Wednesday, June 10, 2009

The Supremes

Aside from the satisfaction of predicting a Supreme Court decision, which I did in the case decided the other day that reversed the West Virginia Supreme Court decision, in which the deciding vote was cast by a judge who had received a huge contribution ($3 million) from the party in whose favor he ruled, I realized that we are hanging by 5-4, and Justice Kennedy is clearly a true man of the middle.

I suppose my view has been a tempered one but the unflinching reactionary cadre of Scalia, Thomas, Roberts and Alito make one recall the 1930s court with the Four Horsemen of Reaction: VanDevanter, Sutherland, Butler and McReynolds. I came of age with the Warren Court and despite the attacks on it by legal purists, I defy anyone to show that we are not better off because of Brown v. Board of Education and Miranda v. Arizona, to name just two of their forward-looking decisions. Of course it would have been better for the legislatures, federal and state, to have made those rulings but does anyone truly believe that they ever would have done so? Today, we cannot even get changes made in our labor law that is so tilted in favor of management.

Roosevelt got to name nine justices and his choices stand the test of history, beginning with Hugo Black, sent up because he would be confirmed through Senatorial courtesy but with a Klansman's robe in his past. He turned out to be a leader and mostly a progressive one. William O. Douglas was an even more inspired progressive, if personally careless in his writing. FDR did make a choice that was probably too easy to be wise when he promoted Stanley Reed from the Solicitor General's post. Reed at best was a follower and not terribly progressive. Frankfurter will always be controversial and the man can annoy one so much with his false modesty embodied in the judicial restraint approach. However, today's conservatives are far more conservative and intellectually deprived compared to him. Roosevelt realized the integrity and general wisdom of Harlan Stone in promoting him to Chief Justice even though he was a Republican.

Leaving out Jimmy Byrnes, who fortunately left the court midwar to become "Assistant President", Roosevelt's last appointments were superb. Robert H. Jackson was not only one of the greatest of lawyers but he thought for the ages. And he did not fit into easily political categories. Today, some see him as conservative, but mostly he comes across as amazingly perceptive and wise, as befitted his career as a lawyer who made his way to leading the bar, not only as Attorney General and Solicitor General, from a log cabin in far Western New York. The only negative aspect of his service as Chief Prosecutor at the Nuremburg Trials is that others less exceedingly able might seize on his leave of absence as a useful precedent, while he was one in a million. Rehnquist's attempt to color Jackson, when serving as his law clerk, as a reactionary of Rehnquist's sort was more than despicable.

The final two Roosevelt appointees were the most progressive: Frank Murphy of Michigan and Wiley B. Rutledge of Iowa. Both were the strongest defenders of our civil liberties we have ever had--consider only their dissents in the Yamashita case, citing Thomas Paine, about guaranteeing rights even to those who would have oppressed us.

I hope Obama's appointments rise to the level of almost all of the Roosevelt nine. Despite popular belief to the contrary, it does make one wish to have known who else might have been named had the "court-packing" proposal been adopted in 1936. Perhaps one of the present four backward-lookers may have the revelation that caused Owen J. Roberts to shift his vote in a few cases at the time of the 1936 embroglio. This was key to the defeat of the proposal to add justices, and Roberts's shift labelled "the switch in time that saved nine." But Roberts had some high points in his otherwise traditionally Republican career that presaged his behavior. He had been the outmanned prosecutor for the U.S. Government at Teapot Dome who succeeded in nailing those oil company miscreants against the odds.

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