Book Excerpt: 'America on Trial'

Burger's successor, Chief Justice Rehnquist, has rendered similar decisions, nearly always siding with claims of governmental power over individual rights. This is especially true when rights have been claimed by weak and unpopular, even despised, minority groups. I can picture Rehnquist as a German judge during the 1930s and 1940s. (Indeed, when he was nominated to be an associate justice in 1971, I learned from several sources who had known him in the 1940s that as a Stanford Law School student, he had outraged Jewish classmates by imitating Adolf Hitler and goose-stepping around the campus with brown-shirted friends.) The German judges who were tried at Nuremberg included several distinguished jurists and professors with an authoritarian bent not so different from Rehnquist's. This is not to deny that Chief Justices Burger and Rehnquist have sometimes sided with unpopular individuals and against the prosecution, but the judges of Salem and Germany also occasionally acquitted persons accused of witchcraft or of violating the Nuremberg laws. Indeed, when challenged about their complicities in a system of injustice, many judges rationalized their participation by pointing to the ameliorative role they played in helping some victims of injustice. I have little confidence that most current Supreme Court and other federal and state court judges would act courageously and independently in the face of witchcraft trials today, especially if the atmosphere of the country were such that it would require personal and career risks to do so. Despite lifetime appointments, too many judges seek popularity and acceptance by the powers that be.

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