The Supreme Court is not responsive to the popular will-and we all benefit from that detachment.

Recently, in a Fort Worth courtroom, lawyers for Delta Airlines hacked away at the characters and marriages of people dead for more than a year, hoping to save poor Delta some money by showing that Daddy and Aunt Sylvia were really drug users and adulterers whose lives couldn’t be worth that much. The character-assassinating tactics of the airline’s lawyers give new meaning to the slogan, “Delta is ready when you are.” Boy, are they ever.

Every occupational group is capable of disgraceful behavior-lawyers, journalists, fry cooks, priests, plumbers. No journalist will soon forget Janet Cooke and the “composite” ten-year-old drug addict who helped her win the Pulitzer Prize. Polls show that a large segment of the public would believe the ghost of Amelia Earhart before they would believe a reporter. Still, the abuses of lawyers inspire almost universal disgust, spawning the stereotype of the ambulance-chasing mercenary who will argue black into white if the price is right. When a character in Henry VI, dreaming of a better world, said, “The first thing we do, let’s kill all the lawyers,” he was voicing a sentiment already hardened in Shakespeare’s time. In the fourteenth century, St. Yves was canonized because, as the folk rhyme puts it, he was “A lawyer and not a thief/Such a thing is beyond belief.”

Our revulsion for the shyster is heightened because we sense the value of what he has betrayed. The guy who absconds without finishing your swimming pool steals your money; the legal hired gun connives and distorts until he has stolen Truth itself. So we recoil from the ugliness of the Delta trials and similar scenes from the litigious society. Reach for a bar of soap or a bottle if you like, but to restore your respect for the law, take up Henry Steele Commager’s Documents of American History and spend a few hours in the rarefied air of the Supreme Court. There’s an aesthetic pleasure in watching the court “translating the majestic generalities of the Bill of Rights,” in Justice Jackson’s phrase. And translate they must: Reagan’s quest for “strict constructionist” judges who supposedly will interpret the Constitution exactly as the framers intend- ed is hypocritical, because Reagan obviously \ wants justices who will tilt the law to the right. It’s also futile, because any responsible justice will have to find in the Constitution enough flexibility to suit new realities that the framers, despite their wisdom, never imagined. Search the Constitution until you are blue, and you will find no mention of wiretapping. Does that mean that the government and the police can wiretap at will? No. The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects.. .against unreasonable searches and warrants.” Unless you think wiretapping should be a standard tool of the police, be thankful that the courts have “stretched” the Fourth Amendment to forbid, with rare exceptions, the electronic violation of privacy.

Read the court’s decisions in cases like Chambers v. Florida and Escobedo v. Illinois (rights of the accused); Dennis v. U.S. (free speech); and U.S. v. Rumely (freedom of the press). Such cases remind us that our system is superior only because, in striking the balance between authority and liberty, we have leaned toward liberty. And the Supreme Court, as interpreter of the Constitution, has greatly expanded the area of individual freedom, often in the teeth of much public outcry. The court is not responsive to the popular will-and we all benefit from that detachment.

Would a majority of Americans have voted with the court in Chambers v. Florida? In May of 1933, four black men were picked up in a police dragnet, suspected of murder. They were arrested without warrants and jailed for a week without counsel. For five days they insisted on their innocence. On the sixth day the men were kept up all night to be questioned in shifts by fresh detectives. They confessed, whereupon formal charges were brought against them. They were sentenced to death, but seven years later the Supreme Court overturned their convictions. Hugo Black, the great civil libertarian, wrote the opinion: “To permit human lives to be forfeited upon confessions thus obtained would make.. .due process of law a meaningless symbol.” In answer to arguments that such strong-arm tactics were needed to fight crime, Black wrote, “The Constitution proscribes such lawless means irrespective of their ends.” Chambers and the others might indeed have been guilty, but the court had its eye on a larger issue-the protection of liberty for all. “Better that ten guilty persons go free than one innocent suffer,” wrote the English jurist Blackstone, and the court has usually agreed. No doubt the police could obtain many more confessions if they were not restrained by the Bill of Rights and its “technicalities.” Russia and Cuba do not suffer from clogged court dockets.

The annals of the high court are filled with such inspiring moments, especially in cases dealing with freedom of speech. In Dennis v. U.S. (1951), the plaintiffs, leaders of the American Communist Party, had been convicted of advocating the violent overthrow of the government. The court upheld their convictions by a 6-2 margin. Justice William Douglas, for more than three decades a bulwark of liberty, filed a magnificent dissent, and history has vindicated him. Only “full and free discussion” in what he called “the market of ideas” will lead us to truth, he wrote. “We have deemed it more costly to liberty to suppress a despised minority than to let them vent their spleen… .They are miserable merchants of unwanted ideas; their wares remain unsold.”

Surely, “full and free discussion” is the path of wisdom. Consider a more recent example. In the spring primary elections, followers of Lyndon LaRouche won a few nominations in Illinois and elsewhere, mainly due to the ignorance and confusion of voters. Then the country learned what the LaRouchies actually believe-that the Queen of England runs a global drug ring, Kissinger is a traitor, AIDS is a commie plot- and they were exposed as “miserable merchants” of lunatic ideas. There was no censorship of their writings, no attempt to keep them off “Nighdine.” Very few bought what they were selling, but the LaRouchies had their say. It was messy and loud and boisterous. So is America.


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