The bench of American Themis
TABLE TALK DENIS BROGAN
For most Americans who are not lawyers, the Supreme Court is simply the Supreme Court, one of the two most sacred institutions of the Republic. It is not as sacred as the White House from which Lincoln and Kennedy were buried, but one of the most sacred rituals of American political life is the sight of the Supreme Court with the justices coming in in their black robes ,beneath the fresco which recalls the great law- makers like Moses, Justinian and Bonaparte, the announcement by the court officer that the court is in session and the prayer, 'God bless the United States and this honourable Court.' For although God is not mentioned in the Constitution of the United States, He is men- tioned in this ceremony.
It is very difficult to convey to non- Americans the special character of the Supreme Court of the United States. It is and has been for a long time the most important court in the world, not only because for a long time the United States has been the most powerful body politic in the world, but because the powers of the Supreme Court are unique. Other countries have supreme courts with quasi- constitutional powers. There is a Constitutional Court for West Germany, seated, I believe, in Stuttgart. There is a very ineffective Supreme Court embedded in the Gaullist con- stitution of the Fifth Republic. But none of these for a moment compares in august majesty or in effective power with the Supreme Court of the United States. Any Chief Justice is more important than any Lord Chancellor— even than, say, Lord Dilhorne—because he pre- sides over a body which can make and unmake laws.
It is with this in the background of one's mind that the unprecedented shock of the recent forced resignation of Justice Abe Fortas and the reasons for it must be assessed. There have been judges whose conduct on and off the bench was open to a great deal of criticism. There was the idle, not always sober, extremely bad-tempered and bad-mannered Justice McReynolds whom Woodrow Wilson, in an aberration which he much regretted, had put on the court. There have been justices who long survived their usefulness. Even at the very beginning of the court, one of its historically most important members was continually on the run from his creditors. For James Wilson was that not uncommon Caledonian type, the unsuccessful speculator, and although he was one of the chief drafters of the Constitution and one of the most remarkable products of the Scottish Enlightenment, his last days on the court were spent in shallows and miseries, and his death was a relief to everybody.
Some nominees to the court have been turned down by the Senate for good or bad reasons. Some nominees have been accepted finally only after long and bitter controversy, such as that. which disgraced the Senate and the American Bar Association as well as two or three very important lawyers like the future Chief Justice Taft, when Wilson nominated the first Jewish justice, Louis Denbitz Brandeis. There have been some rather odd appointments to the court. But there has been nothing before like the Fortas affair.
There is, of course, a mystery involved which no one, at any rate on this side of the Atlantic, can really explain. I have talked to a great many Americans about it in the last fortnight or so, and to some lawyers, and one of them, who knows America well, asked me a question to which I could give no answer. Why did a lawyer of such brilliance and, in many ways, of such public spirit commit the astonishing gaffe (it may have been worse than a gaffe) of associating in any way with the Mr Wolfson whose generosity produced the crisis? The crisis, of course, began last year when President Johnson nominated his crony (or 'cohort') as Chief Justice—and, under obviously well-in- formed pressure, the nomination had to be withdrawn. But a great many people rallied round in defence of the nomination because they wanted a liberal Chief Justice who was a highly competent lawyer to preserve the ad- vance made by the Warren Court. The success- ful attempt to kill the nomination of Mr Fortas as Chief Justice was bitterly resented and seen as a trick to postpone the replacement of Chief Justice Warren until there was a Republican President who could fill this great office and possibly reverse the tide of legislation which has poured out of the court since President Eisen- hower nominated the Governor of California to the court in 1953. (There is reason to believe that President Eisenhower soon repented of the nomination, but the damage was done, and for good or evil—I believe for good—Earl Warren will go down to history as one of the most important Chief Justices ever known.) But strange and, in a way, alarming as was the refusal of the nomination of Justice Fortas as Chief Justice, it is nothing to the scandal caused by the resignation because of the way it was forced on the Justice. There is a danger that the attack on Mr Fortas will be seen by some not very wise American Jews as an example of anti-semitism. The New York correspondent of the Jewish Chronicle is ob- viously baffled, alarmed and distressed by the possible implications of this great scandal.
But far more serious is, of course, the impact on the highly sceptical youth of the United States. During the great crash in 1929 and after, when a wave of hostile scepticism struck American youth and produced a great deal of academic disturbance and revolt, the New Yorker carried a cartoon showing a worried American matron saying to her highly sceptical college-age son, `You do believe in Lindbergh, don't you?' Alas, today there is no Lindbergh to provide any centre for faith in any great American figure, or perhaps in any great American institution. Mr Nixon, although he has disarmed a good many enemies, is not yet accepted as representing a cause to which the wise and the good may rally, and the new Chief Justice, who may be a man of the greatest virtue, is almost unknown to the vast mass of the American public.
This is especially tragic as one of Mr Fortas's greatest triumphs before he became a member of the court was his winning the Gideon case, that very remarkable example of the resource- fulness of the American system of control, in the French sense, of the decisions of the lower courts which Mr Anthony Lewis, of the New York Times, has written up so well in his book called Gideon's Trumpet. Another mem- ber of the court (in this case, a very old friend of mine) was under attack for much less serious reasons than those that led to the eviction of Justice Fortas. Justice Douglas (who was Brandeis's successor, as very few people seem to realise) has resigned his connection with the Parvin Foundation, which was never secret but was certainly indiscreet. This, one presumes and hopes, will save the court from another week of agony such as it underwent while the fate of Justice Fortas was still undecided. The objectivity of the court and the willing- ness of its members to stand up in defence of the poor, the unlucky and the black against popular pressures for law and order is now threatened, because Chief Justice Burger, having to make a decision between the needs of public order and the rights of priyate citi- zens guaranteed in the Bill of Rights, will give the demands of public order equal chances against the claims of the 'absolutists' on the court. Chief Justice Burger will have to steer a delicate course between fiat Justitia, ruat coelum and de minimis non curat praetor. And in what may be a long and hot summer. beginning a series of long and hot summers, it is important that the attitude of the court and of the inferior courts in state and Federal systems lay not too much stress on the triviality of what may be matters of life and death for quite humble, semi-literate and possibly not very attractive people. It is not a very hope- ful sign that the new Chief Justice is discussing the Carol Chessman case entirely in terms of how Chessman was allowed to escape execu- tion for twelve years by exhausting the possi- bilities of appeal, with no comment on the odiousness of the legislation which sent him to the electric chair.
A good deal will, of course, depend not only on the Chief Justice but on the Attorney- General. I confess I would rather see Mr Ramsey Clark still in office than the present Attorney-General. After all, Robert Kennedy started as a tough law-enforcement man and ended up, as his brother's letter to the judge in the Sirhan case has shown, as a man con- verted to humanity.
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