Back in 1992, when the good folks at the Butler University Political Science Department must have been a little desperate for some class coverage, they asked me to teach a semester of constitutional law. I ended up standing in front of a classroom full of pre-law students, where I held up one of my former law school casebooks, a 5-pound text full of heavily footnoted analysis of centuries of decisions by the United States Supreme Court. This, I said, will not be assigned reading in this class. Instead, I walked to the blackboard and wrote in big letters: LAW = POLITICS.
Back then, I earned my cynicism daily. I was working as a public defender and would soon switch to representing poor people in civil cases. It was impossible to reconcile the textbook's breathless descriptions of the wonders of constitutional jurisprudence with my observation of teeming criminal courts where a single public defender was assigned to handle dozens of clients every day. Or drug enforcement courts where almost every defendant was a person of color. Or small claims courts where hundreds of low-income tenants were evicted from their homes every day without a meaningful hearing or a chance to talk to a lawyer.
During the late 18th century debate over the drafting of the Constitution, Thomas Jefferson wrote to James Madison, "If rendered independent and kept strictly to their own department, [the judiciary] merits great confidence for their learning and integrity." Perhaps. But I pointed out to my students that scholarly analysis often mistakenly portrays judges as floating on an intellectual and moral plane somewhere far above the grimy world of politics. In fact, judges at every level are the winners of typically fierce political competition in which a black robe and an inflated reputation for impartiality are the winner's spoils.
Hoary templates for analysis of constitutional disputes - should the equal protection claim be evaluated under "strict scrutiny," "middle-tier scrutiny" or "rational basis" analysis? - too often camouflage judges' use of the same subjective filter the rest of us employ when discussing constitutional issues like the death penalty, abortion or the rights of the criminally accused.
My class thesis debunking the mystique of the law gave us plenty of historical evidence to review that semester. The U.S. Supreme Court gave the legal imprimatur to slavery in the 1857 Dred Scott decision, approved the internment of Japanese Americans in the 1944 Korematsu case and engaged in politically-motivated flip-flopping in 20th century regulation of commerce and labor. And I didn't even have 2000's Bush vs. Gore at hand to serve as the most compelling example of brute politics played out on the nation's highest bench.
But if any of those 1992 Butler poli sci students are still out there, I have some additional reading to assign.
I'm not completely abandoning my treasured cynicism, but I have to admit that the Supreme Court's recently concluded term is cause to rethink my view. In a series of landmark cases handed down last month, the court put on a show of desperately needed separation from the narrow-minded, fear-dominated, poll-driven politics of the day.
For example, in a resounding 8-1 decision in the case of Hamdi vs. Rumsfeld, the court rebuffed President Bush's monarchic attempt to unilaterally declare U.S. citizens "enemy combatants" and thereby both incarcerate them without probable cause and revoke in perpetuity the right to challenge their detention. Not so fast, commander in chief, said Justice O'Connor. "A state of war is not a blank check for the president when it comes to the rights of the nation's citizens," she wrote in her majority opinion.
Arch-conservative Justice Antonin Scalia voiced an even stronger concurring view, in which he was joined by one of the most liberal members of the court, Justice John Paul Stevens. "The very core of liberty secured by an Anglo-Saxon system of separated powers has been freedom from indefinite imprisonment at the will of the executive," Justice Scalia wrote.
Six of the justices voting to block a power grab by a Republican president, including Scalia, O'Connor and Stevens, were all appointed by Republican presidents. Now that is the independent judiciary Thomas Jefferson was talking about. In separate cases that will also resonate for decades, the court rejected President Bush's attempt to hide detainees in the legal limbo of Guantanamo Bay and opened the United States courts to claims by torture victims worldwide.
Of course, the Supreme Court's term was not entirely a glorious tribute to the judiciary. The court further eroded the already threadbare Fourth Amendment right to be free from unreasonable government intrusion by requiring some persons suspected of criminal activity - but not under arrest - to identify themselves to police officers. The court also gave legislators a free hand in drawing gerrymandered incumbent-protecting districts and issued a troubling death penalty decision letting many executions stand even when a judge wrongly overruled the jury's recommendation to spare the life of the defendant.
Overall, though, the court provided mouth-to-mouth resuscitation for a constitutional democracy that has been wheezing since Sept. 11. In an age where profiles in political courage are rare and the latest poll numbers too often dictate principles, the third branch of government seems to be stepping up.
And not a minute too soon. With politically-charged challenges to the Patriot Act, racial profiling and the doctrine of separation of church and state headed their way, we need a Supreme Court that will keep proving my 1992 Butler syllabus all wrong.
Fran Quigley is the executive director of the Indiana Civil Liberties Union, www.iclu.org.