Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (32 page)

Portrait of a Justice

Earl Warren (1891-1974) is second in significance only to John Marshall in the
annals of chief justices. Like Marshall, Warren paid notably little attention to
the people's understanding in adopting particular legal provisions, but preferred
instead to write his own political and social views into "constitutional law." Across a broad range of
legal subjects-from racial segregation to state legislatures' apportionment, from criminal procedure
to speech and press regulation, from criminal penalties to church-state relations, from obscenity to
federalism-Warren left the law markedly different than he had found it. America still suffers as a
result.

In addition, the Court has delivered itself of a string of decisions about
pornography, which today-thanks to the invention of photography,
movies, videos and DVDs, and the Internet-is of a completely different
nature from anything known in 1791 or 1868. Yet rather than leaving the
regulation of pornography to the states and local governments, which can
respond to these changes as the people see fit, the Court has decided that
it is the sole judge of the legality-and even the morality-of prurient
material.

The starting point in this line of cases was justice Brennan's decision
in Roth v. United States (1957). The test for obscenity (sexual material the
Court would allow Congress and the states to regulate) was "whether to
the average person, applying contemporary community standards, the
dominant theme of the material taken as a whole appeals to prurient
interest." Here, in one of Brennan's earliest opinions, we find a characteristic sleight of hand: his words cannot mean what they say. After all,
if the issue was community standards, why should state and local statutes
governing obscenity be reviewed by the Committee of Nine Lawyers in
Washington, D.C.?

In Stanley v. Georgia (1969), a Court majority overturned a conviction
for possession of obscene materials on the grounds that "if the First
Amendment means anything, it means that a State has no business telling
a man, sitting alone in his own house, what books he may read or what
films he may watch."

The Court held that "mere private possession of obscene material"
could not be criminalized. The Court did not say, however, which clause
of the Constitution protected "private possession of obscene material."
Surely it was not freedom of speech or freedom of the press or the Due
Process Clause of the Fourteenth Amendment. So what was it? There was
nothing in the opinion that one might call "legal reasoning," only a
naked-if you'll pardon the word-assertion of judicial power.

Soon enough, in Miller v. California (1973), Chief Justice Warren
Burger announced new guidelines for permissible regulation of such
material. "Obscene material," Burger wrote for the majority, "is unprotected by the First Amendment," and in order to classify particular films
as "obscene," the justices instituted regular Court viewings of pornographic material. Works that could be regulated, they said, must "depict
or describe sexual conduct," which must be "specifically defined by the
applicable state law." Proscription must "be limited to works which,
taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do
not have serious literary, artistic, political, or scientific value."

Here, as in concocting his three-part Lemon test for violation of the
Establishment Clause, Burger undertook to spare the mere mortals in the
legislatures the task of defining these offenses. And who would apply this
definition? Why, the Nine Great Personages in Washington, D.C., of
course! A law degree and a judicial appointment make one a great expert
in "serious literary, artistic, political, or scientific value," so why should
we have elections anyway?

In City of Erie v. Pap's A.M. (2000), which involved a city ordinance
aimed at establishments featuring nude dancing, the Court majority held
that "nude dancing of the type at issue here ... falls ... within the outer
ambit of the First Amendment's protection." In other words, the Court
said that the First Amendment Speech Clause, through the Fourteenth
Amendment's Due Process Clause, extended protection (though not
absolute protection) against state regulation to nude dancers and their
employers.

The Supreme Court has also decided, in a string of cases, that the public
has a First Amendment right to attend criminal trials. Somehow, in other
words, the Press Clause extends not only to the right to publish, but to a fancied right to attend. Thus, in Globe Newspaper Company v. Superior Court for the County of Norfolk (1982), Justice
Brennan-(n)ever on the lookout for the
interests of crime victims-somehow
managed to concede that a state might
have an interest in excluding the press
and general public from a trial when a
minor was testifying as the victim of a sex
crime. Yet, nevertheless, he claimed that
the First Amendment overruled such an
interest. But, you say, the First Amendment restricts only Congress. Ah,
yes, but of course the First Amendment is now incorporated into the
Fourteenth Amendment's Due Process Clause, so the Massachusetts
statute protecting minors who are testifying in sex crime cases is void.
Uh-huh.

The federal courts have been equally assertive in legislating criminal law.
The most notorious and influential case was Miranda v. Arizona (1966),
in which a five-justice majority established the rule that a suspect may
not be questioned without first being informed of his rights. Chief Justice
Earl Warren noted that a suspect in custody might be expected to feel
compelled to answer, and implicitly claimed that this was to be avoided.
Why it would be a bad thing for a suspect to offer up a voluntary confession was unclear then, and it remains unclear now-although, like most
such precedents, it has proven impossible to undo.

Chief Justice William Rehnquist railed against Miranda for his first
three decades on the Court, then joined in upholding it at the very end of
his career. As conservative legal commentator Robert Bork once put it,
long-standing acceptance of a precedent can lead to the rise of so many
expectations on its basis as to rule out its rejection. Lost both to the lib erals who supported Miranda in the first place and to the conservatives
who uphold it now is that it marked yet another instance in which the
federal government, through the courts, unconstitutionally arrogated
power reserved to the states.

A Book You're Not
Supposed to Read

Disaster by Decree: The Supreme Court Decisions on Race and the Schools by Lino
Graglia; Ithaca, NY: Cornell University Press,
1976.

In Gideon v. Wainwright (1963) and Douglas v. California (1963), the
Court imposed upon the states a new requirement that all indigent criminal defendants be given trial and appellate counsel at the public's
expense. Supposedly, this requirement flowed from the Due Process
Clause-which, apparently, no one had understood correctly in its first
ninety-five years.

In Mapp v. Ohio (1961), Justice Tom C. Clark (Ramsey's father and a
graduate of my law school) held that state courts, like federal courts, must
exclude the fruit of illegal searches. Thus, the public was to pay the price
for police errors and/or misbehavior, and criminals were to benefit. Clark
sanctimoniously noted, "If the Government becomes a lawbreaker, it
breeds contempt for law" without asking what the government became if
it let criminals off on technicalities. He also declined to consider what
the federal judiciary became if it cloaked its own procedural preferences
in the garb of "constitutional requirements."

The Supreme Court of the 1950s and 1960s often gave the impression that
it had found a new Constitution only marginally related to the old one.
The Warren Court of 1954-1969 was the great age of judicial legislation,
when American constitutional law was remade in the image of the liberal intellectual. The federal courts have been in the business for many
decades now of remaking the American law of criminal punishment. On
what basis?

In 1992, Justice Sandra Day O'Connor, a Republican appointee who
had absorbed the Warren Court legacy, wrote in Hudson v. McMillian that the Court needed to apply not the law, but the "evolving standards of
decency that mark the progress of a maturing society." In other words, if
the Court's majority opinion differed from the opinion of the elected
rubes in state governments, then the Court's "standards of decency" had
simply "evolved" beyond theirs. The Court's "advanced" standards
needed to be applied, which in the area of criminal law usually meant
forcing the states to treat criminals more leniently.

This language of "standards of decency" reverberates most often in the
Court's decisions involving the Eighth Amendment's Cruel and Unusual
Punishment Clause, especially when the cases touch on capital punishment. (It has also been applied to prison smoking regulations and rules
depriving prisoners of television or pornographic magazines.)

Legal Latinisms

Stare decisis: The policy of courts to
stand by precedent and not to disturb a
settled point.

Probably the most outrageous trend in the capital punishment area was
the determination by Justices William Brennan, Thurgood Marshall, and
Harry Blackmun in their last decades on the Court that capital punishment always violated the Eighth Amendment ban on cruel and unusual
punishments. These three based this determination on the idea of evolving standards
of decency-and, predictably, they did not
think that Americans at large were nearly so
advanced down the evolutionary trail as
they were. Critics pointed out that the Fifth
and Fourteenth Amendment bans on depriving anyone of "life, liberty, or property
without due process of law" clearly contemplated capital punishment with due process
of law, but Brennan, in particular, insisted that he saw a better way. No
one has ever illustrated the drawbacks of lifetime tenure as well as Brennan, whose entire career represented a constant affront to the average
American citizen and his elected representatives.

For a brief period in the 1970s, Brennan and company succeeded in
banning capital punishment altogether.

The main reason the Court has been able to assert its moral superiority
over us lesser mortals is its decision in Brown v. Board of Education
(1954). It is a historical fact that the Fourteenth Amendment's Equal Protection Clause was not intended to end segregation in public schools. But
because the Court ruled that it did, and because the end of segregation is
seen as a good thing, the Court covered itself in glory for legislating from
the bench.

Intellectuals at large loved the decision. They also knew that such a
momentous constitutional amendment, which is what the ruling really
was, could never have been won through the constitutional amendment
process. How far superior to mere politics, then, was government by judiciary!