Monday, May 25, 2009
Once in Conference the vote was close on a case and [Justice Stanley F.] Reed could not make up his mind. "I am inclined to reverse Chief Justice," Reed said deferentially. [Charles Evans] Hughes replied with his customary twinkle, "Brother Reed, I will enter you in the docket as voting to reverse. For my experience is that if a Justice inclines a certain way, he has the facility and resourcefulness to marshal the reason to back his inclination."
It was shortly after that episode that Hughes made a statement to me which at the time was shattering but which over the years turned out to be true: "Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reason for supporting our predilections."
I had thought of the law in the terms of Moses-principles chiseled in granite. I knew judges had predilections. I knew that their moods as well as their minds were ingredients of their decisions. But I had never been willing to admit to myself that the "gut" reaction of a judge at the level of constitutional adjudications, dealing with the vagaries of due process, freedom of speech, and the like, was the main ingredient of his decision. The admission of it destroyed in my mind some of the reverence for the immutable principles. But they were supplied by Constitutions written by people in conventions, not by judges. Judges are, after all, not creative figures; they represent ideological schools of thought that are highly competitive. No judge at the level I speak of was neutral. The Constitution is not neutral. It was designed to take the government off the backs of people, and no wiser man than Hughes ever sat on our Court. I say that although his predilections, drawn from a different age, were not always mine.
Source: William O. Douglas. The Court Years, 1939-1975. (New York: Random House, 1980) p. 8. Charles Evans Hughes was appointed as an Associate Justice to the US Supreme Court by Republican President William Howard Taft; he served in that post from 1910 until he resigned from the Court to become the 1916 Republican Party presidential nominee. Hughes was appointed as the Court's Chief Justice by Republican President Herbert Hoover; he served in that post from 1930 until 1941. William O. Douglas was appointed as an Associate Justice to the Court by Democratic President Franklin D. Roosevelt; he served in that post from 1939 until 1975.
Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas -- that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, "Congress shall make no law ... abridging the freedom of speech." Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States.
Source: Dissent of Oliver Wendell Holmes in Abrams v. United States, 250 U.S. 616, 630-631 (1919). Part of this passage is also quoted in Louis Menand. The Metaphysical Club: The Story of Ideas in America. (New York: Farrar, Straus & Giroux, 2001) p. 430.
Note: It would be a mistake to think that Holmes was a consistent civil libertarian. He wrote the infamous majority opinions in Schenck v. United States, 249 U.S. 47 (1919) and Buck v. Bell, 274 U.S. 200 (1927).
The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, beg in the streets or steal bread.
Source: Anatole France (1844–1924), French author. The Red Lily, ch. 7 (1894)
Every time I repeat, as though by rote, my maxim, 'But justice will ultimately win', I cannot help twitching. Because I know it's a lie and I twitch when I lie.
Justice, alas, is not a benevolent God who will descend when all human efforts fail to salvage his name. The cases in history of grave injustices are well known. The Turks murdered a million and a half Armenians; have they been made to pay? The American Indians were crushed and dispossessed: do they stand a chance of justice? Of course, some may answer that this was before 1948 and the Universal Declaration of Human Rights. Right. All men are equal but only as long as those who have do not have to sacrifice anything to those who have not.
Source: Raja Shehadeh. The Sealed Room: Selections from the Diary of a Palestinian Living Under Israeli Occupation, September 1990-August 1991. (London: Quartet Books, 1992) p. 161. Shehadeh is a Palestinian lawyer and a founder of the human rights organization al-Haq. Sotomayor