To Administer Justice
Volume 80, No. 1, Spring 2007
By Louis H. Pollak [PDF]

I count it a great privilege to present the inaugural Arlin and Neysa Adams Lecture on the Constitution. The privilege has two aspects:

The first aspect is that it provides a renewed opportunity to give public thanks for the generosity and the devotion to the public weal that have always been Arlin and Neysa’s trademark. And for those of us who labor in the law, this is an occasion on which we can–without fear of the red light that terminates oral argument in the circuit courts of appeals and in the Supreme Court–recognize the Judge as one whose eighteen years on the Third Circuit were a model of scrupulous craftsmanship in service to the Constitution. Further, here in this academic setting, we can acknowledge the contributions that Arlin Adams–as judge, as scholar, and as teacher–has made to our understanding of the Constitution, and, most particularly, of the First Amendment’s religious clauses.

The second aspect is to bear witness to the significance of this new lectureship. The very act of establishing a lectureship on the Constitution is a signal event. It betokens America’s continuing commitment to the liberty values animating the Declaration of Independence, and to the structures of governance put in place by the delegates to the Constitutional Convention in order to “secure the blessings of Liberty to ourselves and our Posterity.”

I have titled this lecture “To Administer Justice,” and just why I have done so will appear in a few moments. First, I want to explain what I intend to do. I want to talk about what makes for good judging and what cuts against good judging. I will focus on judging because construing the Constitution is so very largely a judicial task. This is not to say that other branches of government have no role in deciding what the Constitution requires. In 1861, Abraham Lincoln, as the incoming President, decided that the Constitution did not authorize states to secede, and also–and this was a matter the departing President, James Buchanan, had been uncertain about–that the Constitution authorized the President, indeed obligated him, to wage war to save the constitutionally ordained union. Lincoln did not go to court to get approval. But the great mass of constitutional decision making is judicial. As John Marshall reminded his fellow countrymen in Marbury v. Madison: “It is emphatically the province and duty of the judicial department, to say what the law is.”

To begin, I intend briefly to recall several cases–some of which arose in this Circuit and some of which went to the Supreme Court–that address two related and very important themes: constitutional constraints, imposed by the First Amendment’s religious clauses, on ceremonial exercises in public schools, and on the content of course offerings in public schools. As noted a moment ago, these are matters that Arlin Adams has given thought to for many years. I would like to make it clear at the outset that my object here is not to provide substantive enlightenment. That would be impertinent, since, for this audience, the cases that went to the Supreme Court are reasonably well-known. Rather, my object is to provide illustrations both of excellent judging and of very deficient judging. This will suggest that even life tenure is not, by itself, a guarantee of good results: intelligence, common sense, hard work, and a strong sense of responsibility are also called for if a judge is to “administer justice” in proper fashion. The second part of the lecture will focus on external impediments to the proper functioning of the judicial process: namely, impediments that can be put in place by the political branches–Congress and the President.

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