Justices Who Won't 'Run With the Wolves'

By Geoffrey R. Stone

Geoffrey R. Stone, a professor of law at the University of Chicago, is the author of "Perilous Times: Free Speech in Wartime," just published by W.W. Norton.

Los Angeles Times

November 16, 2004

In time of war, Americans have too often responded to fear and anxiety by harshly restricting constitutional liberties.

At the end of the 18th century, for example, when the nation faced the threat of war with France, the government enacted the Sedition Act of 1798, which effectively made it a crime for any person to criticize the president, Congress or government of the United States.

During the Civil War, President Lincoln repeatedly suspended the writ of habeas corpus, allowing as many as 38,000 individuals to be seized and imprisoned by military authorities without any recourse to judicial review.

During World War I, the government enacted the Espionage Act of 1917 and the Sedition Act of 1918 to quell antiwar dissent. More than 2,000 opponents of the war were prosecuted.

In World War II, the United States interned nearly 120,000 people of Japanese descent, 90,000 of whom were American citizens, removing them from their homes and relocating them in crude concentration camps.



During the Cold War, the U.S., fearful of Soviet espionage and sabotage, fell into a mindless witch hunt implemented through brutal legislative investigations, pervasive blacklists and criminal prosecutions.

During the Vietnam War, the government aggressively infiltrated antiwar organizations to disrupt and neutralize the antiwar movement. The FBI compiled files on more than half a million Americans purely because of their opposition to the nation's policy in Vietnam.



It is not surprising that we respond this way in wartime. War excites great passions. Thousands, perhaps millions, of lives may be at risk.

Moreover, war generates a powerful mass psychology. Emotions run high, and spies, saboteurs and terrorists are seen lurking around every corner. Anything that increases the risk to our troops — our sons and daughters — is feared and despised.

In such an atmosphere, loyalty is the order of the day. The line between freedom and danger, dissent and disloyalty, is elusive and often ignored.

The conventional wisdom is that the role of the Supreme Court is to help protect us against our own worst instincts in such circumstances. As the guardian of our constitutional liberties, it often falls to the court to say "enough." Sometimes, however, the court has failed to meet this responsibility.

In World War I, the Supreme Court consistently upheld the convictions of antiwar dissenters; in 1944, the court upheld the constitutionality of the Japanese internment; and in the early 1950s the court upheld the government's persecution and prosecution of individuals accused of disloyalty. As Justice William O. Douglas observed at the time, the court had decided "to run with the wolves."

On other occasions, however, the court has stood firm. In 1866, the court held that Lincoln had exceeded his constitutional authority in imposing martial law. During World War II, the court protected 1st Amendment rights of American fascists when the government tried to deport and denaturalize them. In the late 1950s and early '60s, the court helped put an end to the era of McCarthyism. During the Vietnam War, the court refused to enjoin the publication of the Pentagon Papers. And just last spring, the court emphatically rejected the Bush administration's positions with respect to the detainees at Guantanamo Bay and the rights of American citizens who had been seized and held incommunicado by the government as "enemy combatants."

Like all institutions of government, the Supreme Court is only as good as the individuals who wield its authority. The consensus among Supreme Court-watchers is that in the next four years President Bush will probably appoint at least three justices to the court. Bush says his nominees will be similar to the current justices he most admires, Antonin Scalia and Clarence Thomas.

Thomas was the only justice who voted to uphold the claims of the Bush administration in both of the Supreme Court decisions last spring involving the "war on terrorism," and Scalia sided with the administration in one of the two cases. Three more justices of this ilk would tragically tip the balance of power.

What the nation needs now are not justices who will deferentially bow to the executive branch and repeat the mistakes of the past, but justices with the wisdom to know excess when they see it and the courage to preserve liberty when it is imperiled.

This is no time to run with the wolves.