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Jewish World Review Dec. 19, 2000 / 22 Kislev, 5761

Paul Greenberg

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Consumer Reports

Back to the furious fifties


Sea change at a car wash -- DID YOU NOTICE? Just a few days ago, before this new Era of Good Feelings was suddenly upon us, the country's political vocabulary seemed antique -- a throwback to the Furious Fifties, when to defend the Supreme Court of the United States in certain precincts was to take your life in your hands.

Of course these times are different. (There were actually issues, great issues, in the Eisenhower Era.) But suddenly the language of American politics, and law, had slipped back half a century. State sovereignty! Voting rights! Once again people were arguing over the supremacy/irrelevance of the Constitution. Whatever Bush vs. Gore will turn out to mean in terms of constitutional law, it marks the end of the liberals' affair with the Supreme Court.

It may have been the fastest sea change on record as liberals and conservatives switched doctrines, swung their partners and did an ideological do-si-do.

It was happening wherever the elite meet to vent, usually on talk shows.

Literally overnight, the old established view of the Supreme Court of the United States as this country's not just legal arbiter but moral guide was abandoned in those rarefied quarters.

Instead, the court was the object of, dare one say it, criticism. For the first time in decades, the knowledge dawned that constitutional decisions are not brought by storks. The secret was out.

There was even a hint of ... suspicion, contempt, defiance! Goodness. What's the world, or at least a worldview, coming to? Now that Hugo Black and William O. Douglas have been succeeded by Antonin Scalia and Clarence Thomas as the innovative thinkers on the court, the reaction was inevitable. And swift. It was like watching a sea change at a car wash.

Card-carrying liberals -- excuse me, progressives -- were starting to sound like Jim Eastland and Huhmon Talmadge when Brown vs. Board of Education came down. And like those old segs, the libs will need some time to get over it.

Or maybe, since the criticism of this court was often professorial in tone, delivered more in sadness than anger, it might be more accurate to say Bush vs. Gore had inspired criticism more akin to the spirit in which J. William Fulbright signed the Southern Manifesto.

Say what you want about the late great senator from Arkansas, when he did or said a base thing, he didn't shout about it. There was a sedate quality to anything he did or said that really smacked of evil.

So, too, with some of the bitter comments from our chattering and now seething class. They sound almost scholarly, detached, removed. At least outwardly.

It's as if these not very gruntled legal scholars were criticizing the court for its own good, or to instruct a notoriously stubborn History, which has a way of writing itself. Surely they weren't sore just because they'd lost an election.

It's the principle of the thing, they explained. Why, if all those votes out there waiting to be counted, cast or imagined had been for George W. Bush, you know they would have fought just as hard. (The way they did to get all those military ballots tallied.)

It's all enough to make Richard Nixon's pique in 1960, and his smoldering resentment of the Kennedys ever afterward, seem open and honest.

Talk about a sea change: Those are pearls (of rhetoric) that once were our intellectuals' principles about The Rule of Law.

Instead, we heard a lot about The Will of the People, which in a different decade and under a different Supreme Court was called Massive Resistance.

Some of us still remember the overwhelming vote by which all those damfool interposition amendments were passed all across the old Confederacy.

Who would have thought that such a Lost Cause would make so dramatic a comeback? And in the most unlikely political quarters.

Despite the accent, Ruth Bader Ginsburg could have won anybody's Jefferson Davis Oratory Award for her arguments in favor of the supremacy of state courts. During the Supreme Court's oral arguments, she wore a black robe; I only imagined it was Confederate gray.

What we're seeing, and hearing, and certainly smelling is the liberal rhetorician's high-tone equivalent of those old Impeach Earl Warren signs. And this, too, will rust away.

These slogans are being mouthed not by kluxers at angry rallies but professors on prestigious campuses. But listen closely and you can hear the echoes of an all-too-familiar political style whose time had come, and happily gone, by the Eisenhower administration -- specifically, 1957. The essence of all that old court-baiting rhetoric has not faded, but only undergone "a sea-change/ Into something rich and strange.'' Full fathom five all that bitterness lies, waiting to be dredged up from the bottom at every constitutional crisis, or even hope of one.

There's nothing like a new Tempest to stir old themes to sluggish life. Bitterness calls to bitterness across the eras. Ours is so remarkably continuous a national history, even our lost causes have a continuity to them. They use the same battle cries.

Anticipating Bush vs. Gore, Professor Larry Kramer of New York University's law school warned, in the New York Times of course, that "the court's credibility will surely suffer. And if that diminishes a confidence that has begun to veer toward arrogance, this may not be such a bad thing.''

Harvard Law School's (of course) Alan Dershowitz was full of impotent fury even for a cast member of the Geraldo show, vowing he would never cease denouncing this Supreme Court, or at least five to seven members of it. Somehow the court and country will survive.

It would be unfair to compare Alan Dershowitz's style to Orval Faubus'. For there is nothing subtle about the professor's rage. His approach is closer to Lester Maddox's. All the professor needed to complete his ensemble the other evening was an ax handle.

The ideological lineage of the great American tradition of court-bashing can be embarrassing. The same phrases keep popping up among the most disparate types. Same strokes for different folks.

But there's one phrase in particular we didn't hear much in all the bien-pensant commentary on the court's wayward ways.

And I was always rather fond of it, too:

The law of the land.

Paul Greenberg Archives


©2000, Los Angeles Times Syndicate