Edwin M. Yoder Jr.

Bush’s nonsensical Supreme Court litmus test

As he prepares to replace Justice Rehnquist, Bush says he won't appoint judges who "legislate from the bench." But that standard would have precluded some of the high court's greatest rulings.

If, as now looks likely, Chief Justice William Rehnquist‘s illness pushes him into retirement, we who like our judicial debates sober and factual must brace ourselves for a perfect storm of twaddle. George W. Bush, who is given to unrealistic expectations, entertains the view that decent judges must never consult their personal preferences and must never “legislate” from the bench. He has proclaimed that he will appoint no such judges.

If Bush succeeds in imposing this antiseptic judicial standard in nominating new Supreme Court justices, he will have pulled off a trick that no predecessor of any political coloration has managed. All judges “legislate” in that their duty requires them to construe ambiguous constitutional phrases and statutes (often deliberately ill-drafted) that are far from self-interpreting. Some do the job more artfully than others, of course.

What Bush calls judicial legislation is more usually known as interpretation. But for purposes of argument, let’s go with the subliterate term. Consider two notable examples of judicial legislation in the recent era: Brown vs. Board of Education (1954) and Roe vs. Wade (1973). That the latter decision is frequently damned today, whereas the Brown decision is all but hallowed, reinforces the point. Political correctness is far more powerful than principle in the evaluation of judicial techniques.

Even after the Brown cases were rebriefed and reargued in the Supreme Court’s 1953 term, not a single justice could honestly say whether or not the 14th Amendment forbade segregation. The main problem was that the same Congress that had submitted the amendment for ratification had, at the same time, countenanced segregation in the District of Columbia. It was this difficulty, among others, as well as the continuing national embarrassment of two-class citizenship, that prompted the most wholesome Supreme Court decision of the 20th century. But the Brown decision rested not upon clear law or constitutional edict but upon sociological and psychological speculation about the dire effects of discrimination on small children — as in fact Chief Justice Earl Warren candidly said and Southern die-hards complained about at the time. They were right. So was the decision.

Roe vs. Wade, for its part, was judicial legislation of an even more flagrant sort. It rested on a train of inferences and implications from the Bill of Rights that the Supreme Court had discovered a decade earlier when it threw out a Connecticut anti-contraception law that Judge Robert Bork famously, and correctly, called “nutty.” But on what basis did the court “find” a hitherto unnoticed right of sexual privacy in the Constitution? Read the wildly various opinions in the Connecticut case and take your pick. In the process of determining the reach of lawful control of abortion, moreover, the court undertook to parse the process of human parturition — and divided pregnancy, as Caesar did Gaul, into three parts. (The court called them trimesters.) That was legislation pure and simple. Whether you believe that the right to abortion is a preferable evil to back-alley and insanitary abortion, or that the procedure constitutes infanticide, Roe was classic judicial legislation.

It is a now largely discredited philosophical superstition that bars the admission that most if not all big judicial turning points are marked by legislative touches. Alexis de Tocqueville saw the inevitability of this almost two centuries ago. Dred Scott vs. Sanford (1857) is often cited as a worst case; but it is a monument of judicial art by comparison with Chief Justice Melville Fuller’s crude dissenting opinion in the 1890 Mormon polygamy case (Mormon Church vs. United States). His single and entirely legislative argument was this: If you permit males of a polygamous sect to marry more than one wife, before you know it some other sect will be clamoring for human sacrifice! Most ethicists would have less trouble than Fuller in distinguishing. But at least that jurist introduced the jolly Supreme Court custom of pre-conference handshakes all around.

Even in the early 20th century, even in circles that passed for learned, people thought — or at least contended — that black robes in themselves conferred talismanic powers to “find” the law, independently of personal prejudice or predisposition, as if the law hid itself from profane eyes, like babies, in hollow stumps or bulrushes. This superstition was assailed and overthrown by the so-called legal realists of the 1920s and 1930s, though in the usual manner of intellectual revolutionaries the realists rather overdid it, stripping away not only much legalistic flummery but the veils of decency and plausibility that distinguish artful judging from the grossest free-lancing.

Every right-thinking student of judicial history knows that the Dred Scott decision (which denied federal citizenship to black people) was a horrible example of judicial legislation. But those who say so rarely cite its good parent, Marbury vs. Madison (1803), in which Chief Justice John Marshall declared that “it is emphatically the province and duty of the judicial department to say what the law is.” Where did he get that idea? Certainly not from Article III of the Constitution, which contains no judicial supremacy clause. In this aboriginal assertion of judicial supremacy, Marshall’s court found unconstitutional an obscure provision of the first Judiciary Act. But how could Marshall, who was not at the Constitutional Convention, have known more about the meaning of Article III than the authors of the Judiciary Act, who had been? Which is to say that “legislating from the bench” has a long and distinguished lineage, though again many of us prefer the less contentious term “interpreting.”

Certainly no sane observer of the judicial scene would wish to retract the power Marshall claimed to referee our jostles and quarrels. Just think, for instance, what so drastic a step would cost in unemployment compensation for professors of constitutional law! But at least we needn’t clutter and confuse the coming debate over the qualifications of nominees to the federal bench — and its highest reaches — with sloganeering of a nearly infantile simple-mindedness.

Isn’t it enough that many of Bush’s evangelical followers yearn to roll back modern biological science in the public schools and, for all I know, resurrect the flat-earth theory? Shouldn’t this be enough diversion for them while adults address the future of the American judiciary?

False prophets

The Founders would be appalled at the Bush administration's shameless religious exhibitionism.

The witch doctors are shaking their rattles and howling their incantations at the Democrats. It’s an affliction borne by any losing party in any post-election season. But their counsel this time is of a special oddity. They’re telling this year’s losers that they must get right with God.

The question, as usual, is, which God — or whose? My own religious heritage is Southern, Protestant and biblical, so that by all rights I ought to qualify as an expert on the “evangelicals” who are said to have rallied in the millions to quell the menace of gay wedlock and to reelect God’s anointed man, George W. Bush, and who are even boasting about it. I hasten to add, however, that in my case the overlap ends abruptly with the three qualifications cited above. I am of that allegedly milquetoast tribe of people who still worship from the Book of Common Prayer, where qualifying phrases such as “those who profess and call themselves Christians” (not, mind you, “who are…”) and “we have erred and strayed from thy ways like lost sheep” abound. Such locutions do not encourage sinners to imagine themselves spiritually superior to others.

I have no idea what Bush’s deepest religious convictions are. But to judge by his policies they’re far more literalist than Anglican — and far removed from the tolerant spirituality of his family heritage. His policies on stem-cell research, pushed to their logical conclusion, would make unlawful heresy of (male) adolescent masturbation; and his demagogy on the gay-marriage issue points unmistakably to a world in which the tribal dietary and sexual fetishes of the Old Testament are taken as literally as last week’s newspaper headlines. In the light of his recent triumph, I expect to read that the Democrats have missed the bus and must ape the sentiments and superstitions that constitute Bush’s base in the Southern and Midwestern heartland.

Somewhere along the way Bush swapped his hereditary spirituality for the stronger medicine of the Western plains — a personal evolution that echoes an earthquake in American spirituality. I refer, of course, to the early 19th century transformation called by historians the Second Great Awakening. It must have had its appeal as spiritual armament in a howling wilderness where parsons in gaiters seldom penetrated. But it signaled the abandonment of a style of spirituality peculiar to the genius of the American founding generation: an 18th century view called deism.

The deists, influenced as they were by the French Enlightenment, pictured a God majestically indifferent to the pettier vanities and ambitions of humankind. We lived, they said, in a Newtonian universe whose creator had wound it up and set it ticking on its own like a great clock, then stood back. How important was deism at America’s founding? Very. Whatever claims are now made about American religious origins and doctrines, it can’t be denied that deism was the overriding persuasion of our great founding generation — Washington, Adams, Jefferson, Madison, Franklin and many others. Nor that under the benign influence of this outlook they designed a constitutional system in which church and state were to be eternally separated.

They foresaw that a nation of radically different religious outlooks (where heresy hunters were already zealously at work) would need vigorous safeguards against fraternal jihads and crusades. They witnessed the ruinous force of internecine religious conflict all about them and sought to protect against it. “Congress shall make no law respecting an establishment of religion…” — the Establishment Clause of the First Amendment — was the result.

Today, alas, those words and their meaning have grown foggy in the minds of many. I was startled, some years ago, to discover that even the great Sen. Daniel Patrick Moynihan had remembered them incorrectly. He thought the clause read: “Congress shall make no law respecting the establishment of a religion” — a consequential mix-up of definite and indefinite articles. There are even Supreme Court justices who think, or pretend to think, that what the Establishment Clause does, and all it does, is forbid an established church — a view that scants the clause’s scope no less than its original intent. It was apparently the hope of Madison and other draftsmen to forbid any federal meddling whatsoever with religion, even in those states that still maintained church establishments. But as Madison’s auxiliary writings make abundantly clear, the phrase “an establishment of religion” also embraced any and all programs of subvention to religion.

At this late date, 213 years after the First Amendment became basic law, this should be American History 101 and duly respected as such. In fact, however, the sentiments that animated Washington, Jefferson and Madison have diminishing resonance in America. History has been supplanted by an imaginary past — and no less by a bloodthirsty imaginary future. Millions profess to expect the lurid scenarios forecast by biblical prophecy and colorfully reimagined at a sub-Stephen King level in the “Left Behind” novels. In this heavy-breathing world what force do antique constitutional words retain?

Amnesia about such basics is perhaps to be expected in a hectic post-election season, but the remedies now being hawked in Democratic circles are dubious indeed. The most basic problem is not only the extreme variety of American religious persuasions but also the impossibility of faking religious convictions even in the tinsel world of electronic illusions. What we need is not more of the same but a long-term investment by the Democrats in the underlying good sense of the American people.

When I see pious evangelicals in their cavernous conventicles waving their arms in the air like football referees signaling a touchdown, or Major League Baseball pitchers pointing heavenward in prayerful thanksgiving for a low ERA, I wonder what ever happened to American spiritual modesty. I wonder what became of those Baptists of every stripe who abounded in my small Southern town, and of their conviction that religion was a private conversation with the deity, not something to be worn on the sleeve or boasted of to others, let alone used as a guide to voting.

Perhaps those good people still recalled that even in colonial Virginia (to say nothing of Massachusetts) their ancestors had been enchained and jailed for heresy by civil authorities. I know they were wary of contemporary religious demagogues like Father Charles Coughlin of the Shrine of the Little Flower (known as the “radio priest” in the 1930s), whose anti-FDR tirades were regarded as shocking, even un-American, intrusions of theology into politics. It is reliably said that George Washington spent more Sundays fox hunting than church-going, but what chief executive would dare be accused of such relaxation today? That was then, and this is now.

So, Mr. Jefferson, where are you when the Democrats need you? Any abatement of the gathering wars of sanctimony would demand, to begin with, some passing reference to the book of Job, where we are sternly warned against presuming to know the unsearchable ways of the Almighty. It follows that we should hear less from canting political preachers (including Roman Catholic bishops and elected officials).

I see no prospect just now of an outbreak of spiritual humility in the Bush White House. But should the Democrats imitate its tawdry piosity? Perhaps it is not too late for Democrats to chose the better alternative and remind themselves of older and deeper — and assuredly more genuine and modest — American religious traditions.

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Not just a socialite, but a gritty survivor

Susan Mary Alsop, who died last month, faced a personal crisis when the KGB tried to smear her influential columnist husband, Joseph. A friend recalls her courage in the face of that ordeal.

The scene at Christ Church in Georgetown, in Washington, for Susan Mary Alsop’s memorial service last week reminded me more than a little of that last party in Proust where everyone is the same but much, much older. And allowances made for era and nationality, it was the equal in elegance. But no one who encountered her, however casually, would reduce Alsop in death to the dismissive word “socialite,” as did the headline on her obituary last month in the Washington Post.

True, she was descended from distinguished early-American families — she was originally a Jay of the John Jay line; and her social contacts on two continents were unmatched for variety and intimacy. In youth she had been courted by English and French nobility and introduced to Edith Wharton, the chronicler in fiction of old New York. But so were many who lacked her gaiety, urbanity, intelligence — and accomplishments. In later life, she had carved out a niche for herself as a writer on architecture and diplomacy.

I came to know her because 10 years ago I wrote a small book, “Joe Alsop’s Cold War,” about her former husband, the Washington columnist and gourmet. It fell to my unintended lot to discover and reveal for the first time in print a haunting episode in Joe Alsop’s life (and in hers too, after she became his wife).

In 1957, during his first and only visit to the Soviet Union, Joe was entrapped by the KGB in a Moscow hotel room in a compromising situation with another man. Photographs were made, apparently meant to be used in retaliation for Joe’s fiercely anti-Soviet polemics. They never were, but thereby hangs a tale.

I knew nothing of this episode when I began planning my book. And though I had been in Joe’s company a good bit during my years in Washington — he was a fabled host — and had combed his colorful archive at the Library of Congress, I had heard nothing of the matter. Then one of his friends I was interviewing suddenly asked, “How are you going to handle the Moscow episode?” What Moscow episode? I asked. The story followed.

Dealing with the sexual secrets of a man whose writing I had admired for decades — it was one of the ornaments of my craft — wasn’t something I had been bred or trained to do. But I soon learned that “everyone” in his circle of dedicated friends (and enemies too — few were neutral about Joe) knew the story and expected it to be dealt with in any useful account of his life. How to handle it? In particular, how to address delicate questions to his former wife (and continuing friend and hostess), Susan Mary, the woman he had married when her first husband, his close friend, died and left her with small children and limited resources?

Fortunately, my wife is a skilled psychotherapist accustomed to dealing, confidentially, with hidden intimacies. In contrast, I grew up in a world of genteel reticence in which sexual gossip about one’s friends was forbidden and in which scandals lay discreetly behind a veil of secrecy.

Accordingly, in preparation for asking the awkward questions I knew I must ask, I sought my wife’s coaching. She told me what questions to ask and how to ask them. I listed them on a yellow pad and kept my appointment with Mrs. Alsop. We seated ourselves in her beautiful drawing room in Georgetown, with the Gilbert Stuart portrait of “silly old John Jacob Astor” at one end (she never explained what was silly about him) and, at the other, the portrait that her ancestor John Jay had commissioned of Baron von Steuben. Timidly, my eyes glued in mortification to my yellow pad, I swallowed hard and played my gambit: “What, er, about sexuality?”

I needn’t have fretted. With disarming aplomb, candor and sympathy she told me the full story. She and Joe had been best friends for years — their vivid correspondence is one of the many gems of the Alsop papers — when Joe called on her one day in Paris after her husband, Bill Patton, died. He asked her to marry him.

“I was stunned,” she said, “by Joe’s proposal, but even more stunned when he said, ‘Susan Mary, there is something you should know before you answer.’” That something was that he was gay — of course she didn’t use that silly but now inevitable word. “But I want to take care of you and the children,” he said. She accepted and moved to Washington, where she and Joe were at the epicenter of President Kennedy’s social circle during those legendary 1,000 days.

That was far from the end of the story. Some years after Joe and Susan Mary married, the KGB intensified its smear campaign, apparently thinking Joe, the cold warrior par excellence, could be bullied into silence. Someone wrote “Joe Alsop is queer” on the dusty windshield of a car parked outside their house. She consulted Joe’s relatives for advice. No one would help. “Alsops aren’t homosexual,” she was told. Then the KGB played what it apparently deemed its trump card. The compromising Moscow photographs were anonymously mailed to a number of Joe’s colleagues, including columnist Charles Bartlett; the late Philip Geyelin, then editorial page editor of the Washington Post; and improbably, one of the great gentlemen of American journalism, humorist Art Buchwald.

The inclusion of Buchwald showed how dense the KGB gumshoes were. Buchwald had caricatured Joe, who could be pompous, in a Broadway comedy of his called “Sheep on the Runway,” and Joe had proclaimed that he would not enter a house where Buchwald was received. The Russkies must have thought Buchwald would be eager to get back at Joe, but then no one ever accused them of grasping the nuances of American political and social life. It was a grotesque miscalculation and the beginning of the end of a nasty campaign.

The harassment did not stop until the Russians were put on notice through back channels that the CIA had dirt with which to retaliate. What I recall from that afternoon in Georgetown as Susan Mary Alsop told the story so serenely was the courage — and humanity — with which she had faced an unexpected and harrowing ordeal.

And who were Joseph Wright and Susan Mary Jay Patton Alsop? Both were high-born, as American lineages go. Joe was the grand-nephew of President Theodore Roosevelt, hence a cousin of the later White House Roosevelts, a connection he exploited to useful effect when he came to Washington in the mid-’30s as a correspondent for the New York Herald Tribune. In those younger years Joe was one of the whiz kids of American journalism and a widely read syndicated columnist in his 20s.

After World War II, when he and his brother, Stewart, returned from distinguished military service, both became powerful anti-Soviet voices but also stalwart defenders of the open society at home. They distinguished themselves as critics and hair shirts of our most dangerous and disruptive postwar demagogue, Sen. Joe McCarthy, and played a key role in his downfall. Joe defended the great physicist J. Robert Oppenheimer, “father of the atomic bomb,” against a ludicrous removal of his security clearance by the Eisenhower administration. In short, Joe was — and defined — the “Cold War liberal,” as the patronizing term now has it. He died in 1989.

Readers of the recent obituaries for Susan Mary Alsop could feast on colorful reports of a fairy-tale life among the high and mighty and elegant, some of them even true. But the woman I knew was a gritty survivor who had been rescued by Joe Alsop from a vulnerable widowhood, only to find that he too was vulnerable in unsuspected ways. She met the challenge with loyalty, resilience and humanity, and that is the way I shall remember her.

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