In one form or another, the proverb has been around for a thousand years: He who pays the piper calls the tune. On Feb. 28, the Supreme Court turned the proverb on its head. The court freed lawyers of the Legal Services Corp. to play whatever tunes they please.
The court's 5-4 decision was a bummer. In the holy name of "free speech," Justice Anthony Kennedy created a brand-new First Amendment right — a right for recipients of tax funds to ignore the instructions of Congress. True, the right is a right to be exercised exclusively by lawyers, a privileged class, but the ramifications cover a wide spread.
Let me turn back the clock to a time nearly 60 years ago. A young reporter is covering a beat that includes the civil justice courts of Richmond, Va. The reporter witnesses a melancholy parade of defendants, mostly black defendants, who have run into financial troubles. They have been unable to pay the rent, and their creditors have hauled them into court.
In those antediluvian days the proceedings were usually summary. Bang! Richmond Furniture Co. vs. Johnson! Motion is sought for judgment in the amount of $25.71! Entered! Bang! Next case! Bang!
To this young reporter, it seems cruelly unfair. Few of the defendants have legal counsel. If they have an arguable case, they don't know how to argue it.
Turn the clock ahead to 1974. Congress is about to pass a bill to create the Legal Services Corp., designed to provide counsel for people who cannot afford counsel on their own. The young reporter, now a middle-aged Washington columnist, whoops it up for the bill. He asks, Do we truly believe in equal justice? Then poor defendants should be provided counsel.
Members of the House agree. Sponsors of the bill assure the House that lawyers funded by the LSC will devote their energies only to "day-to-day problems involving housing, domestic relations, consumer affairs and employment."
It didn't work out that way. Over the next 20 years, the Legal Services Corp. came to be dominated by showboats pursuing their own agendas. Congress tried repeatedly to push the LSC back to fundamentals. Lawyers from the LSC could not get involved with school desegregation, abortion, draft-dodging or anti-labor activities.
In its opinion two weeks ago, the Supreme Court cast that prerogative aside. The restrictions "distort the legal system," said Justice Kennedy, and "threaten severe impairment of the judicial function."
This is patent nonsense. It boggles the mind to contend that acts of Congress can somehow be "insulated" from judicial challenge. If the Legal Services Corp. is closed as an avenue to welfare reform, a hundred other highways are open.
Nothing compels Congress to subsidize doctors, lawyers, librarians or the directors of art museums. But to the extent that taxpayers hire such pipers, the taxpayers have a right to call the tunes the pipers play.
Universal Press Syndicate