It seems more likely that several of our current justices and judges would become part of the problem, going out of their way to give an imprimatur to the evil at hand, as former chief justice Burger did in the homosexuality case and as numerous judges did during the McCarthy period. Nor is this an issue that falls neatly on any right-left continuum. In today's world, left-wing zealots on the bench — of which there are, thankfully, very few — also pose a danger of using the imprimatur of the law to exorcise their devils. For example, some feminist extremists regard sexual crimes-rape, pornography, and child molestation-as so heinous that even innocence should not be regarded as a valid defense!33 But the dominant contemporary danger still does come from the extreme right for two reasons: There are far more right-wing ideologues on the bench today than left-wing ideologues; and extreme right-wingers are more likely to be statists, especially during times of political right-wing domination. Former justice Robert Jackson, who took a leave from the Supreme Court to serve as our nation's chief prosecutor at the Nuremberg trials of Nazi war criminals, wrote of the role of judges and law in legitimating tyranny, "[t]he most odious of all oppressions are those which mask as justice."34 Jackson was echoing the caution of Lord Coke, expressed even before the Salem witch trials: "It is the worst oppression that is done by colour of justice." And Justice Brandeis warned us, three-quarters of a century ago, that even good intentions are no protection against zealotry: "Men [and women] born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men [and women] of zeal, well meaning but without understanding."35 We should keep the words of these great judges in mind as we recall the judges of Salem and as we assess our own Supreme Court. Most importantly, we should recall the cautionary words of Learned Hand about the limited role that judges can play in preserving our liberties: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there it needs no constitution, no law, no court to save it."36
This history should warn us never to abdicate to any branch of government-indeed to government at all-the job of keeping liberty alive. That is a full-time job for all citizens, especially those of us who carry the proud title of lawyer.
Excerpted from America on Trial by Alan M. Dershowitz, Copyright 2004.