The U.S. Supreme Court rarely stirs the passions of ordinary Americans the way a president or Congress does. Yet the nine robed justices, each with guaranteed lifetime employment, have the power to peek into your bedroom, reach into a woman’s womb, escort God into your children’s classroom and yank a weapon from your gun case. The court has set murderers free when police failed to follow an arrest script, and gotten out of the way to allow states to execute other murderers. It allowed a city to seize and demolish homes so a private developer could build, and decided how much money you could donate to your favorite political candidate.
The court is a serious player in our daily public and private lives.
Few understand the court’s importance like Nina Totenberg, National Public Radio’s longtime legal affairs reporter, who spoke at Husson College in Bangor recently. Ms. Totenberg’s tenure covering the court exceeds that of several of its current justices, and in some ways, her perspective on its history and its role in American life may be better informed than that of those wearing the robes.
Because of the cloistered and arcane nature of their work, the Supremes may be seen as sitting on thrones, looking down with detachment on the hard legal and moral choices “real” people make. That’s not accurate, Ms. Totenberg said, recounting a story the late Justice Lewis Powell told her after the justice retired. While working as a lawyer, Mr. Powell’s messenger, a 19-year-old black man, urgently summoned him back to the office one evening. Once there, the man confessed that his pregnant girlfriend had tried to give herself an abortion. Mr. Powell and the man raced to the woman to help her, but she died. As an officer of the court, Mr. Powell reluctantly turned the man over to police as an accomplice in an illegal abortion, though he persuaded the judicial system to be lenient. That experience, Ms. Totenberg said, helped shape Justice Powell’s view that government should not be involved in reproductive matters.
Ms. Totenberg’s perspective on the court’s history has her drawing some worrisome conclusions about the predilections of its current make up. Typically, the court reverses a federal law about once every two years. Now, such reversals are commonplace, leading her to believe this court’s conservative majority is bent on activism. One-third of its votes are 5-4, the highest percentage of such splits in a decade or more. “If everything important is decided by a 5-4 vote, it is possible the court will lose its authority. That’s a danger,” Ms. Totenberg said.
Past justices have accepted where the lines are drawn in our body of law. As with a basketball court, they acknowledged the foul line is 15 feet from the hoop, even if they didn’t agree it should be there. But justices like Clarence Thomas, Antonin Scalia and Anthony Kennedy seem to want to move the lines as they see fit, a trend she finds troubling.
Ms. Totenberg talked about the late Chief Justice Earl Warren who presided over such landmark civil rights cases as Brown v. Board of Education. Under Justice Warren, the court functioned at its best, leading the nation to a position it needed to hold, even though it was not quite ready to move there. Ideologues bent on reworking our body of law to fit a narrow agenda do not fit in that noble tradition.
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