Supreme Question: What Would Warren Do?

Commentator Jim Newton says that for the Supreme Court this session, the most urgent issue it will face this session is freedom during wartime. Jim Newton is the author of the book Justice for All: Earl Warren and the Nation He Made.

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ROBERT SIEGEL, host:

The Supreme Court has been back in session for a week. And today the Justices heard a case about the kinds of mistakes that can be made in criminal prosecutions, mistakes that might overturn a conviction. They also declined to hear the case of three small tobacco companies trying to get out of making payments to states. These kinds of issues, about criminal law and tobacco suits, are familiar. The Supreme Court has addressed them before.

Commentator Jim Newton says that for this Court, the most urgent issue it will face this session is freedom during wartime.

JIM NEWTON: The Justices concluded their session last year by rejecting the military tribunal system at Guantanamo. The future will bring many more opportunities for them to consider the safe reach of civil liberties.

In today's divisive American politics, the values of national security and personal liberty are often considered to be opposing principles, that the nation must sometimes be less free in order to be more safe, or that it embraces freedom at its peril.

That is a false choice. In fact, civil liberties are not the province of liberals anymore than they are of conservatives, and they are the basis of a secure country, not a threat to it.

Consider the Supreme Court under the leadership of Republican Earl Warren. Throughout much of the 1950s and ‘60s, this country lived under the menace of nuclear annihilation. And yet, through the Cuban missile crisis and the launching of Sputnik, the Six Day War and America's deepening involvement in Vietnam, the Court expanded the range and meaning of American freedom. It curbed the right of legislatures to engage in communist witch hunts. It protected the ability of newspapers to confront public officials. It gave criminal defendants access to lawyers. It require police to inform suspects of the rights given them by the Constitution. And it established a right of privacy that protected individuals against government intrusion.

Those landmark achievements in American liberty did not compromise the nation's safety, nor subvert its efforts in the Cold War. In fact, they bolstered national security. Through the determined campaign to advance personal liberty, this nation established a counterpoint to communism and set an example of freedom for the world.

America won the Cold War because of our liberty, not in spite of it.

Once bitterly opposed, the civil rights established by the Warren Court have to a remarkable degree become subtle facts of our society today. What thoughtful person, liberal or conservative, now proposes that Congress hold public hearings to root out subversives? Who among us believes that justice has suffered because poor defendants receive free lawyers from the government? Even the right of privacy, embroiled as it is in the debate over abortion, is at its core hardly a liberal principle. What could be more fundamental to conservative values than the idea that an individual enjoys a zone of protection from an intrusive government?

The Warren Court, under its Republican chief justice, was activist, yes. But the rights it protected and expanded were basic to American life then and now. And those rights were secured not at the expense of security, but in defense of it.

SIEGEL: Jim Newton is the author of the book Justice for All: Earl Warren and the Nation He Made.

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