Future of American Justice Depends on Restoration of Bill of Rights
This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.
In addition to acknowledging the many positive messages I received about my column here last week partly about Justice Scalia, I want to thank Shannen Coffin, a chirpily content former Justice Department official and legal counsel to Vice President Cheney, for writing, despite his farrago of sophomoric pedantries and disparagements. After his opening summary, he conveniently put the question: “Have I got that right?”
I am afraid not, and he didn’t get much else right either, which enables me to clarify some points that are important and that the Coffin message indicates remain ambiguous. I share Mr. Coffin’s high opinion of Justice Scalia, which is why I am disappointed in what I do consider to be “inconsistency” (Coffin) in some of the justice’s legal and theological views.
Mr. Coffin invokes, like Chamberlain returning from Munich and waving aloft his peace pledge with Hitler, Justice Scalia’s opposition to partial-birth abortion. To someone who takes the official Roman Catholic position on abortion seriously (and I too am one who does), partial-birth abortions are infanticide, and for publicly adherent Roman Catholics to oppose them is not a triumph of ultramontane orthodoxy.
Mr. Coffin’s portentous unguided stroll into the minefield of the abortion and death-penalty debates (I am grateful to him for not dragging us into euthanasia, suicide assistance and prevention, and “just” wars) left us stranded amidst undetonated high explosives. His claim that there is any ambivalence about the Holy See’s opposition to the death penalty is spurious. It notionally accepts that capital punishment may exceptionally be defensible, but is, and long has been, hostile to the routine execution of those convicted of capital crimes, as occurs in the United States frequently and with the explicit general approval of the majority of the Supreme Court, including Justice Scalia.
Neither (I prayerfully hope) Mr. Coffin nor I would claim theological qualifications to debate the competing merits of the right to life of the unborn and those convicted of capital crimes. In a word, the unborn are obviously blameless, but their acquired rights as people are disputed by many in society, mistakenly as Justice Scalia and I may usually think that may be. And no sane and informed person could attach much credence to the ability of U.S. courts unfailingly to produce just and condign verdicts and sentences when prosecutors demand the death penalty. There is also the general Catholic principle that life is sacred, a status that is not expunged in respect of those judged guilty of heinous illegalities.
Mr. Coffin was, I believe, legal counsel to the vice president when Mr. Cheney’s chief of staff, Scooter Libby, was, to say the least, un-rigorously convicted at the behest of one of the most unscrupulous and fanatical prosecutors in America, by probably the most passionately partisan mainly white jury the District of Columbia has seen since the (Herbert) Hoover administration. It is not conceivable to me that, given his professional experience, Mr. Coffin labors under onerous misconceptions about what a stacked deck U.S. criminal justice is.
In my last NRO column, which flushed Mr. Coffin out, bursting with pieties and aspersions, I foreswore a recitation of my own encounters with the U.S. justice system. I will slightly strain, but not break, those vows here, in writing that I do hold the Supreme Court ultimately responsible for tolerating a severe erosion of the Bill of Rights guarantees of due process and individual legal rights.
Every informed person in the United States knows that the grand jury is a farce and a rubber-stamp for prosecutors, that private property is routinely seized without compensation in ex parte actions on the basis of false affidavits (often to deny defendants the ability to pay avaricious American lawyers for a defense), that justice is rarely prompt, that juries are often partial after the prosecutors have poisoned the public-relations wells, and that access to counsel is widely obstructed and bail is often unreasonable, all contrary to the Fifth, Sixth, and Eighth Amendments.
This is certainly not down to Justice Scalia. He is, however, a long-serving and very intelligent and outspoken justice, more prone than others to invoke the precepts of his (and my) Church in aid of views he shares. And he is less closely identified with them in areas where his own views as a judge diverge from those expressed by the Holy See. Obviously, Justice Scalia’s religious views are his own affair, even when he publicly proclaims them, and he has the right and duty to make up his own mind by whatever lights he chooses on the matters he adjudicates.
But Mr. Coffin’s effort to invoke the Church’s position on abortion and not the death penalty, and distinguish them by a marginal difference in levels of disapprobation, is a clumsy effort at casuistry. (I think I could defend myself, if there were any need to do so, from his charge against me of being “woefully misinformed.”)
The larger point is that the entire American justice system is crumbling. The country has nearly 48 million people with a criminal record; it has half the lawyers and a quarter of the incarcerated people in the world, and annual legal costs almost as large as the GDP of India. Congress is stuffed with second-rate lawyers who pass grandstanding laws that clutter the courts with what other serious jurisdictions would consider frivolous and vexatious litigation, and the benches are infested with unregenerate ex-prosecutors.
The executive is led about in these matters by an out-of-control prosecutocracy that is an unaccountable state within a state. I had hoped that when the prosecutors wrongly took down the vice president’s chief of staff and then destroyed the career of a long-serving senator (Ted Stevens) on the basis of what was soon admitted to be sleazy evidentiary practices, and was reversed, the Congress, the judiciary, and even the more sensible elements of the administration would apply some checks and balances.
It hasn’t happened; the prosecutors win over 90% of their cases, almost 90% of the time by negotiation, because of the fascistic permutation of the plea bargain into the extortion or subornation of incriminating perjury, and the threat of a much heavier sentence if the constitutionally guaranteed right to a trial is exercised.
All legally informed persons in this country, including Shannen Coffin and the justices of the U.S. Supreme Court, know all this. If a brilliant, righteous, and fearless justice like Antonin Scalia is going to rail against co-educational college dormitories while lawless prosecutors are running amok throughout the land, it is indeed, time to pray, and not just for the coeds, the unborn, and the denizens of death row.
The antics of spear-carrying cheerleaders of the foundering system, like Shannen Coffin, will count for little in this reckoning. But the Supreme Court is constantly petitioned to restore the Bill of Rights, which is almost the entire basis of the (now rather ragged) claim of America to be the land of the free. The Supreme Court is the guardian, interpreter, and ultimate imposing authority of the Constitution. The whole country has a right to know where the Court has been while the Bill of Rights has been put to the shredder. The future of the United States as a center of the rule of law depends on its restoration.
This column first appeared in the National Review.