Dispatch December 2009

A Decade of Defiance

From Katherine Harris to Sandra Day O'Connor to the attorneys in the Bush Justice Department, the major players in American law have demonstrated unrepentant stubbornness.
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Let us give the last word about the gloriously diverse past decade of American law to an unlikely mouthpiece: Lazaro Gonzales, Elian’s effervescent uncle, who came into our lives nearly 10 years ago, at the start of the 21st Century. Told that Janet Reno’s federal agents were on their way to his town outside Miami to seize young Elian, Lazaro famously said he wouldn’t hand over the kid. “Not in Opa Locka, not in any locka,” Lazaro declared, in Spanish no less, in an epic comment that was as funny as it was serious.

Not in Opa Locka, not in any locka. From one legal story after another, unrepentant defiance was the order of the decade on the American legal scene. The Oklahoma City bomber, Timothy McVeigh, eyes open until the end, defiantly stared up at the closed circuit camera filming his execution in Terre Haute, Indiana. The hapless Attorney General Alberto Gonzales defiantly dumbed himself down (no small feat) so he wouldn’t have to answer questions about the U.S. Attorney scandal before the Senate Judiciary Committee. And the zany Zacarias Moussaoui defiantly begged his federal jury in Virginia to sentence him to death for whatever negligible role he may have played in 9/11 training for Al Qaeda.

Shortly after Lazaro’s memorable taunt, the feds did come and seize Elian out of Opa Locka, and by the end of June 2000 he was back home in Cuba with his father. A few months after that, the equally memorable Florida Secretary of State, Katherine Harris, a Palin precursor, stoked a conflagration of historic proportions we now call “The Recount.” Combining lofty legal principles with gutter politics, it was as raucous a legal story as has ever transpired in the history of American law culminating in one of the least defensible Supreme Court ruling of this or any other age. Not in Opa Locka, not in any locka will votes be anymore counted in Florida, Court conservatives declared, handing the election to George W. Bush.

The events of the five weeks from Election Day until December 12, 2000, forever changed the way the law is measured and perceived in America. It was an event that politicized the law even more than the nasty Clinton impeachment story that had shortly preceded it. Indeed, one of the legacies of Bush v. Gore is that it generated in its wake sharp disputes – among the brave and vocal soldiers fighting their eternal battle for the soul of American governance – over the meaning of phrases like the malleable “rule of law” or the disingenuous “judicial activism.”

These arguments roiled all through the years and especially in the wake of the terror attacks of September 11, 2001. Just days after the Twin Towers fell, the Bush Administration began to claim and exert enormous presidential power to fight the legal war on terrorism. Initially, the tribunes of the White House and the Justice Department and the Pentagon received great deference from federal judges, anxious to play their own part in combating Al Qaeda. But like Icarus, Team Bush aimed too high, too far, too fast and, by June 2004, less than three years after 9/11, the tide had turned. The architects and subcontractors of the alarming “unitary executive theory”—men like Dick Cheney and Jay Bybee and Steven Bradbury and David Addington—simply couldn’t bully their way past Lady Justice herself, Sandra Day O’Connor.

Not in Opa Locka, not in any locka” will a U.S. citizen be deprived of the right to a hearing before a neutral judge, O’Connor declared in Hamdi v. Rumsfeld, the first of four Supreme Court rulings checking presidential power under the Bush regime. O’Connor’s money-phrase—that “war is not a blank check” for sweeping presidential powers—echoes even today in the political debate over the war in Afghanistan. Shortly after she made it, we learned about the “torture memos,” Abu Ghraib, and water-boarding. Indeed, you can trace a direct line from the government’s defiant stand toward military tribunals at Guantanamo Bay, Cuba (depriving detainees of basic rights) to the controversial decision by the Obama Administration to prosecute Khalid Sheikh Mohammed and others in New York City.

There was great zealous defiance, too, on the part of both proponents and opponents of same-sex marriage, a legal and political story that overshadowed during the past 10 years even the eternal debate over abortion. Same-sex marriage supporters found comfort in their gains in Massachusetts, Maine, Vermont, Iowa, Connecticut and New Hampshire. Foes of the same-sex marriage found comfort in popular votes in California and in legislative votes in New York. Not in Opa Locka, not in any locka will gays and lesbians be allowed to marry, the opponents bellowed, even as the culture-war issue began to wend its way through the federal courts.

By decade’s end, the politicization of the law had degenerated even further into litigation – litigation! – over whether Barack Obama is really a secret Kenyan. The “birthers” are saying “not in Opa Locka, not in any locka” will they accept a black man as President of the United States, are they not? The counter-productivity of this trend is best represented now by the rise of “judicial elections” whereby state-court judges are forced to act like greasy politicians in the pursuit of office. Willing to whore out yourself and your judicial neutrality for a black robe, a steady income, and a spot on the bench? C’mon down; the Heck with the Bill of Rights and its protections against the tyranny of the majority.

Polls show that this majority is in favor of capital punishment. But it was not a good decade for supporters of the death penalty. In two close cases, the Supreme Court outlawed the execution of mentally retarded capital defendants and juvenile offenders who killed before the age of 18. Several states simply did away with the death penalty and even those states that continue to churn out executions were forced to pause a bit mid-decade to ensure compliance with the boundaries of the “cruel and unusual punishment” clause of the 8th Amendment. Meanwhile, a Texas jury spared the life of Andrea Yates, a mentally ill mother who drowned all five of her children in a bathtub near Houston, but condemned her to a life in prison toggling back and forth between sanity and insanity as she contemplated what she had done.

The increased and now widely accepted use of DNA testing to incriminate or exonerate was probably the most significant legal development of the decade. But you wouldn’t know that if you watched only television news. Tens of thousands of hours of precious airtime were devoted instead to the small beer of tabloid stories involving people as diverse as Martha Stewart and Amber Frey. Robert Blake skated and so did Michael Jackson (for a few years anyway), but O.J. Simpson, who defiantly shirked his financial responsibilities to the Goldman and Brown families, finally paid a measure for his sins when he was railroaded in a faux burglary case in Nevada. And through it all, as posse, prosecutor and judge, Nancy Grace shouted not in Opa Locka, not in any locka were the suspects of the day innocent. She defiantly repeated the charge over and over again, in louder and louder tones, until she became a star.

Andrew Cohen is a legal analyst.
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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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