Olson's co-counsel Philip Gregory brought to Friday's hearing something that was otherwise missing in hours of technical debate: honest passion. Gregory made a moral as much as a legal case on behalf of the rights of the plaintiffs, a row of several teenagers seated in the front row of the courtroom.
Judge Wilkins argued to Gregory that either he was being asked to tell six government agencies that they were not doing their jobs as required by statute -- in which case, the judge said, such matters could be handled one-at-a-time outside of this lawsuit, or he was being asked to instruct six agencies to act outside of their Congressional mandate. Gregory's response focused, rightly, on the magnitude and urgency of the crisis we face.
Trying to get courts to do Congress's job may, in fact, not be ideal. Trying to get state or foreign prosecutors to indict Bush for torture is not ideal. Pinochet's indictment in Spain was not ideal. Federal desegregation of Southern states was not ideal. Protecting voting rights state-by-state is not ideal. But in an emergency, shouldn't one try the tools that are available? And shouldn't one drop counterproductive pretenses, such as the pretense that a functioning Congress still exists?
What if the mythical humanized frogs in the pot of gradually warming water -- thousands and thousands of such frogs in a giant pot on a giant stove -- had a frog government? And what if the frog Congress had been bought off with piles of flies by a frog whose business it was to sell tiny, cold, bottled water to the frogs as they warmed? If the frog courts decided to leave the decision to hop out of the pot to the frog Congress, they would make the correct decision that would best allow representative frog government in the future. But would that do anything to guarantee that there would be any future for those frogs?
In case it isn't blatantly obvious, the above and everything else written here is my opinion, not the plaintiffs' legal arguments. The hearing ran for about three hours, and was all very formal and polite. Judge Wilkins generously thanked both sides for their "sincerity, diligence, and earnestness."
"But I would be remiss," he added, "if I did not say that it is a struggle for any judge to determine based on our Constitutional system how best to play the proper role in adjudicating a case like this one. I don't take the Constitution lightly. . . ."
"That said, it behooves all of us, regardless of the resolution of this case, to really think about what we can do to resolve this very serious problem."
Of course, we aren't all in the same position to do the same amount of good. By ruling that this case can proceed, Wilkins would open up a public forum on intergenerational justice and a ground-breaking earth-protecting suit that the plaintiffs would be very likely to win. Future generations would, quite likely, revere the name Robert Wilkins. His heroism would not be quickly forgotten.