Great Exudations

Our laws cannot defend themselves. It takes people of sound reason and skill and passion (delivered dispassionately) and knowledge and courage. People who make forceful and logical arguments based upon facts and historical/legal precedent who will not bow to intimidation. Again, and again, and again until whatever febrile illness (in Trump’s case a fulminant coliform septicemia) that has overtaken our body politic has been broken. A blatant disregard for the laws and norms of our country simply cannot stand. Lawyers and judges have a sacred responsibility to uphold the Constitution, akin to medicine’s Hippocratic oath. So far, the response from our legal system have been tepid at best. Yes, several judges are holding the line in the face of death threats and the absurd talk of impeachment (I hasten to note that talk of SCOTUS “impeachment” and “recusals” from the Left related to the uncovering of blatant conflicts of interest, not simply their judicial opinions). But it is laughably illegal to bar members of certain firms from access to government buildings, for their lawful representation of clients, in an effort to extract concessions. This is Trump at his absolute worst: defiling the Constitution to serve his own narcissistic desire for revenge. It’s antithetical to democracy and is being abetted by a rogue GOP. And I sure hope that these assailed law firms are busy plotting a furious counter-offensive and not simply protecting their damn bonuses. Sometimes you have to step into the gutters and muddy your fancy white shoes. Wake the fuck up, motherfuckers!!

I’ve just finished the prologue to “The Great Dissenter,” a book by Peter Canellos about Supreme Court justice John Marshall Harlan. His lone dissenting opinions in several landmark cases at the end of the 19th century formed the basis of major civil rights reform decades later in the mid 20th. The majority opinion (8-1) in Civil Rights Cases of 1883 defanged the protections afforded by the 13th and 14th Constitutional Amendments enacted during the Reconstruction, returning jurisdiction for discriminatory acts back to the states where former Confederates and active Klan members presided. Harlan’s response underlined what he said had already been established by the Civil Rights Act of 1866 and in those amendments: “The supreme law of the land has decreed that no authority shall be exercised in this country on the basis of discrimination, in respect of civil rights, against freemen and citizens because of their race, color, or previous condition of servitude.” In a glorious irony, he penned his dissent with the very same inkstand that the ignominious Roger B. Taney had used for his now infamous (and, yes, dreadful) Dred Scott decision in 1857. Frederick Douglass called the 1883 decision “an act of surrender, almost akin to treachery.” He went on to say that Harlan’s dissent “should be scattered like leaves of autumn over the whole country.” He was right, of course, it would just take many decades for those leaves to take root in our nation’s recognized laws. And it was the great Thurgood Marshall who successfully argued for the plaintiffs before the Supreme Court in the 1954 case Brown v Board of Education, which finally overturned the precedent set in the 1896 case Plessy v. Ferguson (“separate but equal”). He is said to have waged his long campaign against racial injustice armed mainly with Harlan’s lone dissent in that case (a position Trump would have called a “loser”). The bottom line here is that against authoritarianism we do not acquiesce in advance and we doggedly defend essential institutions. With Trump and his storm troopers assaulting the free press, our universities, numerous government agencies, and much of the judicial system, we desperately need a few more heroes like John Marshall Harlan and Thurgood Marshall. The response to date from our big-shot law firms and marquee universities has been less than inspiring.