Constitutional lawyer Tribe wants independent Supreme Court
Boston — On Nov. 12, Larry Tribe will shuttle down to Washington from his Cambridge, Mass., home to do one of the things he does best and what many of his colleagues dream of doing but few actually accomplish: argue a case before the United States Supreme Court. Appearing as an advocate before the nation's highest judicial tribunal may seem old hat to the Harvard professor and renowned constitutional lawyer. Laurence H. Tribe, soft-spoken and generally informal in his manner and style, has played this role about a dozen times before. And he has won some impressive victories. Among them: He successfully defended California's moratorium on nuclear power plants and Hawaii's land-reform act; he championed the establishment of a legal precedent for the right o f the public and press to attend criminal trials; and he won a case that clarified the principle that government powers may not be delegated by law to a religious body.
Professor Tribe's newest venture before the court will be to argue on behalf of the City of Berkeley, Calif., in defense of a controversial rent-control ordinance that landlords and homeowners seek to strike down as violating federal antitrust law.
California's Supreme Court, in upholding the municipal measure, said the law was designed to cope with a housing crisis by providing adequate shelter for the poor, minorities, students, and the disabled.
Mr. Tribe is renowned for his defense of the downtrodden -- whether they be poor, a member of a minority group, criminally accused, or a political underdog. He is an unabashed civil libertarian and an especially staunch defender of the First Amendment guarantees of freedom of speech and religion.
Sometimes the latter has led the constitutionalist to unpopular causes -- such as his defense of the Rev. Sun Myung Moon, the controversial South Korean evangelist convicted by lower courts of filing false federal income tax returns. Tribe tried to get the US Supreme Court to review this conviction on the grounds that the government allegedly singled out the Rev. Mr. Moon unfairly for prosecution because of his unorthodox religious beliefs. The high court refused to take the case. And the Moon convictio n stood.
Tribe has been called a grandstander, a publicity hound, and an unbending liberal advocate by some critics. There are those who see his ambition as unbridled, perhaps extending to a quest for a Supreme Court appointment someday.
But his supporters, among them present Supreme Court Justice William Brennan and former Justice Potter Stewart, view him as a seasoned Supreme Court scholar and practitioner.
In addition to his advocacy and professorial roles, Larry Tribe has gained a broad reputation for his writing and lecturing on constitutional matters.
His 1978 treatise, ``American Constitutional Law,'' has become a primer for legal scholars, lawyers, and judges across the country. It has been cited in hundreds of court cases.
The Harvard scholar has two new books hot off the press -- ``Constitutional Choices'' (Harvard University Press) and ``God Save This Honorable Court'' (Random House), the latter timed for release with the opening of the 1985-86 Supreme Court session next Monday.
On a recent visit to the Monitor offices, Tribe discussed the themes of ``God Save This Honorable Court.'' He contends, among other things, that:
Democracy would be better served if the Senate took a more active role in approving, or turning down, presidential nominees for the Supreme Court. It now has this power to review but often acts as a ``rubber stamp,'' he says.
Unrestricted presidential power today gives the White House occupant a ``virtual blank check to remake the Constitution'' through judicial appointments.
The Supreme Court, as led by Chief Justices Earl Warren (1954-69) and Warren E. Burger (1969-present), has ``been within a fairly broad mainstream of moral and political consensus in this country,'' he says. But radical forces are now afoot in the land that would apply a political ``litmus'' test to prospective judges and could change the complexion of the judiciary for decades to come.
An overlitigious nation is steadily moving toward delegalization through programs that offer an alternative to the courts. In that trend, however, there is danger of depriving the ``relatively powerless, the relatively poor'' from a ``decent and fair hearing.''
The nation should guard against ``single-issue'' justice, the passage of laws based on ideological commitment -- on either side -- to such issues as abortion, capital punishment, or school prayer.
The court should be ever more sensitive to protecting the rights of individuals to free speech, religious liberties, and privacy, as well as fair-trial guarantees.
Tribe's thesis in pushing for a more active Senate role in Supreme Court appointments is that, despite historical examples of justices who have turned on those chief executives who tapped them, ``presidents generally get what [and who] they want.''
And the constitutional scholar stresses that if a particular president is able to elevate more than one or two judges to the high court, that chief executive is able to wield disproportionate power in influencing issues that touch on people's lives from the ``bedroom to the board room.''
Tribe would have the Senate -- which he says is more ``representative'' of the population because it embraces members of both political parties and from diverse geographical areas -- carefully weigh the qualifications of prospective court appointees and approve only those who convincingly prove they would make decisions based solely on legal and constitutional -- and not partisan or ideological -- considerations. He urges them to disqualify those who would prejudge certain issues.
Beyond this, Tribe calls for a ``broadly participatory and self-conscious national debate about the kinds of people and the kinds of philosophies that ought to be represented on the Supreme Court.''
Curtis J. Sitomer writes the Monitor's weekly ``Justice'' column.