Funny how conservatives used to hate the idea of an activist court

Funny how conservatives used to hate the idea of an activist court

You know what they taught me in journalism school? Two score and 10 years later, it’s still true: Avoid clichés “like the plague.”

Such as, “What’s sauce for the goose is sauce for the gander.” “Things are never as good (or as bad) as they first appear.” And, “Be careful what you wish for.”

Nothing confirms that last cliché like a look at today’s U.S. Supreme Court.

A giant of a man — a Republican chief justice appointed by a Republican president — started the Supreme Court down the road of politicization.  As a teenager, when I studied about this chief justice leading the way in striking down segregation in the Jim Crow South, I was proud.

Sure, the legal reasoning in the cases that allowed Blacks to eat in restaurants and sleep in hotels was a bit tortured. The court said that if the Black people traveling through the South could not eat or sleep where everyone else could, then that would impinge on interstate commerce. The court had the power to stop that, and so it did.

Chief Justice Earl Warren was no doubt aware of accusations against his reasoning. In fact, he insisted on hiring clerks who would argue with him prior to the court’s rulings.

The debates with his clerks pitted his humanity against their training and well-honed legal arguments. He ended the debates with his often-repeated phrase that closed the discussion: “Fellas,” he’d say, “this is where I am.”

If you were a Southern kid in the 1950s and 1960s, as I was, the first time you saw the word “impeach,” it probably was followed by Warren’s name and plastered on a billboard or bumper sticker.

As the court, the Eisenhower and Kennedy administrations, and right-thinking people North and South watched the Warren court dismantle the apartheid society that was a blot on our nation, there was one man who whispered a cautious word amidst the triumph.

Felix Frankfurter was a justice on the Supreme Court from 1939 to 1962. He believed that the court must be strictly bound by the law alone, even when social engineering would be satisfying and right.  No matter how attractive it was to make sweeping changed from the bench of the high court, Frankfurter exercised what is now called “judicial restraint.” He believed that politics and the electoral process were better methods of making changes and protecting the guarantees of the Constitution.

Felix Frankfurter came down to me in history as a conservative force who wanted to thwart the efforts of Warren and others. I have spent much of my adult life disagreeing with his ideas. Now, I get it — and it’s a lesson hard won.

Twenty years ago, you heard the conservatives’ cry, “No judge-made law!” These days, the politicization of the court is on the other foot.

Don’t like Roe v. Wade? Overturn it by carefully grooming and seating judges who may say they are only interested in the law, but who are at bottom political animals.

Do you believe the right to own and carry a gun is a personal right rather than what lawyers call a “collective right”? Then put in place a court that will change the meaning of the Second Amendment (which, before District of Columbia v. Heller, was understood to guarantee that the king’s men would not have a monopoly on soldiery, so that the “well-regulated militia” would be able to bear arms, too).

One decision in 2008 — from conservatives who support “gun rights” and the rock-bottom right to be armed to the teeth in any situation — swept aside 200 years of legal precedent. Another decision earlier this year — Dobbs v. Jackson Women’s Health Organization, from conservatives who are committed to severely restricting or eliminating abortion — swept aside 50 years of legal precedent.

Am I complaining about those decisions? Sure. But I haven’t ordered up any billboards that say, “Impeach Amy Barrett” (or Brett Kavanaugh or Neil Gorsuch).

However, the turn of events in recent court decisions has certainly made me painfully aware of the wisdom of Felix Frankfurter. He saw the danger in a politicized court.

As for the clichés, they still come hot and fast: “It depends on whose ox is being gored.” That particular one is rooted in a passage of Scripture in the New Testament concerning the Mosaic law that was a huge part of Frankfurter’s Jewish culture and background. It has a lot to teach about how the law is gray, not cut-and-dried (to spin out yet another cliché).

In the Gospel of Luke — a decidedly philosophical and theological work — Jesus asks, “Which of you shall have an ox or an ass fallen into a pit, and will not straightway pull him out on the Sabbath day?” That is, even though the letter of the law says you can’t do work on the Sabbath, your sense of right and wrong demands more than that.

So what do you do, Felix? The law is clear. You can’t even make a hot pot of tea on the Sabbath. Must you leave that ox to die in the pit because the law says you must?

What if it were a child? Would you let him or her die because your notion of the law demands it?

No. You have to do what your humanity says you must do, even when it’s hard — especially when it’s hard.

And, fellas, that’s where I am.

Frances Coleman is a former editorial page editor of the Mobile Press-Register. Email her at [email protected] and “like” her on Facebook at www.facebook.com/prfrances.