Which quality in a judge has the greater value -- judicial compassion or judicial restraint?
It is an old question, rooted in the distinction between justice, which is one thing, and law, which may be quite another. In the wake of California's referendum last month, the courts are about to revisit the issue. The state voted to deny certain public benefits, most notably public education, to immigrants who have entered the state unlawfully.
Opponents have filed suit, but for the time being everything is on hold. It will be February before state courts hear argument in the matter. In this lull let me turn the clock back to June 15, 1982, when the Supreme Court decided Plyler v. Doe. You are not likely to find a more absorbing exposition anywhere of the competing doctrines of judicial compassion and judicial restraint.
The case originated in 1975 when Texas, like California, decided to cut off state funds for the education of the children of unlawful immigrants. Mexican children in the Tyler district brought suit. They charged that by excluding them, the state had violated their constitutional right to equal protection of the laws. The high court agreed, but the court split 5-4 on the issue.
Justice William Brennan spoke for the majority in ruling that Texas could not deny to "a discrete group of innocent children the free public education that it offers to other children residing within its borders."
Under the 14th Amendment, said Justice Brennan, the undocumented children plainly are "persons" within the state's jurisdiction. As such, they are entitled to equal protection of the laws.
True, equality is not absolute. States may classify persons differently, provided the classification bears "some relationship to a legitimate public purpose." But what legitimate public purpose would be served by barring the children from Tyler schools? Mr. Brennan could find none. He could not conceive of a rational justification for penalizing children for the unlawful acts of their parents. Education may not be a fundamental right, he conceded, but it is a fundamental value.
"Illiteracy," said Justice Brennan, "is an enduring disability. The inability to read and write will handicap the individual deprived of a basic education each and every day of his life."
The affected children were in Texas through no fault of their own. Justice Brennan doubted that the undocumented families impose any net burden on Texas taxpayers. They work; they pay taxes. He could not understand "precisely what the state hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare and crime."
Chief Justice Warren Earl Burger spoke for the four dissenters. If it were the court's business to set the nation's social policy, he said, "I would agree without hesitation that it is senseless for an enlightened society to deprive any children -- including illegal aliens -- of an elementary education."
But it is emphatically not the court's business to set social policy. The court has "no authority to strike down laws because they do not meet our standards of desirable social policy, 'wisdom' or 'common sense.' " This is the task of the political branches.
The responsibility for dealing with immigration lies with Congress, but Congress had not coped with the problems created by illegal immigrants. The legislative and executive branches had not provided leadership. The chief justice protested that Mr. Brennan would have the Supreme Court provide such leadership itself, and that is not the court's job.
Mr. Burger said bluntly that Justice Brennan's majority was abusing the 14th Amendment in an effort to become an omnipotent and omniscient problem solver. "That the motives for doing so are noble and compassionate does not alter the fact that the court distorts our constitutional function . . ."
The chief justice made a telling point: "When the court rushes in to remedy what it perceives to be the failure of the political processes, it deprives those processes of an opportunity to function." If the Mexican children were excluded, Congress would soon be compelled either to deport the families or to pay the state for schooling their offspring.
The challenge to California's referendum eventually may wind up in the high court. How would today's nine justices vote? Let me guess: Four would follow Mr. Brennan's compassion, four would stick with Mr. Burger's restraint. The swing vote of Justice Anthony Kennedy could go either way.
James J. Kilpatrick is a syndicated columnist.