JUDGING CRIMES

In 2003, Justice Kennedy issued an opinion thunderously denouncing the defiantly racist jury-selection policies officially adopted by the Dallas District Attorney's office of 1963.  (See post 57.)  If he had contented himself with that, we could all say: Better late than never.  But the point of his opinion was that stringent policies needed to be applied today to fix the injustices that had escaped the justices' attention a generation ago.

Shouldn't this be seen as an admission by the Court that for 40 years it failed in its duty to ensure equal justice under law in Dallas?  That idea wouldn't occur to most people in the legal world, I think, and especially not to the justices themselves.  They seem to perceive nothing peculiar about their institution's way of arriving late to the party and then announcing loudly that it's both the host and the guest of honor.

Justice Breyer recently called Brown v. Board of Education "this Court’s finest hour."  Given that he  "married into a well-established family of the British aristocracy", we can be sure that his Churchillian echo was intended.  A beleaguered democracy standing alone against Hitler, a court belatedly overturning its own evil decision of 58 years previously - well, I'll take Justice Breyer at his word, he sees a resemblance.  One of those Madonna-in-the-pancake things, I guess.

But what about those intervening 58 years?  Even if one assumes that the justices of 1896 didn't actually sell their souls to the devil - even if we assume they honestly didn't understand they were institutionalizing the racism of their class and genuinely thought they were fairly interpreting the constitutional phrase "equal protection" (big assumptions, I know, but Supreme Court justices tend to be sketchy about reality) - even on those heroic assumptions, the socially destructive effects of Court-approved racial segregation were plainly apparent long before 1954. 

Brown v. Board of Education was a remedy for the injustices of the preceding two generations.  Even apart from the most important point - that the Court itself was largely responsible for those injustices, by barring the courthouse doors against the oppressed - the slowness of the Court's response illustrates the generation-ago rule.  The Court always works in arrears.

Other examples are provided by some of the Court's most controversial decisions.  Its 1972 ruling that capital punishment was unconstitutional came at the end of a 21-year trend of fewer executions every year.  Its abortion ruling of the next year capped a similar trend toward liberalized state laws.  (Both decisions, of course, decisively ended those trends, with consequences still being felt today.  See post 270.)

And I don't think anyone can doubt that the Warren Court's "constitutionalization" of procedures in state criminal courts was a response to the use of the criminal law as a weapon of racial oppression, particularly but not exclusively in the Southern states.  But that systematized abuse was already apparent long before Miranda. 

I think the evidence is pretty strong that Justice Ginsburg hasn't thought seriously about criminal law since before the Civil Rights Act of 1964.  She's still acting on the shared assumptions of her generation and class - the well-to-do Upper West Side intellectuals of Bob Dylan's folk period.  Judging from her votes in criminal cases, I'm quite certain she sees all cops in terms of the legendary Southern lawmen of the day.  She quite sincerely wishes to right the wrongs of a generation or two ago.

Twenty or so years ago, America saw a wave of bizarre sex abuse prosecutions.  (In some instances the abuse alleged was almost as bizarre as the decision to prosecute.)  The Supreme Court stepped right up to the plate in 2004 and decided Crawford, a case that effectively prevents many child sex abuse cases from going forward - which, I think, was the point.  The Court was offering a remedy for the problems of a generation ago. 

Look around you.  Make a note of current social problems.  Future justices of the Supreme Court are assuredly doing so.  In twenty or forty years, when those same justices are too old and cosseted to have any reason to think about anything new ever again, they'll issue constitutional rulings in great clouds of self-righteousness to right the wrongs of 2007.