LITTLE ROCK — To read this week’s press coverage, you’d think not just a landmark Supreme Court case was upon us, but a jurisprudential Armageddon. The moment of truth has arrived, the die is about to be cast, the Rubicon crossed . . . pick your own favorite cliché. There are so many out there.
Charles Krauthammer, one of my favorites in the columnizing/calumniating trade, sees the fate of the Republic swaying in the balance in the current hearings on Obamacare. As he writes in the Washington Post:
“If the law is upheld, it fundamentally changes the social contract. It means the effective end of a government of enumerated powers-finite, delineated powers beyond which the government may not go, beyond which lies the free realm of the people and their voluntary institutions. The new dispensation is a central government of unlimited power from which citizen and civil society struggle to carve out spheres of autonomy.”
If the court sides with the administration, all is lost.
On the opposite but equally fervid end of the political spectrum, Linda Greenhouse waves off all such fears. And any disagreement, too. Her undiluted contempt for any who might have a different opinion is palpable. Those challenging the new health-care law, she explains, haven’t got a precedent to stand on. Their learned disquisitions amount to, well, nothing. She writes, you won’t be surprised to hear, for the New York Times.
It may be a journalistic convention to present both sides of a legal controversy in neutral fashion, she concedes, “without the writer’s thumb on the scale.” But, “free of convention, and fresh from reading the mainbriefs in the case,” Ms. Greenhouse is here to tell us that the constitutional argument against the health-care law is “so weak that it dissolves on close inspection. There’s just no there there.”
And if the court strikes down this signature achievement of the Obama administration, all reason is lost.
Now that Justices Krauthammer and Greenhouse have weighed in on the law, it’s a wonder the country needs a Supreme Court at all. Just choose your ideological sides, his or hers, and save yourself the trouble of thought. Then declare your opinion settled law. Isn’t that what the Supreme Court does?
Only it doesn’t work that way. Because no law is settled till it’s settled right. The court of history follows its own docket in its own time, and there is no appeal from its jurisdiction. No matter how many pundits assure us they know better. “Shut up,” they explain. But history, contrary as ever, won’t. And insists on filing its own amicus curiae.
The great precedents of the past may prove not so great after all. Dred Scott was going to solve the slavery question once and for all in 1857. At last the Supreme Court of the United States would render a final, decisive, comprehensive decision. No longer would thislittle matter trouble the peace and growth of the Union. Any misgivings about the Peculiar Institution could now be brushed aside. Scott v. Sandford was now settled law.
Except that it wasn’t. The next year, a gawky ex-congressman, ex-Whig and-who would’ve predicted it?-future president of the United States chose to take on the most powerful senator and celebrated orator of his day, The Little Giant himself, Stephen A. Douglas, in a series of whistle-stop debates out on the prairies of Illinois. And what had been settled no longer was.
History had intervened. Soon enough the fateful lightning of His terrible swift sword would be loosed. “Indeed I tremble for my country,” Thomas Jefferson had written in his Notes on Virginia, “when I reflect that God is just: that his justice cannot sleep for ever.” Now a new accommodation would have to be reached with destiny. Once again the Supreme Court of the United States stepped forward to lay down the law, and settlethis vexing question forever. Vanity of vanities: The court’s solution, handed down in Plessy v. Ferguson at the turn of the last century, came to be known as Separate but Equal. And by less formal appellations, like Jim Crow.
Only one justice, a Kentuckian by the name of John Marshall Harlan,who always did see too far ahead, dissented. Only he had the candor to state what everyone had to know: that there was nothing equal about separate-but-equal, that it was but a “badge of servitude,” and that it would not stand. However long it took for the country to see through it. For “there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind . . .” And so it proved.
It would take another half-century to unsettle that “settled” law. Prophecy can be slow to unfold-but unfold it will. It unfolds still. The court has declared Roe v. Wade, abortion’s great charter, to be settled law, too. Yet state by state, year after year, exception after exception, its hold on American law, and certainly on the American conscience, grows weaker.
The ranks of today’s abolitionists continue to swell. His truth is still marching on, and I tremble for my country when I reflect that God is just, and his justice cannot sleep forever.
The moral of the story: Nothing is as certain as the too-certain say it is.
Paul Greenberg is the Pulitzer Prize-winning editorial page editor of the Arkansas Democrat-Gazette.
Editorial, Pages 18 on 03/28/2012