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Why Hillary Clinton Has Always Been a Republican In the first of a series of profiles, Alexander Cockburn and Jeffrey St. Clair chart the formative years of Hillary Clinton. Watch her as she zigzags from Nixon campaigner and vote-fraud investigator in 1960 to Goldwater Girl and President of Young Republicans at Wellesley to her internship for Gerald Ford and campaigner for Nelson Rockefeller. Witness her reaction to the student protests at Yale and the demonstrations at Grant Park during the Democratic Convention in 1968. Learn how she and Bill vowed to "remake" the Democratic Party--using the Nixon model HRC learned about as a member of the House impeachment staff. And much more! Plus: David Price on anthropologist Andre Gunder Frank, the FBI and the Bureaucratic Exile of a Critical Mind.
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Today's Stories July 6, 2007 Marjorie
Cohn July 5, 2007 Andy
Worthington Mike
Stark Norman
Solomon Michael
Schwartz Susie
Day Jacob
Hornberger Bill
Hatch Don
Fitz John
Wright Website
of the Day
July 4, 2007 St.
Clair / Frank Vijay
Prashad Carl
G. Estabrook Ron
Jacobs David
R. Dow Claudia
Johnson William
S. Lind Gregory
Afghani Paul
Edwards D.
K. Wilson Niranjan
Ramakrishnan Thomas
Jefferson Cindy
Sheehan Website
of the Day
Bill
Quigley Gary
Leupp Lynda
Brayer Richard
Thieme Helen
Redmond David
Swanson Jacob
Hornberger Ayesha
Ijaz Khan Franklin
Lamb Ray
McGovern Kevin
Zeese Dave
Lindorff Website
of the Day
Andy
Worthington Nina
Serrano Jack
Hirschman Paul
Craig Roberts Bill
Williams Anthony
Papa Sonja
Karkar Louay
Safi Anthony
Gregory Monica
Benderman Website
of the Day
June 30 / July 1, 2007 John
Ross Alan
Farago Peter
Quinn Christopher
Brauchli Robert
Fisk Uri
Avnery Judith
Siers-Poisson Saul
Landau Abbas
Zaidi Ron
Jacobs Ralph
Nader Donald
Worster Mike
Whitney Jacob
Hill Kenneth
Couesbouc Missy
Beattie Mohammad
Kamaali Ramzy
Baroud Leonard
Peltier Phyllis
Pollack Poets'
Basement Website
of the Weekend
June 29, 2007 St.
Clair / Frank Brian
Cloughley Patrick
Cockburn Gilad
Atzmon Dave
Lindorff Jennifer
Matsui / Kevin
Zeese Daniel
Klimek David
Michael Green John
Chuckman Website
of the Day
June 28, 2007 Bill
Quigley Vijay
Prashad Margaret
Kimberley Winslow
T. Wheeler Philip
Rizk D.
K. Wilson Bill
Williams Mahmoud
El-Yousseph Richard
Rhames Paul
Krassner Website
of the Day
Marjorie
Cohn Dr.
Susan Rosenthal, MD Alan
Farago Carla
Blank Matthew
Abraham Sunsara
Taylor Russell
D. Hoffman Robert
Weissman Sen.
Russ Feingold Paul
Buchheit Website
of the Day
June 26, 2007 Jonathan
Cook Ralph
Nader Corporate
Crime Reporter Ron
Jacobs Martha
Rosenberg John
Chuckman Denny
Haldeman Anthony
DiMaggio Stephen
Fleischman William
S. Lind Website
of the Day
Paul
Craig Roberts Jennifer
Loewenstein Bob
Anderson Robert
Pollin Patrick
Cockburn Eva
Liddell Dan
Bacher Larry
Atkins Mark
Brenner James
Rothenberg Website
of the Day June 23 / 24, 2007 Alexander
Cockburn Jeff
Taylor Oren
Ben-Dor Gary
Leupp Robert
Fisk David
Rosen Russell
Mokhiber Alison
Weir Robert
Fantina D.
K. Wilson Nicole
Colson Stephen
Soldz, Steven Reisner and Brad Olson Dave
Lindorff Benjamin
Dangl Michael
Dickinson Poets'
Basement Website
of the Weekend
June 22, 2007 Andy
Worthington Sherwood
Ross Eliana
Monteforte Robert
Weissman Richard
Rhames Christopher
Brauchli Ramzy
Baroud Ehud
Krinis, David Shulman and Neve Gordon David
Michael Green Kathryn
Webber Website
of the Day
June 21, 2007 Peter
Linebaugh Natsu
Saito Ron
Jacobs Saree
Makdisi John
Stauber Scott
Liebertz Tom
Clifford Robert
Jensen Michael
J. Smith Jeb
Sprague Website
of the Day
Omar
Barghouti Andy
Worthington Margaret
Kimberley Robert
Weissman Russell
D. Hoffman Rannie
Amiri Stephen
Lendman Dave
Lindorff David
Swanson Anne
Dachel Website
of the Day
June 19, 2007 Ralph
Nader Dr.
Shepherd Bliss Bill
and Kathleen Christison Jeff
Leys Dave
Zirin Chris
Floyd Ben
Terrall Anthony
Papa VIPS Linda Flores Website
of the Day
John
Ross Paul
Craig Roberts Martha
Rosenberg Norman
Solomon Don
Santina Isabella
Kenfield James
Brooks Eva
Liddell Sam
Husseini Akiva
Eldar Website
of the Day
Alexander
Cockburn John
Halle Robert
Fisk Andy
Worthington Uri
Avnery Fred
Gardner Saul
Landau P.
Sainath Missy
Comley Beattie Alan
Gregory Walter
Brasch Website
of the Weekend
June 15, 2007 Alan
Farago Andy
Worthington Michael
Simmons Franklin
Lamb Gary
Leupp John
Ross Website
of the Day
June 14, 2007 Michael
Donnelly
Faisal
Kutty Harry
Browne Charles
Jonkel Steven
Higgs Bruce
Dixon Bruce
K. Gagnon
Website
of the Day June 13, 2007 Glen Ford Marjorie Cohn Bill Christison Charles Jonkel Silvia Cattori Richard Gott Firmin DeBrabander William S. Lind Keith Rosenthal Website of the Day June 12, 2007 Jeffrey St.
Clair Paul Craig
Roberts P. Sainath Ralph Nader Omar Waraich Dave Lindorff Harvey Wasserman Malini Johar
Schueller Ramzy Baroud Website of
the Day
June 11, 2007 Patrick Cockburn Paul Craig
Roberts Uri Avnery Norman Solomon Eva Liddell Rannie Amiri Rachel Voss Christopher
Brauchli D. K. Wilson Website of
the Day
Alexander Cockburn George Ciccariello-Maher Saul Landau Robert Fisk Brian Cloughley Ron Jacobs Ward Boston Conn Hallinan Leonard Peltier Lawrence Davidson John Ross Kate Allan Fred Gardner Stephen Fleischman Monica Benderman Geoff Bailey Missy Beattie Patrick Dyer Tim Lengerich James Irani
Gary Leupp Michael Tillery Michael Simmons Poets' Basement Website of the Weekend
June 8, 2007 Serge Halimi Patrick Cockburn Jeffrey St. Clair
Paul Craig Roberts William Blum Joshua Frank Lance Selfa Dave Lindorff Lawrence Ferlinghetti Website of the Day
Marjorie Cohn Soldz, Reisner
and Olson: Soldz, Reisner
Paul Craig Roberts Bill Quigley Silvia Cattori Carl G. Estabrook Ellen Taylor Corporate Crime
Reporter Brenda Norrell D. K. Wilson Kevin Zeese Website of
the Day
Alain Gresh Gary Leupp Steven Sherman Bruce Dixon Corporate Crime Reporter Brian M. Downing Ron Jacobs George Bisharat Nicole Colson Bruce K. Gagnon Website of the Day
June 5, 2007 Michael Neumann Jonathan Cook David Vest Robert Fantina Hoffman, Parsneau and Chowdhury John V. Walsh Richard Cretan Adam Engel William S. Lind Myles Hoenig Jim Minick Website of
the Day
Nizar Latif Diana Johnstone Gregory Wilpert Paul Watson Susan Rosenthal,
MD Richard Ward Eva Liddell Zahi Khouri Evelyn Pringle China Hand Karyn Strickler Website of the Day
June 2 / 3, 2007 Alexander Cockburn Marc Levy Martin Smith Diana Johnstone John Ross Uri Avnery Sunsara Taylor Richard Neville P. Sainath Missy Comley
Beattie Nisrine Abiad Rannie Amiri Margot Pepper Eric Stewart Ralph Nader Dan Bacher Shaun Harkin Richard Rhames Frederick Hudson Poets' Basement Website of the Weekend
Dave Marsh Saul Landau David Phinney Robert Jensen Stanley Heller Yifat Susskind Robert Weissman Paul Buchheit William S.
Lind Sherwood Ross Stephen Lendman Website of the Day
Robert Bryce Patrick Cockburn Gary Leupp Kathy Kelly Marjorie Cohn Chris Kutalik
Corporate Crime Reporter Dave Lindorff Website of the Day
May 30, 2007 James Ridgeway Franklin Lamb Terrence E. Paupp Uri Avnery Alan Maass Rock and Rap
Confidential Ralph Nader Nirmal Ghosh Jean Daniels Tom Barry Website of the Day
Stephen Soldz Eliza Ernshire Ron Jacobs Dave Lindorff Evelyn Pringle Mike Whitney David Swanson John Holt Cynthia McKinney Martha Rosenberg Website of the Day
Bill Quigley Col. Dan Smith Cindy Sheehan Dr. Susan Block Jeeni Criscenzo Douglas Valentine Website of the Day 
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July 6, 2007 The Wrecking Ball CourtIt's Scalia Time!By DAVID MICHAEL GREEN Thirty-three years ago, on assuming the presidency in the wake of Richard Nixon's resignation, Gerald Ford famously sought to ease the worries of a troubled nation with these words: "My fellow Americans, our long national nightmare is over". Today, I am tempted to offer a warning, not a palliative: My fellow Americans, our long national nightmare is just beginning. I say this because, just as the Bush administration and the regressive political movement of which it has been the most recent and most potent manifestation are recessing into a toxic pool of failure, incompetence, disaster and public abhorrence--purely of their own making--the politics they represent have now been all but firmly established on the Supreme Court for the foreseeable future. Like a nice case of herpes, this is a gift that will keep on giving for a very long time. It is also precisely according to plan. The Supreme Court is arguably the most powerful lawmaking institution in American government--the be-all, end-all and final stop for any policy debate in which the country is engaged--and was therefore always the great prize for the cancer of regressive politics which has been metastasizing in America since Reagan, if not earlier. The presidency was always important to the right, and Congress too, especially the Senate. But the chief importance of these institutions was ultimately their capacity to serve as vehicles for remaking the third branch of government, by loading it up with young reactionaries serving lifetime terms, who would therefore sit on the bench making policy for a very, very long time. And who, by virtue of the Constitution's design, would be all but untouchable by any influence, check or balance, likely including public opinion. That this was crucial to movement conservatives became obvious in one of the rare episodes where actions taken by King Bush manage to enrage them, and where they abandoned and reviled him across the miasma of their noxious talk radio swampland. When a second vacancy on the Supreme Court opened up, Bush's instinct was to choose someone he could count on to stand foursquare behind his single most important issue in all of American politics. So he chose Harriet Miers, a sycophant's sycophant, whose most compelling credential was unquestioning loyalty to The Man, a loyalty that even a guy with Bush's level of prescience could foresee would be very necessary in the years to come. That was his issue--not abortion, not Guantánamo, not school prayer not stem cells--just finding a reliable vote to keep George out of jail no matter what. Conservatives went crazy at this real and apparent betrayal. This was supposed to be their big moment, the opportunity they had been scheming and striving toward for decades, and what does Bush do (after they had spent years backing him, right down the line)? He nominates a candidate for the court who was all about George, not about regressivism. Miers possessed neither the dependability of a solid conservative record to assure them she wouldn't become another Blackmun, Stevens or Souter and move to the left while on the Court, nor the intellectual heft to shape its decisions or to persuade other justices to vote for regressive policies. So the movement hammered its own president, Miers withdrew her name from consideration, and they got Sam Alito instead. Then we all got Alito. Stupidly, and with great cowardice aforethought, Senate Democrats helped confirm both Alito and Roberts before him, both of whom had learned from Robert Bork's experience that honesty is, ahem, not always the best policy. Are you a Neanderthal who wants to be on the Court? My advice is to hide your politics well while testifying before the Senate. There'll be a lifetime of opportunity later to swing your wrecking ball as wide as you want. Meanwhile, though, refuse to take any position (even previously articulated positions) on the principle that every case is unique and you can't commit to a decision on future matters. Be sure, also, to hide behind vague judicial platitudes like your general respect for honoring precedent. If you want to really do it up right, like Clarence Thomas did, you can even pretend that you've never really thought much about abortion, probably the single most controversial issue in American politics prior to the Iraq war. Trust me, Democrats in the Senate will not block your confirmation. Many will even vote for you. Some will go so far as to publicly sing your praises. Then, once the vote is in, you can party down all you like. There's no going back. And so it was that the regressive movement got its great and long sought after prize--a Supreme Court so backward that many of its decisions would have looked retro even in the nineteenth century. And not just the Supreme Court, either. Between Reagan and the two Bushes--not to mention classic Clintonian centrism in judicial appointments--the entire federal judiciary is now heavily stacked with right-wingers pledged to maintain their destructive march to the sea, and all of them sitting in jobs with lifetime appointments. This was the movement's great quest all along, and the decisions of the Supreme Court this year demonstrate the scope of their victory, with far more to come. There is now a relatively solid five-member reactionary majority on the Court for most every question put before it. Where Sandra Day O'Connor was once the swing vote on the center-right of the court who would curb some of its worse excesses, that position--but not with the same politics--is now occupied by Anthony Kennedy, arguably the most influential and powerful person in American government today, at least on domestic policy questions. The current Supreme Court is today comprised of two more or less solid blocs. On the right is the really scary Scalia camp, which also includes clones Clarence Thomas and Samuel Alito, and which also gets the vote--albeit usually dressed up in a pretty bow to appear less threatening--of Chief Justice John Roberts. There is no left on the Court, with the possible exception of John Paul Stevens, and the reference by many commentators to the 'liberal' Supreme Court faction is a misnomer. Souter, Ginsburg and Breyer are classic centrists, very much in the manner of the presidents--George H. W. Bush and Bill Clinton--who appointed them. Perhaps from the distant perspective of Scaliaville they may appear liberal, but then so also might Augusto Pinochet. In any case, those four quite frequently vote together in an attempt to block the worse excesses of the radical right. Nowadays they usually lose, because kingmaker Kennedy--who almost single-handedly, by casting his vote with one or the other of these blocs, decides the law of the land--mostly votes with the regressives, especially on the important issues, and certainly more so than O'Connor did when she occupied the catbird seat. What does that mean in terms of the law of the land in America? What best characterizes the Roberts Court (or should we call it the Scalia Court?, or the Kennedy Court?), more than anything else, is its worship of power. If one is looking for a single narrative theme by which to draw a thread through the Court's decisions, the best summary concept of the majority's position is that the powerful in society should be even more powerful, and the little guy should be squeezed and squashed at every opportunity. That means that the very doors to the courts themselves should slammed in the face of many of those who formerly might have had a day in court. Looking back at the record of the last term, this theme was so pronounced that Yale Law School professor Judith Resnik dubbed it "the year they closed the courts". That means that opportunities to be heard for potential appellants rotting away in jail or facing the death penalty have diminished to the point of near extinction. Even, remarkably, in situations where they suffer due to little or no fault of their own. In one case this year, an inmate's lawyer filed a brief three days later than the standard deadline, because a federal judge had given the lawyer the wrong date. Too bad, said the hard-core right. Motion rejected without consideration. (The story is, of course, a little different if your name is Libby, though.) It means that business, especially big business, grows ever more untouchable with every decision handed down by this court, leading Robin Conrad of the US Chamber of Commerce to remark, "It's our best Supreme Court term ever". Indeed. Somehow, though, I don't think the same will be said by investors and shareholders who are now less able to hold company management culpable for their misdeeds than they used to be, on the basis of Court decisions this term. I don't think it will be said by consumers who will pay the literal price for the court overturning a century-old antitrust precedent which has long blocked price-fixing collusion between manufacturers and retailers. And I don't think the widow of a smoker who was awarded massive damages against Philip Morris, only to have those tossed out by the Supreme Court, will be calling this the best term ever. The bias toward power in this court means that racial minorities will no longer benefit from school integration programs seeking to promote opportunity, integration and diversity. Those days are now over, by a five to four vote. It means that abortion access was narrowed this year, also 5-4. It means--in a truly absurd and highly revealing stretch--that the Court has now made it impossible for employees to sue for salary discrimination any time beyond 180 days from the receipt of each paycheck. So if you find out years or decades later that your pay was considerably lower than that of your coworkers because, say, you're a woman--which was precisely what happened in this particular case--too bad. Thus making it almost impossible for workers to get what is owed them, and providing enormous incentives for employers to discriminate rampantly with little potential cost for doing so. Can you guess the vote on this case? Hey, you're catching on! The list goes on and on. There is even the occasional exception, but the theme is powerful and dominant. This is your Court. This is your Court on regressivism. Any questions? We should probably get used (which does not mean lay down) to more of the same, and very likely worse to come for the foreseeable future. Anything can happen to anyone at any time, but most of the members of the Court look like they can remain there for a long time if they choose to. The right-wingers were purposely chosen in part for their youth, and only Scalia (71) and Kennedy (70) from that crowd are at all up in years. Yet they could have another twenty years on the Court at that age, and of course, even were either of them to leave now, their replacement would be a Bush appointee. Meanwhile, those progressive readers of this article who are disposed to making appeals to supernatural deities may wish to include John Paul Stevens in their prayers. He is both by far the oldest member of the Court and its most liberal. I doubt seriously he could be pried away from his position while George W. Bush is in the White House, a supreme act of patriotism for a man who might want to retire for a few final years of rest. How old is Stevens? He was appointed by Gerald Ford, a president not so many Americans could today distinguish from Millard Fillmore. He wears bow ties, okay? He's 87. To say we're lucky to have him is the understatement of the decade. So the best-case scenario for progressives right now is not very good at all. It involves essential stasis, with perhaps Stevens being replaced two to five years from now by a Democratic president's choice, if we're moderately lucky. And unless that president is Al Gore, chances are such a replacement will be another Clintonian centrist, less progressive than Stevens, but nevertheless part of the non-troglodyte bloc. Then, of course, there is the question of whether Republican senators, assuming there are enough left after the tsunamis of 2006 and 2008 take them out, would allow even a centrist nominee, let alone a progressive, to be considered (in the Senate, sixty votes are effectively required to do anything). But even after all that, we're still left with a largely solid regressive majority of five on the Court, continually turning the clock back to Great Grandpa's golden years, when economic and political elites were all powerful. No more of this middle-class BS anymore. No more of this equality crap. That was all so very twentieth century. The great ironies of all this are at least two-fold. The first is that this regressive judiciary has now only fully consolidated its power at the very moment when its core ideology is being repudiated by the public, and that repudiation is showing up powerfully nowadays in the other two branches of American government. Congressional Republicans got a "thumpin'" in 2006, and now see that 2008 looks far worse. Accordingly, they are opening up Grand Canyon-like fissures between themselves and a Republican president who is in the process of transitioning from just plain unpopular to truly despised. And yet it is this very same loser ideology which will continue to determine public policy because of lifetime appointments to the federal court system, and the very intentional program of populating it with ideological clones. It's sort of like a latter-day version of the Boys From Brazil. Only even more fun, because these nice young fellows have control of the world's sole superpower. The other great irony here emerges from the first. Americans love to believe that they are proud owners of the world's greatest democracy. But the final arbiter of much policy making in the United States is the Supreme Court, not only the least democratic of the three branches of government, but in fact almost completely non-democratic at all. Consider the present case. Policy in this country is now being decided by five individuals clothed in black robes, meeting in secret, and offering whatever explanation or criteria they choose to offer (or not) to justify their decisions. They are chosen through a process which might be described, at best, as indirectly quasi-democratic in nature. They serve for life. They cannot be removed from office except by impeachment, which almost no one considers to be justified for the crime of possessing bad judicial politics. Or even--like Scalia or Thomas--horribly bad politics. You basically have to be caught with a bag of cash or a law clerk under your robes to be impeached, and probably neither of those would actually be sufficient. And, if you think that is bad, consider this. Changing the 'five' in the above scenario to just one would not be an inaccurate description of our current governing arrangement. Indeed, because of existing political configurations, there is quite arguably just one person--robed in black, serving for life, chosen through a non-democratic process, unanswerable to anyone, and almost completely untouchable--who sets policy in this country. His name is Anthony Kennedy and, just about every time it counts, he is very regressive. All of which begs some important questions about the nature of America's form of government as construed by the Constitution and two centuries of practice. Not that any change of this magnitude is imaginable (unless, of course, the Court were liberal and Vice President Dick Cheney decided to wave his magic and seemingly endlessly potent Constitutional wand and declare it nonexistent), but it is nevertheless worth wondering at this juncture, just what is the point of the Supreme Court? Conservatives will accuse me of being a fair-weather friend to the Court. They are actually not correct in this accusation--in fact, I've been wondering about this for some time now, well before the judicial coup of the regressive right was brought to fruition this year. And, of course, their hypocrisy on this score (what?--conservative hypocrisy?--the mind fairly reels!) is far more potent, if not as obvious as it should be. For decades, faced with a liberal or moderate Court, the right has been screaming its many code words for enervating the institution in any way possible. The federalism or states' rights ploy, for example, was meant purely to relocate authority to judicial fora more conducive to regressive victories. The hysteria about 'activist' judges was meant to intimidate courts from modernizing backward policies in cases which came before them. The 'respect for precedent' rap was cut from the same cloth. But now that the inmates have gained control of the asylum, you won't be hearing any of those lines from the bonkers crowd anymore. Now that they own the judiciary, 'judicial restraint' is for sissies. (Which, by the way, is essentially what Scalia has been calling Roberts in a series of remarkable separate opinions on cases where they otherwise agree with each other on the outcome. If ever you needed an indicator of how far gone these cats are, the idea that John Roberts' jurisprudence is insufficiently rabid to satisfy the mainstream of today's conservative movement ought to send shivers up your spine.) In any case, when I wonder aloud about the purpose of having a Supreme Court, it is not because my politics are now on the losing side of the Court's majority, and my thoughts do not therefore represent a mirror image of their abandonment of the judicial restraint mantra now that they own the Court. Rather, it is a question of comparative politics and genuine constitutional engineering. As far as I can see, such a high court in a given polity could--and in our case, does--have two essential functions. One is chiefly appellate in nature. That is, the institution serves to supervise, correct and unify the application of garden variety rules of law in the practice of the lower courts. Thus, if the law of the land is that each defendant in a criminal case has the right to counsel, then there needs to be a place for an individual who believes he or she was denied that right to file an appeal. This is very basic jurisprudence--or even the administration of jurisprudence--and as such, I have no problem with a court designed to serve this function, as many do in other democracies, such as the Law Lords in the British system. The second possible function of such a court is far more akin to actual lawmaking, or, minimally, law reversing. This capacity, which includes the power known as judicial review, makes the court an equal governing partner with the legislature, whether that is a parliament or Congress, allowing the judiciary to strike down duly enacted legislation for being unconstitutional or somehow otherwise unsuitable, according to the wisdom of the justices. This is a far more potent and robust power for any high court to possess, and most of them, in fact, do not. American democracy is rather unique in the substantial degree of legislative power vested in the courts. In most other democracies, parliament--the representative expression of the public's political will--rules, almost or even completely unchallenged by any court. And, depending on one's particular vision of democracy, that makes a lot of sense for reasons already discussed above. After all, if you're going to call it a democracy, shouldn't democratic institutions make policy, and non-democratic ones do something else? I mostly agree with that philosophy, though there is one valid rationale I can see for allowing a non-democratic high court to possess such powers. And that is that democratic institutions can sometimes arguably be 'too democratic'. How is that possible? Shouldn't the will of the people be the fundamental law of the land? Yes and no. Suppose your country has as among its bedrock and constitutional principles the notions of freedom, equality and due process. Now suppose there is some out-group--blacks, Jews, gays, communists, whatever--who are in fact being subjected to a treatment that is in gross violation of these principles, but nevertheless very popular with the majority of the public. Who's going to protect those minorities? Members of Congress? The president? Probably not, especially if they want to keep their jobs. But how about a court of jurists who are charged with acting in the name of defending just such ideas, and who are insulated from the public wrath their decisions would engender by virtue of their lifetime appointments? Consider, for example, the case of Brown versus the Board, handed down in 1954. That was not an era that was, shall we say, particularly well known for its progressive racial attitudes in America. The controlling case to that point was Plessy versus Ferguson, which allowed for racial separation, as long as equality was maintained. Even if we leave aside the absurd contortions we have to twist ourselves into in order to find a way to describe the lot of black Americans then (or now) as remotely equal to that of whites, the Warren Court rightly figured out that separate would always be inherently unequal. Spot on they were, but to say that the Brown decision was unpopular would be a bit like describing Lebanon as unlucky. Let's put it this way: My guess is that on any given day of any given year since 1789 no more than one out of ten Americans could name the Chief Justice of the United States Supreme Court. But after Brown, "Impeach Earl Warren" bumper stickers were commonly found in the South (and probably Boston too). I'd be pretty shocked if the Warren Court didn't have a pretty decent prior sense of the fury their decision would precipitate. But they did it anyway, because it was the right thing to do, and because they could rest fairly well assured that neither Congress nor any president was going to sacrifice their political careers to get the job done, and thus they had to do it if it was to happen. The Miranda or Gideon cases were similar in nature. Just as African Americans were an unloved out-group at the time, so of course, were accused criminals. Which member of Congress or executive branch official was going to go to bat for them, to make sure they got the fair legal process which was their due? Who was going to stand up for the completely just but unpopular principle of providing counsel to defendants, at taxpayer expense, or the idea of throwing out confessions given by arrestees who hadn't been told they had the right to remain silent? If you were looking for a quicker way to commit political suicide, coming out in favor of pedophilia or Maoist revolution in the United States might have been more expeditious, but only just barely. Nobody was going to do this except those few folks insulated from the repercussions of making an unpopular but morally and Constitutionally necessary decision. And sometimes not even they would so dare--as the Court's failure in the Korematsu case reminded interned Americans of Japanese descent during World War Two. So, if a judiciary is going to be given such powers for purposes of protecting those who will otherwise be deprived of the life, liberty and happiness to which they are entitled, then I say, fine, let's give them those powers. If not, however, it is a more than reasonable question to ask why they should possess that degree of authority. And, 'just because they traditionally always have' is really not a very decent answer. Apart from a few small matters like the tremendous inertia of tradition, the massive difficulty in making changes to the Constitution, and the complete indifference of most Americans to the issue, I would nevertheless argue that the philosophical burden for vesting these powers in the judiciary rests with those who would advocate for doing so, for the simple reason that such a choice is so profoundly anti-democratic--even when the Court is using such powers for the 'right' purposes. This concept is not lost on other democracies, by the way, where the American model is generally not employed. In Britain for example, Parliament is supreme. Period, full stop. No court or executive or monarch or any other actor can block the expression of the people's will through their democratically chosen representatives sitting at Westminster. The only institution that can tell today's parliament to stuff it is tomorrow's parliament. That's it. Meaning that the people, through their elected representatives, can legislate any policy they want. If you believe in democracy, that is arguably not only precisely how it should be, but perhaps the only way it can be. So where does that leave us today? Well, Earl Warren is both literally and metaphorically long in his grave. With the occasional unexpected (by definition) exception, it has been a long time since the Supreme Court has acted as an agent of tolerance, principle and protection in America. And, as an echo of the previous epoch's politics, the tendency will be to continue in that direction as the Robert's Court and the rest of the federal judiciary reflect the regressive politics of the last decades, no matter that those ideas are well repudiated now. To my mind, that is every reason to remove the power of judicial review from the courts. Maybe civics teachers across the land will feel compelled (perhaps, literally, by the same |
