FORUM

Stephen E. Gottlieb
Albany Law School

In modern America, political conservatism is usually a shorthand reference to the "Moral Majority." The present United States Supreme Court is dominated by a group of conservative justices appointed by presidents Nixon, Reagan and Bush for the precise purpose of imposing a moral agenda on American law. One would expect this conservative Supreme Court to show great moral rectitude.

Nothing of the sort. This Court’s conservative majority evinces a huge discrepancy between the morality of its claims and the reality of its judicial behavior.

Example: hypocrisy on due process. The conservative majority decided that courts don’t need to look into evidence proving a man’s innocence if discovered after trial - and after he was placed on death row. When Angel Herrera’s lawyers found strong evidence that he was innocent of murders for which he was to be executed, three justices argued in vain that lower courts should be able to look into the case if he was "probably innocent." The conservatives insisted on Herrera’s execution.

The execution of innocent men is impossible to justify. And it makes the conservatives’ support of the "pro-life" anti-abortion cause hypocritical.

Example: hypocrisy on equal protection. Insisting that the Constitution is colorblind, the Court’s conservative majority has made racial discrimination impossible to prove. The Civil Rights Act of 1991 overruled nine Rehnquist Court discrimination cases. Congress insisted that discrimination should be defined by obvious results instead of subjective intent, which consistently allowed the conservatives to deny that discrimination had occurred. In Voting Rights Act cases, the conservatives all but declared the results test unconstitutional.

In addition, they recently refused to let a judge examine discrimination charges against federal prosecutors. When a prosecutor dismissed all bilingual Hispanics from a jury because they wouldn’t need an interpreter for Spanish-speaking witnesses, the conservatives concluded he had not meant to discriminate. In a gay rights case, President Bush’s favorite justices – Scalia and Thomas – wrote that protecting people from discrimination is favoritism. So much for equal protection under the law.

Example: hypocrisy on democratic principles. Justices Rehnquist and O’Connor voted to restrict the ballot to property owners in water and school elections, thereby shutting out renters from voting to protect their children’s schools or their water tables. Justices Scalia and Thomas denied the existence of a principled way to support voting rights. The conservatives have turned their backs on the one-person-one vote standard and concluded that three to one is perfectly satisfactory. In a recent book, Scalia made his own elitism plain, writing that tyranny of the majority is more worrisome than tyranny of the elite.

Without moral bearings, the Court cannot give an appropriate reading to the majestic open-ended clauses of our Constitution. The due process clause does not condone the execution of innocent people. The equal protection clause does not specify an intent test; it requires that people be treated fairly. The republican government and voting clauses do not restrict the vote to landowners.

The great designs of the founding fathers and the members of the Reconstruction Congress are belittled by a Court that reads their language without moral bearings. We need a Court of great moral rectitude.

April 5, 2001

———————————————————————
Discussion

• I read with interest your article and am glad that you are helping to point out the "deficiencies" of the Court as it is currently staffed. I find that many months after the dead of night on December 12th that I am still angry, not "getting over it", not "dealing with it", not healing. The type of anger I feel is not just partisan but rather connected to an age old struggle, in short an archetypal reaction to an archetypal situation. I did manage to come across this quote by Bocaccio in 1362 in "De Mulieribus Claris", one of his lesser known works but I wanted to pass it along to you to let you know that you are part of a centuries old tradition in the struggle for justice:

  ''There is nothing more dangerous than a corrupt judge. Whenever he follows the dictates of his wicked mind, every due procedure of justice is necessarily perverted . . . curbs on crimes are loosened: in short, the public welfare as a whole is dragged down to ruin.''

  I wholeheartedly agree and see the Rehnquist court as squarely in the countervailing tradition of self serving corruption which does more to bring down nations than any force of arms. Thanks for your time. Keep up the struggle to let justice be served.

  Sincerely
  Geoffrey DeWan
  Los Angeles, Ca.

• Supreme Court judges come and go according to the popular will. The more enduring force is the sway that elite law schools hold over the moral tenor of the profession. Why do our leading schools so scrupulously eschewing any core morality in the selection and training of lawyers. My alma mater Northwestern and others should take less pride in their innocence projects because they are poor substitutes for the failure of the academy to develop and encourage honest lawyering. The legal academy reminds me of Huck Finn looking down upon the profession floundering in the the river. Shouldn't law schools investigate their own role in creating our legal culture?

  Fred Gamin
  Northwestern class of 1973
  North Carolina

• It was good to be able to read "The Amoral Court" by Stephen Gottlieb, even though it left me quite fearful for the future of this nation!

  So what can we do about this? The recent election proves that whomever has the most money and friends among the owners of the media wins -- regardless of votes! Is the democracy "game over"?

  Bob Fleischer
  Groton, Massachusetts

• Prof. Gottlieb begins with a bit of subtle religious bigotry. Then he petulantly states his subjective, relativistic, moral orthodoxy, and uses "Gottlieb's religion" to measure the morality of Supreme Court Justices. Whew!

  Joe Bailey Hyden
  Attorney
  Texas, USA

• Dear Professor Gottlieb,

  Thanks very much for your forthright and clear criticism of the conservative justices' hypocrisy. After the Bush v. Gore decision, my concerns have only grown. It's nice to see that these concerns are shared.

  Tim Iglesias

• Dear Professor Gottlieb:

  I liked your article. In "The Federal Lawyer" (Oct. 1997), I published a piece called "Nuremberg, U.S.A.." Relying largely on the Scalia-Thomas concurrence in Herrera, which said that it would be constitutional to execute an innocent man no matter how strong his new evidence, I suggested that, if they read the Constitution that way, then, just as the Nazis could not get away with the "following orders" defense, Scalia and Thomas were obliged not to follow the Constitution. But, I wrote, their interpretation of the Constitution was perverse, as the Constitution should be presumed moral. I wrote: "The Supreme Court has said 'that a statute is to be construed where fairly possible so as to avoid substantial constitutional questions.' Is it too much to expect that the Constitution be construed where fairly possible so as to avoid substantial moral questions?"

  Henry Cohen
  (Book review editor of The Federal Lawyer)