This story first appeared on the TomDispatch website.
I met Supreme Court Justice William Brennan in 1987 when I was creating a series for public television called In Search of the Constitution, celebrating the bicentennial of our founding document. By then, he had served on the court longer than any of his colleagues and had written close to 500 majority opinions, many of them addressing fundamental questions of equality, voting rights, school segregation, and—in New York Times v. Sullivan in particular—the defense of a free press.
Those decisions brought a storm of protest from across the country. He claimed that he never took personally the resentment and anger directed at him. He did, however, subsequently reveal that his own mother told him she had always liked his opinions when he was on the New Jersey court, but wondered now that he was on the Supreme Court, "Why can't you do it the same way?" His answer: "We have to discharge our responsibility to enforce the rights in favor of minorities, whatever the majority reaction may be."
Although a liberal, he worried about the looming size of government. When he mentioned that modern science might be creating "a Frankenstein," I asked, "How so?" He looked around his chambers and replied, "The very conversation we're now having can be overheard. Science has done things that, as I understand it, makes it possible through these drapes and those windows to get something in here that takes down what we're talking about."
That was long before the era of cyberspace and the maximum surveillance state that grows topsy-turvy with every administration. How I wish he were here now—and still on the Court!
My interview with him was one of 12 episodes in that series on the Constitution. Another concerned a case he had heard back in 1967. It involved a teacher named Harry Keyishian who had been fired because he would not sign a New York State loyalty oath. Justice Brennan ruled that the loyalty oath and other anti-subversive state statutes of that era violated First Amendment protections of academic freedom.
I tracked Keyishian down and interviewed him. Justice Brennan watched that program and was fascinated to see the actual person behind the name on his decision. The journalist Nat Hentoff, who followed Brennan's work closely, wrote, "He may have seen hardly any of the litigants before him, but he searched for a sense of them in the cases that reached him." Watching the interview with Keyishian, he said, "It was the first time I had seen him. Until then, I had no idea that he and the other teachers would have lost everything if the case had gone the other way."
Toward the end of his tenure, when he was writing an increasing number of dissents on the Rehnquist Court, Brennan was asked if he was getting discouraged. He smiled and said, "Look, pal, we've always known—the Framers knew—that liberty is a fragile thing. You can't give up." And he didn't.
The Donor Class and Streams of Dark Money
The historian Plutarch warned us long ago of what happens when there is no brake on the power of great wealth to subvert the electorate. "The abuse of buying and selling votes," he wrote of Rome, "crept in and money began to play an important part in determining elections. Later on, this process of corruption spread in the law courts and to the army, and finally, when even the sword became enslaved by the power of gold, the republic was subjected to the rule of emperors."
We don't have emperors yet, but we do have the Roberts Court that consistently privileges the donor class.
We don't have emperors yet, but we do have a Senate in which, as a study by the political scientist Larry Bartels reveals, "Senators appear to be considerably more responsive to the opinions of affluent constituents than to the opinions of middle-class constituents, while the opinions of constituents in the bottom third of the income distribution have no apparent statistical effect on their senators' roll call votes."
We don't have emperors yet, but we have a House of Representatives controlled by the far right that is now nourished by streams of "dark money" unleashed thanks to the gift bestowed on the rich by the Supreme Court in the Citizens United case.
We don't have emperors yet, but one of our two major parties is now dominated by radicals engaged in a crusade of voter suppression aimed at the elderly, the young, minorities, and the poor; while the other party, once the champion of everyday working people, has been so enfeebled by its own collaboration with the donor class that it offers only token resistance to the forces that have demoralized everyday Americans.
Writing in the Guardian recently, the social critic George Monbiot commented,
"So I don't blame people for giving up on politics…When a state-corporate nexus of power has bypassed democracy and made a mockery of the voting process, when an unreformed political system ensures that parties can be bought and sold, when politicians [of the main parties] stand and watch as public services are divvied up by a grubby cabal of privateers, what is left of this system that inspires us to participate?"
Why are record numbers of Americans on food stamps? Because record numbers of Americans are in poverty. Why are people falling through the cracks? Because there are cracks to fall through. It is simply astonishing that in this rich nation more than 21 million Americans are still in need of full-time work, many of them running out of jobless benefits, while our financial class pockets record profits, spends lavishly on campaigns to secure a political order that serves its own interests, and demands that our political class push for further austerity. Meanwhile, roughly 46 million Americans live at or below the poverty line and, with the exception of Romania, no developed country has a higher percent of kids in poverty than we do. Yet a study by scholars at Northwestern University and Vanderbilt finds little support among the wealthiest Americans for policy reforms to reduce income inequality.