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The Roberts Court unravels a generation of progress

WHILE IN LAW SCHOOL in Washington, D.C., in the late '60s, I heard Justice William O. Douglas explain at a public forum that his support for the Warren Court's "criminal law revolution" was undergirded by his fear that the nation's police stations were staffed in no small part by "crypto-fascists."

Though his pithy phrase never found its way into any of the Warren era's cases-many of which solidified the Constitution's protection for those accused of crime-Justice Douglas shared with his colleagues a passion for the Founding Fathers' luminous idea that the Bill of Rights was created to restrain, and sometimes thwart, the actions of government officials.

Along with Chief Justice Earl Warren and Associate Justices Hugo Black, William Brennan and Thurgood Marshall-as well as his more cautious brethren, Justices John Marshall Harlan and Felix Frankfurter-Douglas and his colleagues viscerally understood Chief Justice John Marshall's famous 1819 declaration that "it is a Constitution we are expounding." They protected and expanded free speech rights for antiwar and civil rights activists, and drew within the Constitution's protections many groups previously excluded: racial minorities, women, prisoners, probationers and school children.

The Bush-Roberts Court rejects this commitment to liberty and equality. Under Chief Justice John Roberts and his major domo Antonin Scalia, "the spirit of the laws" (to borrow the 18th century French philosopher Montesquieu's apt phrase) exalts order over liberty, and institutional prerogatives-governmental or private-over the individual.

There are occasional happy exceptions to this: The current court preserved confrontational rights for the accused in criminal trials and sought to ameliorate the harshness of federal sentencing guidelines. And the 2004 Guantanamo cases curbed some of Bush's more odious powers.

Still, folk wisdom supplies the most charitable assessment of this court: Even a blind pig finds an acorn now and then.

WHERE DOES THIS deference to institutional power and prerogatives, with its accompanying hostility toward "average people," come from? In 1921, Justice Benjamin Cardozo suggested an answer that was as applicable then as it is today: "The great tides and currents which engulf the rest of men do not turn aside in their course and pass the judges by."

Tellingly, no member of the current Supreme Court has ever defended a person accused of committing a felony, which means they have no experience with the dynamics of a criminal trial and have never rubbed shoulders in a dilapidated cell block with the poor and battered souls, predominantly of color, who are hauled into the nation's criminal courts. Roberts made his fortune representing the interests of corporate America, and all members of the court were corporate, academic or governmental careerists. With the exception of Justice Ginsburg's background litigating for women's reproductive freedom and fairness in the workplace, no current justice came to the high court with a reputation as a champion of civil rights or poor people.

Contrast the backgrounds of the BushRoberts Court with those who served prior to 1986, the beginning of the court's demise, when Reagan elevated William Rehnquist to chief justice and appointed Scalia as associate justice. Where the Bush-Roberts Court is suffused with corporate parochialism, the Warren Court was worldly. In the aggregate, it included a former California governor (Warren); a country lawyer who defended accused moonshiners and striking miners, and later served in the U.S. Senate (Black); a brilliant strategist and litigator who kicked open the legal doors of school segregation (Marshall); a trial judge from a labor union household (Brennan); an anti-rackets prosecutor (Harlan); and a Harvard Law School professor who defended Sacco and Vanzetti (Frankfurter).

Contrary to the methodology of the Warren Court, the high court under Roberts follows in the tradition of Rehnquist. …