1953

In January, 2006, I wrote a strident, desperate column, urging the rejection of the nomination of Samuel Alito to the Supreme Court. I titled it "No Tomorrow."

As Benjamin Franklin left the final day of deliberation by the Constitutional Convention in 1787, a citizen supposedly asked him, "Well, Doctor, what have we got--a Republic or a Monarchy?" Franklin replied, "A Republic, if you can keep it."

If all goes as planned, in a week or so that Republic will finally escape our grip. When the Senate votes to affirm Samuel Alito to the Supreme Court, the central tenet of our government - the separation of powers - will take a blow from which it will likely never recover. In its place a de facto monarchy will solidify and expand, and our Constitution will join the Geneva Convention as a quaint anachronism. And the Republic we have kept for two hundred years will join its Athenian and Roman predecessors as good ideas whose time has passed.

I rest my case.

The specific danger I pointed to (the imperial executive) is simmering along without assistance from the Supremes. (Their turn will come, and soon.) What happened yesterday is shocking even to many cynics.

If you had asked me a decade ago to name the achievement of the Warren Court that I thought was most impregnable, I would have named Brown v. Board of Ed.

As with so much else that the right wing has done in the last decade, they deny what they are doing even as they do it. But the reality is that Brown has now been overturned.

The late Chief Justice Rehnquist was a clerk to Justice Jackson during the pendency of Brown. He wrote an infamous memo to his boss in which he said (via Wikipedia):

"I realize that it is an unpopular and unhumanitarian position, for which I have been excoriated by 'liberal' colleagues but I think Plessy v. Ferguson was right and should be reaffirmed." Rehnquist continued, "To the argument...that a majority may not deprive a minority of its constitutional right, the answer must be made that while this is sound in theory, in the long run it is the majority who will determine what the constitutional rights of the minorities are."^[16] Rehnquist also argued for Plessy with other law clerks.^[17] However, during his 1971 confirmation hearings, Rehnquist said, "I believe that the memorandum was prepared by me as a statement of Justice Jackson's tentative views for his own use." Justice Jackson had initially planned to join a dissent in Brown.^[18] Later, at his 1986 hearings for the slot of Chief Justice, Rehnquist put further distance between himself and the 1952 memo: "The bald statement that Plessy was right and should be reaffirmed, was not an accurate reflection of my own views at the time."^[19] In any event, while serving on the Supreme Court, Rehnquist made no effort to reverse or undermine the Brown decision, and frequently relied upon it as precedent.^[20]

Twenty years ago, Brown was untouchable. Even Rehnquist refused to (publicly) embrace his own opposition. Now we are back to the oxymoronic separate but equal.

1953 -- the year before Brown -- really does seem to be the touchstone for these folks. It was the height of McCarthyism -- the time when commies under the bed justified all of the excesses revived today. It was a time before hippies, before Rosa Parks, and before the Warren Court put the now-extracted teeth into the Bill of Rights. It was the fin de siècle for the exclusive male WASP power structure. And they are doing everything they can to get back to it.

Update: To help contextualize the time, here is another bit from the 1953 time capsule:



As I have pointed out before, what we see as warning, they see as how-to guide.