Harlan Fiske Stone's conservatism was grounded in the belief that the law is designed to protect the weak from the powerful.
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ISLE AU HAUT, Maine -- I drink coffee in the morning on a round, ornate oak table that once belonged to Harlan Fiske Stone, a U.S. Supreme Court justice from 1925 to 1946 and the chief justice for the last five of those years. Stone and his family spent their summers on this windswept, remote island six miles off the coast of Maine.
Stone, a Republican and close friend of Calvin Coolidge and Herbert Hoover, embodied a lost era in American politics. His brand of conservatism, grounded in the belief that the law is designed to protect the weak from the powerful, bears no resemblance to that of the self-proclaimed "strict constitutionalists" in the Federalist Society who have accumulated tremendous power in the judiciary.
The Federalist Society, at the behest of President Trump, is in charge of vetting the 108 candidates for the federal judgeships that will be filled by the administration. The newest justice, Trump appointee Neil Gorsuch, comes out of the Federalist Society, as did Justices Clarence Thomas, John Roberts and Samuel Alito. The self-identified "liberals" in the judiciary, while progressive on social issues such as abortion and affirmative action, serve corporate power as assiduously as the right-wing ideologues of the Federalist Society. The Alliance for Justice points out that 85 percent of President Barack Obama's judicial nominees -- 280, or a third of the federal judiciary -- had either been corporate attorneys or government prosecutors. Those who came out of corporate law firms accounted for 71 percent of the nominees, with only 4 percent coming from public interest groups and the same percentage having been attorneys who represented workers in labor disputes.
Stone repeatedly warned that unchecked corporate power would mean corporate tyranny and the death of democracy. He was joined in that thinking by Louis D. Brandeis, his fellow justice and ally on the court, who stated, "We can have democracy in this country, or we can have great wealth concentrated in the hands of a few, but we can't have both."
The supposed clash between liberal and conservative judges is largely a fiction. The judiciary, despite the Federalist Society's high-blown rhetoric about the sanctity of individual freedom, is a naked tool of corporate oppression. The most basic constitutional rights -- privacy, fair trials and elections, habeas corpus, probable-cause requirements, due process and freedom from exploitation -- have been erased for many, especially the 2.3 million people in our prisons, most having been put there without ever going to trial. Constitutionally protected statements, beliefs and associations are criminalized. Our judicial system, as Ralph Nader has pointed out, has legalized secret law, secret courts, secret evidence, secret budgets and secret prisons in the name of national security.
Our constitutional rights have steadily been stripped from us by judicial fiat. The Fourth Amendment reads: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." Yet our telephone calls and texts, emails and financial, judicial and medical records, along with every website we visit and our physical travels, can be and commonly are tracked, recorded, photographed and stored in government computer banks.
The executive branch can order the assassination of U.S. citizens without trial. It can deploy the military into the streets to quell civil unrest under Section 1021 of the National Defense Authorization Act (NDAA) and seize citizens -- seizures that are in essence acts of extraordinary rendition -- and hold them indefinitely in military detention centers while denying them due process.
Corporate campaign contributions, which largely determine who gets elected, are viewed by the courts as protected forms of free speech under the First Amendment. Corporate lobbying, which determines most of our legislation, is interpreted as the people's right to petition the government. Corporations are legally treated as persons except when they carry out fraud and other crimes; the heads of corporations routinely avoid being charged and going to prison by paying fines, usually symbolic and pulled from corporate accounts, while not being forced to admit wrongdoing. And corporations have rewritten the law to orchestrate a massive tax boycott.
Many among the 1 million lawyers in the United States, the deans of our law schools and the judges in our courts, whether self-identified liberals or Federalist Society members or supporters, refuse to hold corporate power accountable to the law. They have failed us. They alone have the education and skill to apply the law on behalf of the citizens. They alone know how to use the courts for justice rather than injustice. When this period of American history is written, the legal profession will be found to have borne much of the responsibility for our descent into corporate tyranny. Lawyers are supposed to be "officers of the court." They are supposed to be sentinels and guardians of the law. They are supposed to enlarge our access to justice. They are supposed to defend the law, not subvert it. This moral failure by the legal profession has obliterated our rights.
The radical libertarians in the Federalist Society, now ascendant within the legal system, champion a legal doctrine that is essentially pre-industrial. It is centered exclusively on the rights of the individual and restricting the power of government. This can at times lead to rulings that protect personal liberty. The followers of this doctrine on the Supreme Court, for example, voted to overturn Connecticut's eminent-domain rape of a New London working-class neighborhood to make way for a pharmaceutical plant. The liberals, who formed the court majority, endorsed the taking of the neighborhood.
Another example of radical libertarianism on the bench occurred when attorneys Bruce Afran and Carl Mayer and I sued President Obama over Section 1021 of the NDAA, which overturned the 1878 act that prohibited the government from using the military as a domestic police force. We garnered support from some charter members of the Federalist Society. The proclivity by the Federalist Society to hold up the primacy of individual rights became especially important when, after the temporary injunction of Section 1021 issued by the U.S. District Court for the Southern District of New York was overturned by the appellate court, we had to file a cert, or petition, to request that the case, Hedges v. Obama, be heard before the Supreme Court.
"As obnoxious as [Antonin] Scalia was on cultural issues, he was the strongest modern justice in terms of protecting First Amendment speech, press and assembly rights -- no liberal came anywhere near him in these areas," Afran told me about the late justice. "In fact, Scalia was the justice who sympathized with our cert petition in the NDAA case. [Justice Ruth Bader] Ginsburg denied our petition without circulating it among the other justices. When we went to Scalia, he immediately asked for additional briefs to circulate. It was his dissents in the Guantanamo cases that we relied on in our cert petition. He issued strong dissents holding that the Guantanamo inmates and others taken by the military in Afghanistan should have complete civil rights in criminal prosecutions. He went much further than the majority did in these cases and condemned any holding of civilians by the military."
But although the Federalist Society purports to be against curtailment of civil liberties, with some members embracing traditional liberal positions on issues such as drug laws and sexual freedom, the organization also supports the judicial system's position that corporations hold the rights of individuals. It is hostile to nearly all government regulations and regulatory agencies including the Environmental Protection Agency and the Securities and Exchange Commission. It opposes the rights of labor unions, voting rights laws, gender equality laws and the separation of church and state. It seeks to outlaw abortion and overturn Roe v. Wade.
The self-proclaimed "originalism" or "textualism" philosophy of the Federalist Society has crippled the ability of the legal system to act en masse in class action suits against corrupt corporate entities. And for all the rhetoric about championing individual liberty, as Mayer pointed out, "they never did a thing about any First Amendment intrusions that all of the legislation passed after 9/11 involved." The Supreme Court did not accept our cert, leaving Section 1021 as law.
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