By Stephen J. Fortunato Jr., In These Times
The Roberts Court unravels a generation of progress.
While in law school in Washington, D.C., in the late ’60s, I heard Justice William O. Douglas explain at a public forum that his support for the Warren Court’s “criminal law revolution” was undergirded by his fear that the nation’s police stations were staffed in no small part by “crypto-fascists.”
Though his pithy phrase never found its way into any of the Warren era’s cases – many of which solidified the Constitution’s protection for those accused of crime – Justice Douglas shared with his colleagues a passion for the Founding Fathers’ luminous idea that the Bill of Rights was created to restrain, and sometimes thwart, the actions of government officials.
Along with Chief Justice Earl Warren and Associate Justices Hugo Black, William Brennan and Thurgood Marshall – as well as his more cautious brethren, Justices John Marshall Harlan and Felix Frankfurter – Douglas and his colleagues viscerally understood Chief Justice John Marshall’s famous 1819 declaration that “it is a Constitution we are expounding.” They protected and expanded free speech rights for antiwar and civil rights activists, and drew within the Constitution’s protections many groups previously excluded: racial minorities, women, prisoners, probationers and school children.
The Bush-Roberts Court rejects this commitment to liberty and equality. Under Chief Justice John Roberts and his major domo Antonin Scalia, “the spirit of the laws” (to borrow the 18th century French philosopher Montesquieu’s apt phrase) exalts order over liberty, and institutional prerogatives – governmental or private – over the individual.
(Original Article)