BETTER RED THAN DEAD

Congratulations to DOM, Peter Sauter and Juan Gonzalez as they all won a one week pass in the Survivor Pool. Well done gentlemen.

Tuesday is the investiture of Justice Robert Luck in Tallahassee. How long lived that appointment will be remains to be seen. The Eleventh in Atlanta beckons. 

Coming this Friday- the investiture of Judge Robert Watson at 73 West Flagler, 12:15 PM, courtroom 6-1. 

And now, a Constitutional Calendar authored by the indefatiguable Judge Hirsch, with special resonance for our troubled times: 

On September 25, 1950, Justice Robert Jackson, sitting as circuit justice for the Second Circuit, rendered his opinion in Williamson v. United States.  The issue was whether certain leaders of the Communist party, having been convicted of conspiring to advocate and teach the violent overthrow of the United States government, were entitled to a continuance of their bail pending the adjudication of their petition for certiorari to the United States Supreme Court.

In his opinion, Justice Jackson began by discussing the law of bail, and the propriety of consideration of future misconduct by a bail applicant.  He wrote about the protections of the First Amendment, particularly as applied to the defendants before him.  (“[T]he very essence of constitutional freedom of press and speech is to allow more liberty than the good citizen will take.  The test of its vitality is whether we will suffer and protect much that we think false, mischievous and bad, both in taste and intent.”)

But perhaps what is most noteworthy, and most instructive in our own times, is the language with which Justice Jackson concluded his opinion:

If, however, I were to be wrong on all of these abstract or theoretical matters of principle, there is a very practical aspect of this application which must not be overlooked or underestimated – that is the disastrous effect on the reputation of American justice if I should now send these men to jail and the full Court later decide that their conviction is invalid. All experience with litigation teaches that existence of a substantial question about a conviction implies a more than negligible risk of reversal.  Indeed this experience lies back of our rule permitting, and practice of allowing, bail where such questions exist, to avoid the hazard of unjustifiably imprisoning persons with consequent reproach to our system of justice.  If that is prudent judicial practice in the ordinary case, how much more important to avoid every chance of handing to the Communist world such an ideological weapon as it would have if this country should imprison this handful of Communist leaders on a conviction that our own highest Court would confess to be illegal. ... [T]he worst they can accomplish in the short time it will take to end the litigation is preferable to the possibility of national embarrassment from a celebrated case of unjustified imprisonment of Communist leaders.  Under no circumstances must we permit their symbolization of an evil force in the world to be hallowed and glorified by any semblance of martyrdom.

Coming next: Everything you need to know about Prorogue and why we know much more about it than you or anyone else you know.