by Nat Hentoff
from HUSTLER Magazine January 2011

OUR NEWEST SUPREME COURT JUSTICE MAY BE A WOLF IN SHEEP’S CLOTHING.

As soon as a President nominates anybody to the Supreme Court, I start my research into that person hard and deep. I wholly agree with the late Chief Justice Earl Warren that “the preservation of our [individual] civil liberties [is] the most fundamental and important of all our governmental problems. … If we ever permit those liberties to be destroyed, there will be nothing left in our system worthy of preservation.”

Elena Kagan, former dean of Harvard Law School, is now one of the nine potentates whose decisions—or refusal to review Constitutional rulings by lower courts—will affect millions of us for years to come.The common synonym for the John Roberts Court she joins is “conservative.” So, as has often occurred, when there’s a 5-4 decision, will Elena Kagan be a champion of the Bill of Rights or a soul sister of Antonin Scalia?

How much do you know about the Court’s newest member? Kagan’s Senate confirmation hearings were customarily shallow, and the press in all its forms did very little digging of its own. Worse yet, as weekly national columnist and radio commentator John Whitehead accurately observed: “The average American…lacks even a rudimentary knowledge of the Constitution or Bill of Rights. … Martial law…may be one terrorist attack away.”

Think of what remnants of the Bill of Rights would have been blown to bits if the would-be Times Square car bomber had been successful.

In 2009, arguing on a case before the Supreme Court, Elena Kagan actually said:“Whether a given category of speech enjoys First Amendment protection depends upon a categorical balancing of the value of speech against its societal costs.” In all the writings of James Madison, the Father of the First Amendment, you’ll never find such broad and vague censorship of free speech. Who has this power to cripple free speech? The High Court on which Kagan now sits!

And dig this Kagan disemboweling of our rule of law. It never came up in the confirmation hearings or in the press—except from Harvey Silverglate in the Boston Phoenix. A Constitutional lawyer I’ve been learning from for years, Silverglate is coauthor of The Shadow University, the book that first exposed collegiate administrators’ ruthless attacks on the free speech of free-thinking students and professors on campuses nationwide. These “speech codes” have since been regularly exposed and shamed by FIRE (Foundation for Individual Rights in Education), which Silverglate cofounded. (I’m on its Advisory Committee.)

Silverglate tells of two black men in Iowa who were caged for 25 years before they learned that the key testimony against them had been beaten out of the so-called witnesses. And to make sure the defendants would be convicted, the prosecution had lawlessly withheld exculpatory evidence favorable to them.

At long last the case reached the Iowa Supreme Court, which threw out one defendant’s conviction and cut the other’s sentence to time served. Naturally, citing the rawly clear violations of their Constitutional rights and the government’s theft of all those years of their lives, these Americans betrayed by our legal system sued for damages.

Their case ultimately reached the Supreme Court of the United States, where a crucial question focused on the accountability of the prosecutors who so cruelly violated the defendants’ Sixth Amendment right to a fair trial. In a friend-of-the-court brief, Elena Kagan—then Obama’s Solicitor General (the President’s representative in matters before the Supreme Court)—insisted that there be “absolute immunity” for those lawless prosecutors!

Kagan told the Justices, who are now her colleagues, that making those Iowa prosecutors accountable for this blatant false imprisonment (my words, not hers) would result in “untold social costs.” Like what? Preventing the conviction of the innocent?

Our new Supreme Court Justice claimed there should be no penalty for so callously violating the Bill of Rights. There wasn’t a peep of disagreement from her boss—then and now. It’s getting harder and harder to believe that Barack Obama once taught Constitutional law at the University of Chicago.

I’m not surprised. In April 2010 the New York Times reported that during a chat with reporters on Air Force One, Obama had imperiously criticized the Earl Warren Supreme Court for going out of its proper way by decisions that overruled elected officials. This was the Supreme Court that decided to exclude from trials any evidence illegally obtained by investigators (Mapp v. Ohio) and also established the Miranda right of any American arrested to remain silent. And to keep the core of the Constitution functioning, the Warren Court— in New York Times v.Sullivan —nailed down the First Amendment right to criticize public officials.

That is the Supreme Court Obama says went too far. Now he’s comfortable with Elena Kagan on the Roberts Court. He’s also delighted, I expect, that his choice for the Court, during her confirmation hearings, agreed with Obama (as the New York Times reported) that “people suspected of helping to provide material support to terrorists” should be subject to battlefield law— including detention without trial—even if they were not captured in a battle zone.

“Material support”? Talk about a model of broadness and vagueness of incriminating language!

This President has also been insistently advocating his power to imprison terrorism suspects indefinitely if he can’t put them on trial before military commissions or in our federal courts because the evidence against them was extracted by our having tortured them. It’s called “permanent detention.”

If Obama gets the legislation to do that— thereby showing the world again how distorted our rule of law has become under Bush, Cheney and Obama—the President will have a cheerleader on the Roberts Court for his mocking the Declaration of Independence’s insistence that “we have a decent respect to the opinions of mankind.” And a decent respect for ourselves.

Nat Hentoff is a historian of the Constitution, a jazz critic and a columnist for the Village Voice and Free Inquiry. His incisive books include The First Freedom: The Tumultuous History of Free Speech in America ; Living the Bill of Rights ; and the forthcoming Is This America?
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