Saturday, April 08, 2006


This article is about: American Supreme Court; the case Griswold Vs Connecticut 381 US 479; Family planning and Right to Privacy, and of course the decision making process.
Photograph - courtesy Wikipedia

Judges decide important cases more with their heart rather than with their head. The result in such cases is not on the basis of reasons; rather it is reasons, which are based on the result.

I don't have any such experience, as I am not a judge. No one in my family has been a judge. I am a lawyer, without any pretensions of becoming a judge. But as you know in Allahabad outwardly, every lawyer has no pretensions of becoming a judge. (see Endnote-1) But in his heart, it is the other way round.

It is not that every promising lawyer in Allahabad has gone on to become a judge. A few even have gone on to become great lawyers. But it was fortunately or unfortunately, for the reason that the judgeship was never offered to them, or was offered at the late stage. And some have come back after being a judge. I am no exception. I am also one of the Allahabad lawyers. But enough of lawyer's psychology: Let's talk about the judge’s psychology.

We have all sorts of judges. Some are pro-prosecution. Some are pro-defence. If few are pro-employer, then others are pro-employee- some conservative some liberal. A lawyer must know the heart of his judge. Therein lies the key to his Success. As Holmes would say (The Common Law) ,
 ‘The life of law has not been logic: it has been experience... even the prejudices which the judges share with their fellow men have had a good deal more to do than mere syllogism in determining the rules by which men should be govern. The law ... cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.’ 
In crucial cases it is the ‘major inarticulate premise’ which govern the case, and not the head.

The other day I was going through a book titled Super Chief: Earl Warren and His Supreme Court-A Judicial Biography by Bernard Schwartz. It narrates how Griswold Vs Connecticut, the most important legal decision of 1964, was decided. But to understand that, here is some information about the working of the Supreme Court of the United States and the facts of the case.

Any lawyer in India will find the Supreme Court of United States a strange place. But litigants will love it. If not for its decisions, then at least for its procedure.

The court consists of nine judges. All of them sit together to decide any case: unlike the benches that we have here. A case could be taken to the court if it involves an interpretation of the Constitution of the United States of America. The Supreme Court receives petitions for certiorari for quashing the judgements of the courts below and they are known as certs, or as Holmes would say the damned certs.

The first thing, if the court wishes to take up a case, is to note jurisdiction, or to admit the case. No lawyer is heard at this stage. Judges with the help of their law clerks work on certs and discuss in a confidential conference whether to hear or not to hear a case. At least four out of the nine have to agree to hear the case. It is only then that the court agrees to hear a case. Not many are admitted; approximately 200 to 250 out of thousands that the court receives are admitted.

Once the court agrees to hear a case it is scheduled for written and oral arguments. Unlike our courts where hearing can go on for days, only half an hour's time is allotted to a lawyer to present his case. This schedule is strictly observed. After half an hour a red light goes on. A lawyer has to stop immediately and if he is in the midst of a sentence then immediately after completing the sentence.

The book narrates an incident when a lawyer arguing his case in the last half-hour before noon did not notice the red light go on at his lectern. He was reading and he continued to read from his notes. Finally he looked up. The bench was empty. The justices had quietly risen, gathering their black robes and gone to lunch.

Alas, we don’t have this practice. And how we waste time here. But lawyers love their gibberish, and their fee has to be justified.

The next crucial step, after the arguments, is the selection of one of the nine judges to write the majority opinion. By tradition the senior most judge in the majority assigns one of them to write the opinion. Similarly the senior most among the judges in minority assigns one of them to write the dissent. This was established by Chief Justice Marshall. But often to write for five or more men means, at times, trimming and qualifying the ultimate reach of a doctrine - A compromise. But the result is better, and judgements are shorter and clearer.

But before I forget, let’s go back to Griswold Vs Connecticut, reported in 381 US 479. Under a Connecticut law, Any person who uses any drug, medicinal article or instrument for the purpose of preventing conception shall be fined not less than fifty dollars or imprisoned not less than sixty days, not more than one year or be both fined and imprisoned. And any person who assents, abets to commit any offence is to be punished as if, he were the principal offender.

Griswold, a doctor and Executive Director of the Planned Parenthood League of Connecticut gave information, instruction and medical advice to married persons as to the ways of preventing conception. She was fined 100 dollars. The highest court of the State confirmed her conviction. She filed the petition before the Supreme Court challenging the constitutionality of the law. All judges voted to hear the case. The lawyers filed their written arguments. In his written submission counsel for Griswold challenged the law on the basis of every provision of the Constitution. The state asserted
‘Constitutionality may not be decided on desirability of the legislation. The forum for correction of ill-considered legislation was not for the court but a responsive legislation.’

The case was argued on March 29, 1965. The conference to decide the case was held on April 2, 1965. In the conferences the Chief Justice expresses his views first and the judges follow according to their seniority. But when the vote is taken, it is the other way round junior most go first. Chief justice Warren addressed the conference first. He favoured reversal, but had no clear theory upon which to base the result. His heart had said yes. But the head was yet not clear.

‘I can't say', the Chief stated. 
‘It neither affects the first amendment rights of the doctors nor that the State has no legitimate interest. We can't balance, use equal protection, due process.’ But he observed ‘conviction could be reversed on the ground that law was being administered in an arbitrary manner’.

Justice Douglas thought that the law could be voided on the Right of Association. Some thought how strange it would be ‘to allow the police to search the sacred precincts of marital bedrooms for the telltale signs of the use of contraceptives.’ The majority had decided the result, but reasoning was yet not there.

Ultimately, Justice Douglas wrote the opinion of the court. He voided the statute not on any specific provision of the Constitution, but on the penumbra of bill of rights - the Right of Privacy. Other concurring opinions gave additional ground of ‘Due process.’ (see Endnote-2)

The majority had decided the result first, found the reasons afterwards. But, isn’t it better that crucial decisions are taken from the heart and not from the head? Otherwise, how else could American judges have evolved the doctrine of Separate but equal being inherently unequal or One man one vote. But it is good only if the heart moves on the facts of the case, nothing less and nothing more.

A word about the book Super Chief- It deals with Constitutional development in America under Chief Justice Warren. It is not as interesting as The Court Years 1939-75, the autobiography of William Douglas, but presents an objective view of the cases decided and is worth its price for anyone interested in the Constitutional law.

Endnote-1: This article was written many years ago before I even dreamt of becoming a Judge. It was only when my son choose to study engineering instead of law that I accepted the offer of judgeship. This was after the release of the 1st edition of this book.

Endnote-2: Due process occurs in Section 1 of the 14th amendment of the American Constitution. The relevant part of this is as follows:

No State shall make or enforce law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law: nor deny to any person within its jurisdiction the equal protection of laws.

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