Men in Black (2 page)

M
ark “F. Lee” Levin has headed up the “legal division” of Excellence in Broadcasting for years—and for good reason. He is simply the best at what he does. He specializes in an area that is particularly close to my heart: constitutional law. Mark has eaten, breathed, and slept the United States Constitution since he was in junior high school. He loves history, especially American history, and is passionate about this nation’s constitutional heritage. He and I share the belief that this is the greatest nation in the history of the world, not because of our geographical blessings, and not even because of our diversity. America’s greatness lies in the unique system of government established by the framers to maximize our individual liberties, which has ultimately led to our national strength and prosperity.

Mark tells me he was so fascinated with our constitutional history as a young boy that he used to visit the various historic sites in Philadelphia, where our government was born, and early on began studying our founding documents. Through the years, his love of this carefully crafted system of limited government has not diminished in the slightest, and he remains committed to doing his part to preserve it and the freedom it guarantees.

Mark doesn’t just talk the talk. He walks the walk. That’s why he serves as president of Landmark Legal Foundation, a superb public interest law firm dedicated to “leading the fight to preserve America’s founding principles.” Landmark is the leading conservative law firm litigating for school choice—and is the National Education Association’s most feared adversary. Landmark Legal serves as the conservative movement’s top legal watchdog against government expansion and abuse, including taking on the politically correct Environmental Protection Agency. Landmark has been in the thick of the ongoing battle against voting fraud and has taken on the Internal Revenue Service.

Mark served in the Reagan Justice Department under Attorney General Edwin Meese and has always been involved in the world of politics, mostly as a writer and pundit. Now he has his own very popular radio show on WABC in New York City, where he continues to champion the causes of limited government, the entrepreneurial spirit, and safeguarding America’s national security.

Given his strong belief in our constitutional system, which was designed to divide and diffuse governmental power between our federal and state governments and among the three branches of our federal government, Mark has been justifiably concerned over the years as these delicate balances have been eroded. He rightly sees an unaccountable, activist federal judiciary as the primary culprit.

Every honest observer of the political scene knows that since the 1960s, the judicial branch, led by the United States Supreme Court, has accelerated its already well-honed pattern of usurping the authority of the elected branches of government. Constitutionalists like Mark (and me) believe that the judiciary should stay out of politics and policy matters. Federal judges, and especially Supreme Court justices, all of whom are unelected and unaccountable to the people, have rejected their constitutional role. They increasingly legislate from the bench and rewrite the Constitution at will.

Liberal apologists for this kind of judicial tyranny glibly protest that but for the activist Supreme Court we would still be living in the dark ages on issues from slavery to civil rights. But it was the Court that upheld slavery and segregation, setting back race relations in America for more than a century. Every time the Court arrogates power that was properly left to the other branches, it chips away at our constitutional foundation. Every time the federal courts issue rulings over internal matters of the several states, they do lasting damage to our system of federalism—and thus to the rule of law and to our liberties. Besides, judicial activists have a very poor record. They are the ones responsible for upholding such detestable and unconstitutional practices as slavery and segregation. When a small group of men and women donning black robes makes decisions beyond its authority, it is disenfranchising the will of the people, which is properly exercised through the people’s duly elected representatives.

This trend must be reversed before it’s too late. That’s why Mark has written this incredible book: to set out in layman’s terms the current state of our runaway judiciary and the threat it poses to our nation. Mark takes us through all of today’s hot-button issues and the way they are being shaped by the Supreme Court. In each chapter, he gives us the history of the constitutional development of these issues so that we understand exactly where we are compared with where we started and where we ought to be.

This book couldn’t be more timely or important, as liberals continue shamelessly to thwart the people, Congress, the president, and state governments. Increasingly, liberals are also denying the president his judicial appointment power by blocking his well-qualified appointments purely for political reasons. While the informed public—informed primarily thanks to conservative talk radio—understands many of the issues involved in this book, Mark Levin’s
Men in Black
provides an indispensable historical and constitutional context. And it offers suggested solutions to remedy the serious problems we face. Let me tell you, folks, this is a subject in need of our urgent attention. And this book provides the ammunition you need to defend your liberty.

I am proud to endorse this book by a constitutional scholar, a brilliant lawyer, a pundit extraordinaire, an exceptional radio talk show host, a patriot, and my very good friend. I hope it sells a million and that twice that many read, absorb, and take to heart its critical message.

T
he biggest myth about judges is that they’re somehow imbued with greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties. Some have been brilliant, principled, and moral. Others have been mentally impaired, venal, and even racist.

Barely one hundred justices have served on the United States Supreme Court. They’re unelected, they’re virtually unaccountable, they’re largely unknown to most Americans, and they serve for life. They work in a cloistered setting hidden from public view. Yet in many ways the justices are more powerful than members of Congress and the president.

The Supreme Court today is involved in nearly every aspect of modern life, regularly vetoing the decisions of elected federal and state authorities. As few as five justices can and do dictate economic, cultural, criminal, and security policy for the entire nation. So who are these justices? Well, it’s impossible to generalize. But here are some of the more stunning personalities who have served on the Supreme Court:

James Wilson

Wilson was appointed by George Washington in 1789. He had been one of the more influential delegates at the Constitutional Convention, but had serious financial troubles after he was appointed to the Court. He put his money into land speculation, fell into serious debt, and was put in debtor’s prison. He once had his son pay off a creditor so that he—an associate justice of the Supreme Court—could be sprung from jail in Burlington County, New Jersey. Hounded by creditors, Wilson later left his native Pennsylvania and had to live a life on the run. After “holing up in a series of ‘dreary taverns,’” he died broke in North Carolina and was buried in an unmarked grave.
¹

John Rutledge

Rutledge, too, was appointed by Washington in 1795—by recess appointment—and became the nation’s second chief justice. A United States senator from Rutledge’s native South Carolina wrote that “after the death of his wife, his mind was frequently so much deranged, as to be in a great measure deprived of his senses.”
²
There was considerable opposition to Rutledge’s appointment, and he was voted down by the Senate. There had been rumors that his “mind was unsettled” and “he was becoming insane.”
³
Rutledge’s depression was so serious that he made two failed suicide attempts, one shortly before and one soon after the Senate rejected his nomination.
⁴

Henry Brockholst Livingston

Appointed by Thomas Jefferson in 1806, Livingston had killed a man in a duel before his appointment to the Court.
⁵

Henry Baldwin

Baldwin was appointed by Andrew Jackson in 1830. In 1832, it was reported that he:

Robert C. Grier

Appointed by James Polk in 1846, Grier suffered paralysis in 1867 and thereafter began a slow mental decline. Grier’s case is most troubling because he was the swing vote in one of the more important cases of his era,
Hepburn v. Griswold
, which struck down the law allowing the federal government to print paper money. “Grier’s demonstration of mental incapacity during the conference discussion was such that every one of his colleagues acknowledged that action had to be taken.”
⁷

Nathan Clifford

Clifford was appointed by James Buchanan in 1858. After a period of mental decline, Clifford suffered a stroke in 1880 just before the beginning of the October term of 1880. “Justice Miller described the situation bluntly: ‘Judge Clifford reached Washington on the 8th [of] October a babbling idiot. I saw him within three hours after his arrival, and he did not know me or any thing, and though his tongue framed words there was no sense in them.’”
⁸
Clifford kept his seat until his death in July 1881.

Stephen J. Field

Field, appointed by Lincoln in 1863, was one of the longest-serving justices. As Chief Justice William Rehnquist has written, at the end of Field’s service, he “became increasingly lame and often seemed lethargic to his colleagues. During the winter of 1896–97 his condition worsened, and his questions in the courtroom indicated that he had no idea of the issues being presented by counsel.”
⁹

Joseph McKenna

McKenna was appointed by William McKinley in 1897, and his mental faculties began to decline as he approached his eighties. After Chief Justice William Taft failed to convince McKenna that it was time to retire, Taft called a meeting of the other justices at his home. They decided they could not allow McKenna to cast the deciding vote in the Court’s decisions. From then on they agreed that if there was a split vote among them, they would change their votes and not allow the case to go forward. The Court did hold a few cases over until McKenna finally agreed to retire in 1924.
¹⁰

James C. McReynolds

McReynolds, appointed by Woodrow Wilson in 1914, was a notorious anti-Semite. He said he didn’t want the Court “plagued with another Jew.”
¹¹
There is no official photograph for the Court for 1924 because McReynolds refused to stand next to Justice Lewis Brandeis, the Court’s first Jewish justice. He would leave the room whenever Brandeis would speak in conference.
¹²
He was also openly hostile toward the second Jewish justice, Benjamin Cardozo. “He often held a brief or record in front of his face when Cardozo delivered an opinion from the bench on opinion day.”
¹³

A McReynolds law clerk, John Knox, also wrote that the justice disapproved of the fact that Knox had been polite to McReynolds’s African American servants, Harry and Mary. McReynolds told him:

Hugo Black

Black, appointed by FDR in 1937, had been a member of the Ku Klux Klan in Alabama.
¹⁵
He stayed on the Court longer than he should have. In 1969, he suffered a stroke, “resulting in a partial loss of memory.”
¹⁶
His health troubles became worse. “In late March 1971, he started having acute pain in his left ear and a chronic headache over his eye and in the back of his head. Aspirin did not help. He found it more difficult to concentrate. His short-term memory was waning. He would latch onto some event of long ago and reminisce. In conference he began to stumble badly, becoming tired and confused, and unable to remember which case was being discussed.”
¹⁷

Black’s mental decline seemed to lead to paranoia in the months before his resignation and death. “Black was paranoid about the future, expressing fears of governmental collapse; Nixon was preparing a military coup, he said. ‘Anything can happen here. We have small groups fragmenting the government. There may not be a 1972 election—a dictator might take over.’”
¹⁸

Felix Frankfurter

Frankfurter was appointed by Franklin Roosevelt in 1939. He helped launch the career of the notorious spy Alger Hiss. Frankfurter had been a prominent professor at Harvard Law School. Before joining the Court, he had great influence in getting his law students prestigious clerkships for Supreme Court justices. A notable clerk he obtained for Justice Oliver Wendell Holmes was a student named Alger Hiss. At Frankfurter’s urging, Hiss began a public service career that included service as a delegate to the Yalta Conference, where FDR, Churchill, and Stalin set the boundaries of postwar Europe. Hiss would later be named by Whittaker Chambers as a spy for the Soviet Union. He was tried for perjury, and Frankfurter, in an unprecedented move for a sitting Supreme Court justice, served as a character witness for Hiss at the trial, as did Associate Justice Stanley Reed, another FDR appointee.
¹⁹
Although Frankfurter obviously would not have known of Hiss’s eventual ties to the Soviet Union as a Communist spy, he knew of the specific charges when he decided to lend the prestige of his high position to Hiss’s defense.

In
Brown v. Board of Education
, Frankfurter behaved in a manner that most legal ethicists would consider extremely troubling. He collaborated with a former clerk, Philip Elman, who was serving in the solicitor general’s office in the Executive Branch. (That’s the office that represents the administration’s position before the Court.) Frankfurter passed confidential information on to Elman about the positions of his fellow justices in
Brown
, and advised him on arguments the government should make to sway the Court.
²⁰

William O. Douglas

FDR appointed Douglas in 1939. In a particularly bizarre episode, Douglas met a flight attendant on a plane and invited her to visit him at the Court, where he allegedly physically assaulted her.

Douglas’s marriages to young women and his subsequent divorces created financial hardship for him, so he sought income to supplement his Court salary. One significant source of income while he was on the bench came from a questionable source:

In his last year on the Court, Douglas also suffered, at times, from delusion: “A 1974 stroke incapacitated William O. Douglas at the age of 76 for 2 ½ months, though he told the press he had been hurt in a fall. Afterwards, he slurred his words, couldn’t walk, developed fears that people were trying to kill him, thought he was chief justice and spurned pleas that he quit.”
²³
Things were so bad that the justices themselves took action: “His refusal to step down despite obvious mental and physical problems led colleagues to decide secretly to stop counting his vote in some cases, until he finally quit at the insistence of his wife and friends,”
²⁴
some ten months after the stroke.

Charles Whittaker

Whittaker, appointed by Eisenhower in 1957, was said to be vacillating and indecisive. The pressures of the Court led him to a nervous breakdown and retirement after five years of service.
²⁵

Abe Fortas

LBJ appointed Fortas to the Court in 1965. He continued to act as an advisor to Johnson while on the Court. He supplemented his Court salary ($39,500 at the time) by taking money from a foundation set up by a convicted “stock swindler.” Fortas “resigned from the Supreme Court after it was revealed that while on the bench he had pocketed a $20,000 retainer from the foundation of jailed financier Louis Wolfson.”
²⁶