Judge Sonia Sotomayor has now been confirmed as a Justice of the Supreme Court. I want to offer a reflection on what a Justice of the Court should do.
The conservative bete noire has been the Warren Court. They regard the Warren Court as activist, with judges who applied their own philosophies to the law. Conservatives feared Justice Sotomayor might be like the Warren Court and they regarded that as an argument against her confirmation.
It’s not hard to show that the Rehnquist and Roberts Courts are equally “guilty”, if that’s the right word, of applying their own philosophies to the law. Actually it’s almost impossible for judges to judge cases without being influenced by their own personal philosophies. We call that exercising judgment. And that’s why finding out what a judge stands for is crucial.
Which leads me back to the Warren Court. What after all was wrong with the Warren Court? No one in public life will attack that Court for declaring segregation inherently unequal. As the price of unanimity, the Court agreed behind the scenes not to rush the South to change, so one might attack the Warren Court for failing to enforce its decision in Brown. It became the Burger Court’s job to enforce Brown. But that’s not the conservative complaint.
Some people resent the Warren Court because it enforced a wall of separation between church and state, holding that our founders sought to protect religion from government. Many churches agreed. But those who sought government support for specific religious messages created the powerful, but false, slogan that the Court was against God. Those same critics attack government for getting everything else wrong, but insist that government can be good for religion. It’s a free country – they can believe that nonsense.
The big reason, though, that so many profess to loath the Warren Court is that it insisted on civilizing the way police work is done in America. No torture, no jailhouse beatings, no coercing people to make unreliable confessions, no kangaroo courts, no assuming people are guilty and leading them straight to the chair in little more than legal lynchings. The Court insisted that if we are going to take away peoples’ lives and liberty, police and prosecutors have to get real evidence and prove their case. They would have to behave according to the standards that we expect of the rest of the world and not succumb to the techniques of terror, abuse and misbehavior with impunity that we condemn around the world. Heavens, the Constitution says we are entitled to due process and the Warren Court actually demanded it.
No beatings, no suggestive line-ups or convincing witnesses to claim what they didn’t see. Honest prosecutions, with real evidence.
But it has been clear in the battles over Guantanamo, Abu Ghraib and presidential power to imprison people without the benefit of any process for as long as he wants, that a very large segment of this country doesn’t get it. Obama is treading lightly because, for that portion of the country, the risk of being called weak is much greater than the risk of being called abusive. There are many people in the prior Administration who behaved as badly as people we have prosecuted for war crimes. But the real struggle is larger than that, much larger. Too many people have yet to yet to ratify the Constitution, the one with ALL of the Amendments, including the due process clauses enshrined in two separate amendments to the Constitution.
I think we have to start taking that issue very seriously. And there’s no better place to start than by standing up for the Warren Court. It was an American court. It took our Constitution seriously. And we deserve more judges like them.
Broadcast August 11, 2009 on WAMC Northeast Report