Unexpected Good News: Supreme Court justice stands up for court’s role in rule of law

Back row (left to right): Abe Fortas, Potter Stewert, Byron R. White, Thurgood Marshall; front row: John Marshall Harlan, Hugo L. Black, Earl Warren, William O. Douglas, William J. Brennan, Jr.

I recall the first time I learned a little bit about the American judicial system. It was some time in the late 1960s when a public school teacher explained to me what Miranda v. Arizona, 384 U.S. 436 (1966), stood for. I had no course in political science or law. In fact I had only a sketchy public school background in American history. But I immediately knew that there was something immensely noble in a court system devising a prophylactic rule that prevents the state from profiting from abuse of its power. It was not intuition; it was the power of the logic. It was so profoundly right. Why shouldn’t a citizen know his rights, just at the moment he is most in need of invoking them? And why shouldn’t the police advise him of them? After all, their conduct largely determines what kind of a state we lived in. The idea that the United States had a court system that was on the side of the most powerless (people in the maw of the police system) was something that never occurred to me before then. I also considered that it probably never occurred to the judicial systems of many places on earth.

This little atom of information caused me to occasionally read what the Warren Court was doing. And in almost every case I found it admirable–more than admirable, common sense, basic fairness. And by and large it was all written in the kind of straight-forward language that defied mockery. When each of the giants–Earl Warren, William Brennan, Hugo Black, Thurgood Marshall, William O. Douglas–wrote, one could read the special values each of them emphasized. Warren himself valued loyalty and trust. When the government corrupted trust or misused loyalty or made it disreputable, Warren was indignant. Reading these opinions suggested to me that law might be something noble, worthwhile, good for society.

And while it never occurred to me then to actually study law, eventually that is what I did.

Ever since the end of the Warren Court, however, the law gradually became less noble. At first, the Supreme Court began chipping away at the Warren Court precedents. Then with the appointment of Rehnquist as Chief Justice the conservative legal discussions became less elevated, more like pointed policy positions, like right wing campaign slogans. Of course, Nixon largely was responsible for that. There was nothing remotely “noble” about Richard Nixon. And he surrounded himself with people who enjoyed mockery, who operated by denigrating people, who thought they were so clever that they did not need the restraints of law. It was the Berger Court, however (notably Rehnquist recusing himself), that brought Nixon up short on that belief.

Of course practicing law itself was somewhat disillusioning. It was not about doing noble things or helping the disadvantaged. Even when you tried to help the poor, you realized that in the list of things the poor needed, legal assistance (except in criminal cases) was very far down the list.

As time went on the Supreme Court became more conservative and more cynical. The lower federal courts (filled with conservatives who were the more bitter and cynical because they did not have the upward mobility they thought they deserved) were often petulant and abusive. They looked at every case as something that should be settled, unworthy of their time. By the time the Supreme Court received Antonin Scalia and Clarence Thomas (who George H.W. Bush in the height of cynicism proclaimed the best qualified person for the job) the tenor of the high court was set. George W. Bush’s appointments merely added the final curdling to an already congealed court. Decisions like those holding that the federal government has no constitutional power to regulate gun possession in a school zone (United States v. Lopez, 514 U.S. 549 (1995)) or that the mere possibility of a conservative presidential candidate’s equal rights being violated by a state recounting its presidential votes was so great that it justified preliminary injunctive relief (Bush v. Gore, 531 U.S. 98 (2000)) were so brazen that whatever has come since then seems no more than expected.

Hanging Judge Jeffreys by Sir Godfrey Kneller

It has become so dismal that this piece of news, reporting a statement that would have been unexceptionable not too long ago, seems like a ray of sunlight. Justice Anthony Kennedy speaking at a conference of judges of the 9th Circuit in Hawaii said: “Article III courts are quite capable of trying these terrorist cases.” (Article III refers to the article of the US Constitution involving federal courts. He was juxtaposing ordinary federal courts with the “military panels” that have been devised, even under the Obama administration to deal with those captured abroad and stashed in places designed to elude federal court review.) Earlier a panel discussion by the Judicial Conference had “reached a consensus in favor of using civilian courts instead of military commissions in most terrorism cases,” according to the AP report describing Justice Kennedy’s speech. This brief statement is considered news (as it in fact is) in this day and age; as much as it would have been news during the time of the Star Chamber or the tenure of Judge Jeffrey and the Bloody Assizes.

This is something of a ray of light after an entire decade (not yet over) where the professional pundit class (including the New York Times) and the entrenched “moderates” of the Democratic party looked away as the Bush Administration polluted our legal system with legal obscenities like the “unified executive” theory and the torture enablers John Yoo and Jay Bybee, while they smiled with contempt as they sullied our reputation and argued that we did not deserve the legal dignities that were granted us even before the American Revolution. The kind of things they debated and some of the things they enacted were not even conceived of by any of the ministries under George III. It takes a long time and careful handling to ensure that a society is respectful of a fragile system of equal justice and personal rights. It takes a very short time to turn process over to the mobs. It will take a long time to recover from the cynical judges appointed by the last three Republican Presidents. It will take even longer to restore the respect citizens had for the rule of law before the last Republican President.

It is interesting that the one “conservative” on this Court willing to trust the federal courts is a former prosecutor. Of the four hard right wing Justices only Samuel Alito ever prosecuted criminal cases. (The other three may not even have tried cases.) Federal courts can be extremely casual of defendants’ rights. But no one can compare them to the institutionalized abuses that a military panel can inflict. The absurdity of looking to professional military “jurors” to weigh justice can be disposed of after watching the farcical proceedings of the premier case under the new system developed under our Constitutional Law President. The chef of Osama bin Laden, Ibrahim al-Qosi, was sentenced to 14 years in prison — on top of the eight he had served awaiting his “speedy trial” — after the defense and prosecution agreed on a range of 12-15 years. He had pleaded guilty to “material support for terrorism” and there apparently was no evidence to define whether that involved more than making falafels for Osama. But the jurors obediently (as military personnel are supposed to do everything) accepted their instructions from the judge. The fact that there may be a secret deal to give a much shorter sentence does not make this proceeding any less farcical, although it does show that everything is hidden from public view.

If it’s going to improve, it must start somewhere. Justice Kennedy’s remark may not be remembered when they list things like the Magna Carta or the Bill of Rights or the Geneva Convention. But the fact that it’s a significant and newsworthy event shows how far we have to dig ourselves out from.

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