(New York Times, Wednesday, April 19, 1995)
Go directly to quotations from Frost.
By commanding the Federal courts to reopen cases, a group of securities fraud suits that had already gone to final judgment, Congress stepped out of its constitutional role and impermissibly exercised Judicial power, the Court held in a 7-to-2 decision. Writing for a majority of six Justices, Justice Antonin Scalia adopted a categorical, almost talismanic view of the separation of powers. His 30-page opinion invoked the Founding Fathers as well as Chief Justice John Marshall's declaration in his 1803 landmark decision, Marbury v. Madison, that it was the "province and duty" of the Federal courts "to say what the law is,"
Justice Scalia said, "The framers of our Constitution lived among the ruins of a system of intermingled legislative and judicial powers" in which colonial legislatures routinely meddled in judicial functions. The framers created separated powers as a "structural safeguard" against such abuses, he said, "establishing high walls and clear distinctions because low walls and vague distinctions will not be judicially defensible in the heat of interbranch conflict."
The decision, which upheld a 1993 ruling by the Federal appeals court in Cincinnati, will have relatively little immediate impact. Fewer than two dozen cases are directly affected, all of them securities fraud suits that were dismissed as the result of a Supreme Court decision in June 1991 that retroactively shortened the time limits for bringing such suits. It was these cases that Congress ordered the Federal courts to reinstate in the law it passed in December 1991.
In his opinion, Justice Scalia said he knew of no previous instance in which Congress had required the Federal courts to set aside final judgments.
But beyond the immediate context of this unusual case, the underlying issues of the relationship among the branches of Government and of how strictly the Supreme Court defines and enforces the boundaries present recurring questions that have been at the forefront of many politically charged policy debates.
In recent years, separation of powers questions have figured in decisions over the power of independent counsels, and Congressional efforts to curb Presidential power to send troops into combat, a debate that remains unresolved.
The decision today, Plaut v. Spendthrift Farm, No. 93-1121, is not necessarily a shift by the Court. Rather, it is a reminder that in the view of the Court today as much as at any time in the past, the separation of powers remains an essential part of the constitutional system requiring judicial vigilance at the highest level.
Neither of President Clinton's two Supreme Court appointees subscribed to Justice Scalia's view. Justice Stephen G. Breyer agreed with the majority, in a separate opinion, that the law at issue violated the separation of powers but he objected to Justice Scalia's analysis as too rigid and unnecessarily broad.
Responding to Justice Scalia's image of high walls between the branches, Justice Breyer said: "The unnecessary building of such walls is, in itself, dangerous, because the Constitution blends, as well as separates, powers in its effort to create a government that will work for, as well as protect the liberties of, its citizens.
Justices Scalia and Breyer engaged in a duet of quotations
the poetry of Robert Frost. To Justice Scalia's statement that
"Separation of powers, a distinctively American political
doctrine, profits from the advice authored by a distinctively
American poet: Good fences make good neighbors." Justice Breyer
"One might consider as well that poet's caution, for he not only
notes that 'Something there is that doesn't love a wall,' but also
writes, 'Before I built a wall I'd ask to know / What I was
walling in or walling out."'
Justice Ruth Bader Ginsberg joined Justice John Paul Stevens in a
dissenting opinion. Justice Stevens said that far from being
unconstitutional, 'the law at issue, an amendment to the
Securities Exchange Act of 1934 known as Section 27A(b), showed
how the Court and Congress could cooperate "in providing for the
impartial application of legal rules to particular disputes." Document URL: http://www.english.upenn.edu/~afilreis/88/frost-scalia.html
Last modified: Wednesday, 18-Jul-2007 16:25:55 EDT
"One might consider as well that poet's caution, for he not only notes that 'Something there is that doesn't love a wall,' but also writes, 'Before I built a wall I'd ask to know / What I was walling in or walling out."'
Justice Ruth Bader Ginsberg joined Justice John Paul Stevens in a dissenting opinion. Justice Stevens said that far from being unconstitutional, 'the law at issue, an amendment to the Securities Exchange Act of 1934 known as Section 27A(b), showed how the Court and Congress could cooperate "in providing for the impartial application of legal rules to particular disputes."
Document URL: http://www.english.upenn.edu/~afilreis/88/frost-scalia.html