As I read about the judges, I could not help wondering how our own Supreme Court and lower courts would react if a hysteria comparable to the witch trials were to occur today. I also could not help wondering whether the presence of a vigorous defense bar would not have made, and would not now make, a difference in the processes and outcomes of the cases.
There is, of course, some relevant history to look to for guidance. The Salem travesty was neither the first nor the last of its kind. The Spanish Inquisition employed the forms of the law and the legitimation of judges. Even in Hitler's Germany and Stalin's Soviet Union, "good" and "decent" judges went along to get along. During the McCarthy period in our nation, many judges willingly participated in the Red-baiting and career-destroying paranoia of the time; and during the Jim Crow era in the South, most of the judges perpetuated a system of apartheid that not only kept the races separate but also imposed a double standard of justice on blacks and whites. Although some of these ignoble judges believed in the "justice" of the cause they were serving, most were motivated by simple opportunism, careerism, and a need to please those in power. Today's "witches" may be those suspected of complicity with terrorism, especially if they are not citizens. Terrorism, unlike witchcraft, poses real dangers to vulnerable citizens, but what must be recalled is that in seventeenth-century Salem, many good people honestly believed that witches posed a real danger. Too many of today's judges are prepared to ignore — or manipulate — the law to assure that no one they release becomes the next Mohammed Atta or Osama bin Laden.
It is possible, of course, that, even without the complicity of the judiciary, people would have hanged witches, burned heretics, gassed Jews, shot "cosmopolitans," imprisoned fellow travelers, subjected blacks to apartheid, and denied due process to Muslims suspected of terrorism. Nevertheless, that the imprimatur of the judges legitimized entirely illegitimate undertakings becomes clear in reading these accounts of the witchcraft trials and seeing how the trials relied on the forms of the law. (It also becomes clear when one reads, as every judge should, the record of the Nuremberg trials of Nazi judges.)