Newt Gingrich won't be the last demagogue to lash out at the judiciary. And he certainly isn't the first. American politicians have a rich history of trying to score points with the masses by claiming that federal judges are a dangerous cadre that must be both feared and foiled. This was true when the federal government was held in relatively high esteem, and it is true now that the polls say our elected officials are viewed as beneath contempt by the vast majority of Americans.
So Gingrich's recent tirades against judges may be crazier than anything we've seen recently from a serious presidential contender. But they are no crazier than what state lawmakers in New Hampshire are doing to their judges or what Iowa voters already have done to their justices, at least the ones who voted in favor of the constitutionality of same-sex marriage. And, as stark as Gingrich's message is, as dangerous and as disrespectful, it isn't as ugly as some of the other political assaults federal judges have had to endure over the years.
Anne Emanuel's important new book, Elbert Parr Tuttle, Chief Jurist of the Civil Rights Revolution, reminds us that some legal conflicts are destined to come down to a judge and an angry mob. Tuttle was the Eisenhower appointee who, as the chief judge of the 5th U.S. Circuit Court of Appeals, consistently put into practice, in the Deep South, the Supreme Court's lofty promise of school desegregation. Emanuel tells his story well but it's clear that Judge Tuttle, for whom she clerked, was spared the brunt of the mob's fury.
For example, Emanuel takes us back to Nov. 23, 1960, a particularly ugly day in the annals of political attacks upon the judiciary. U.S. District Judge J. Skelly Wright was a Louisiana-born federal judge who oversaw the desegregation of public schools in New Orleans at great personal peril and cost. Here is what he had to deal with when he sought in his own backyard to implement the mandates of the two Brown v. Board of Education decisions. Of Nov. 23, Emanuel writes:
"[A]n extraordinary session of the Louisiana Legislature had been interrupted by a 'mourners' march' commemorating Nov. 14, 1960, when a handful of African-American children had first attended white public schools in New Orleans. The paraders carried a coffin in which lay a blackened doll dressed in judicial robes and labeled 'Smelly Wright.' Louisiana lawmakers gave the marchers a standing ovation."
There are plenty of similar grim examples in Emanuel's book -- and also in Jack Bass's older book on the subject, the title of which says it all: Unsung Heroes: The Dramatic Story of the Southern Judges of the Fifth Circuit Who Translated the Supreme Court's Brown Decision Into a Revolution for Equality. Heroes, indeed, to tens of millions of Americans, who needed federal judges to help them cast off the "pernicious effects" of de jure segregation. Villains, as well, to men like Gingrich, who want to relitigate the great civil rights cases.
Based upon his recent criticism of the Supreme Court's 1958 ruling in Cooper v. Aaron, in which the justices reminded Southern officials that they had to follow desegregation law, it's clear where Gingrich would have stood on Judges Wright and Tuttle. It's also clear where all of this is headed in 2012 -- two ribbons of fury, one aimed at California, where the 9th U.S. Circuit Court of Appeals will soon rule on same-sex marriage, and one toward Washington, where the justices will rule on huge health care, redistricting, and immigration cases.
What's remarkable about all of this furor is that the complaint comes from some leading conservatives at a time when the federal courts are arguably as conservative as they have been in 75 years. From the Supreme Court down, Republican appointees haven't wielded as much control on the bench since the Depression, when President Roosevelt and his gang railed against justices like Willis Van Devanter. The so-called Rehnquist Revolution has dramatically succeeded -- more so, you could further argue, than the Reagan Revolution.