Last edited: February 28, 2005

Low Court, High Principles

The Cavalier Daily, February 28, 2005

By Noah Peters, Cavalier Daily Columnist

FEDERAL lower-court judges are not often prominent players in our political system. Lacking the glamour and high profile of a Supreme Court appointment, lower-court judges move within the narrow confines of Supreme Court precedent. Yet the remarkable life of Robert Merhige, who died Feb. 18 after undergoing open-heart surgery, shows just how much of an impact lower-court judges can have on our society. Merhige, who stood at the forefront of some of the most explosive issues in political life during his term as a judge for the Eastern District of Virginia, provides an example of how judges, by standing up for principles in the face of public controversy, can alter society for the better.

Recall, for example, the legacy of District Court Judge Frank Johnson of Alabama, a white judge who stood up to hostile local opinion in declaring bus segregation unconstitutional in 1956, furthering the cause of the civil rights movement; or John Marshall Harlan, who boldly stated that the Constitution should aspire to moral goals and alone condemned segregation at a time when Supreme Court precedent stood precisely against him. Merhige was a judge in mold of Johnson and Harlan, dedicated to standing up for his ideals even at the cost of his popularity.

Most importantly for the University, Merhige issued a preliminary order on Sept. 8, 1969 ordering that gender not be taken into account in the University’s admissions process. Merhige’s order was significant, for he bucked widespread opinion calling for women to be admitted under a quota system and stood up for the principle of gender equality in education.

Merhige won his greatest notoriety, however, for his bold actions in pursuing desegregation of the Richmond schools. The Richmond metropolitan area had long avoided desegregating its schools, adopting in 1966 an ineffective “freedom of choice” plan later struck down by the Supreme Court on the grounds that it placed the onus of desegregating public schools on black children and their parents by forcing them to choose to enter a hostile all-white public school.

Faced with this set of affairs, Merhige followed Supreme Court precedent at the time, which called for segregation to be eliminated “root and branch” and ruled the freedom of choice plan inadequate, ordering busing. For this action, Merhige was attacked vociferously by Richmond whites; his dog was shot to death and a cottage on his property was burned to the ground. As Merhige told the Richmond Times-Dispatch before his death,”I thought people would say, ‘We don’t like the little S.O.B., but he’s following the law.’ That didn’t happen.” When the busing plan failed to achieve integration and instead merely spurred “white flight” from the city of Richmond, Merhige, in an unprecedented action, ordered busing between Richmond and two wealthy suburban counties, amassing 325 pages of evidence to support his conclusion. Though Merhige’s order was overturned by an appellate court and disapproved by the Supreme Court in a similar case arising from Michigan, Merhige’s actions showed courage and principle in facing down ferocious local opposition in attempting to truly integrate schools in the historically segregated Richmond metropolitan area.

Though Merhige’s busing efforts ultimately failed, he succeeded in changing constitutional law in another significant way. Merhige dissented from the finding in 1975’s Doe v. Commonwealth’s Attorney, one of the first efforts across the country to have sodomy laws declared unconstitutional.

For a decade until 1986’s Bowers v. Hardwick, Doe was the nation’s premiere ruling on the constitutionality of sodomy laws. The U.S. District Court for the Eastern District of Virginia upheld the state’s sodomy laws on the grounds that it represented a moral judgment by the legislature not subject to judicial review, and that precedents recognizing a “right of privacy” did not apply to homosexuals. Merhige wrote a strongly-worded dissent in which he argued that “a mature individual’s choice of an adult sexual partner, in the privacy of his or her own home, would appear to me to be a decision of the utmost private and intimate concern. Private consensual sex acts between adults are matters, absent evidence that they are harmful, in which the state has no legitimate interest.” This argument would ultimately become constitutional law some 30 years later in 2003’s Lawrence v. Texas. But at the time, Merhige’s argument was novel and flew in the face of the popular consensus of the times.

While it is easy to overlook the contributions of judges to our society in favor of the rhetoric of prominent politicians, judges, by standing up for principle in the face of political opposition, can positively change society. Even those of us who urge a narrow role for judges in our system should admire the moral courage of judges who stand up for their principles.

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