the National Endowment for the Arts take into account "general standards of decency and respect for the diverse beliefs and values of the American public'' when awarding grants for the arts. Without that kind of simple respect for others, and for the decencies of life, no consensus and therefore no public art might be possible.

Remember Karen Finley? She's the woman who smears herself with chocolate -- it's supposed to be feces in order to represent the degraded state of women in this goshawful sexist society, She saw in the court's simple, clear decision the end of freedom. The chocolate lady seems to confuse freedom with her right to take your money for her "art.''

Patrons have rights, too, and the patron of public art is the public, which should have the right to assert that there are much better uses for its money, not to mention for perfectly good chocolate. If she wants to make like a chocolate bar, let her do it with her own money.

The court also upheld the attorney-client privilege -- even after the client has died. This is more than an act of respect for the dead; it is a service to the living. The court now has assured that an American can talk to his lawyer with some assurance that what he says will not be revealed after his death. This time, the independent counsel, seeking information about the late Vince Foster and what he might have told his attorney, went too far.

Unfortunately, the attorney-client privilege has been sorely abused in other cases by the administration, which has claimed it on behalf of White House lawyer, friend, trouble-shooter and general political operative Bruce Lindsey. But his client is the one who pays him: The people of the United States. And he should answer to his client. With the attorney-client privilege there should go an attorney-client responsibility -- to the American people. If it turns out that his immediate superior, the president of the United States, needs a criminal lawyer, then let the president hire one. This guy works for us.

Dissenting from both the decision against the line-item veto and for the attorney-client privilege was Associate Justice Antonin Scalia. It may be said of Mr. Justice Scalia that if he had a brain, he would be dangerous. He does, and he is. He may be the clearest thinker and therefore writer on the court. When this justice errs, at least his errors are remarkably clear. It is a great service to the people -- and the language.

Mr. Justice Scalia does not wrap his wrong-headed decisions in the verbal fog that other errant justices favor. So that when he puts "practical'' considerations above great ideas in law -- like the separation of powers or the confidentiality of attorney-client conversations -- the dangers of his law become unmistakably clear. In these cases, he has reached for short-term gains at the risk of long-term liberty. It's not a trade Americans should make.

In all three of these important cases, the Supreme Court revived the clarity and simplicity of classical law, putting clear principle above fuzzy drift. After all, tradition is coming back in architecture, grace in manners, civility in politics and even a certain refinement in daily life. Why not law? At this rate, by the next century we may have advanced to the Victorian Age.

American society has had to resurrect some old standards out of sheer necessity, as the consequences of abandoning tradition have become clear for the family, the state and, yes, the law. For in the end, as Oliver Wendell Holmes observed, law is shaped by "the felt necessities of the time.'' Americans now hunger for a return to the clarity and simplicity -- the profound, many-layered simplicity -- that marks our greatest poets and painters -- and has characterized our greatest jurists.

There is a word for the simple, artful, effective solution that mathematicians use when they hit upon it: elegant. Let us return to the elegant in law, too.