Book Excerpt: 'America on Trial'

Throughout history, some judges have had the courage to stand up to the abuse of the legal system. A few paid with their lives, others with their careers. In some instances, most notably McCarthyism, dissenting judges had an impact on slowing down and finally halting the evil. (During the McCarthy period, as distinguished from the others, vigorous defense attorneys also played an important role in vindicating the rights of the accused.) Even so, too few judges have risked going against powerful and popular tyrants. When I look at our current judiciary, especially the Supreme Court, I see some judges in the mold of those who went along with the excesses of tyrants. Oh, sure, today's judges would find some contemporary rationale for their unwillingness to intercede on behalf of the victims of tyranny: judicial restraint, executive and legislative prerogative, separation of powers, original intent, national security, and many other catchphrases can be selectively invoked to justify inaction. Nevertheless, the real reason why the Rehnquists, Scalias, and Thomases of today's judiciary would not intercede is that they are statists rather than true conservatives: Conservatives believe in limited governmental power over individuals; statists believe in virtually unlimited governmental power and limited individual rights (except, in some instances, when it comes to property rights or the right to bear arms).

Consider what former chief justice Warren Burger had to say in 1986 about the "crime" of private homosexual activity between consenting adults — a "crime" akin to witchcraft in many ways, including its biblical source and its lack of actual victims. In the case of Bowers v. Hardwick, Chief Justice Burger, in a concurring opinion, approvingly quoted Blackstone's characterization of "'the infamous crime against nature' as an offense of 'deeper malignity' than rape, a heinous act 'the very mention of which is a disgrace to human nature,' and 'a crime not fit to be named.'"30 The judges in Salem might also have quoted Blackstone on the evils of witchcraft (had his book, which was published a few decades later, been available to them): "The civil law punishes with death not only the sorcerers themselves, but also those who consult them; imitating in the former the express law of God, 'thou shalt not suffer a witch to live.' And our own laws [rank] this crime in the same class with heresy, and condemn both to the flames." (In June 2003, the Supreme Court reversed Bowers v. Hardwick, striking down a Texas law that prohibited private consensual sex between same-sex couples. "The petitioners are entitled to respect for their private lives," wrote Justice Anthony Kennedy for the majority. "The state cannot demean their existence or control their destiny by making their private sexual conduct a crime."31 The Court concluded that "Bowers was not correct when it was decided, and it is not correct today."32 Chief Justice Rehnquist, along with Justices Scalia and Thomas, dissented. You can read an account of the Texas sodomy case starting on page 551.)

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