6 / CHRONICLESnThe Reagan Court has been a sourcenof great expectation for conservatives.nIf only a few more superannuatednjustices would retire (or die), then wencould have the court’s unchecked authoritynin our own hands. A favoritentarget of pious hopes and voodoo dollsnis the apparently senile ThurgoodnMarshall. An example of tokenism atnits worst, Marshall has consistentlynopposed responsible self-governmentnin his eagerness to construct an Americannelite class of feminists and minoritynpoliticians. What little he understandsnof the Constitution only arousesnhis ire. Early in May he publiclynderided the Constitution’s bicentennialnand heaped scorn upon the bigotednframers who sacrificed “moral principlesnfor self-interest.”nMarshall is ingenuous enough tonadmit that the Founders would benappalled by his presence on the court.nThey would, but not nearly so muchnbecause of his color as for his manifestnincompetence and the resentment henhas displayed against their handiwork.nIf we were to daydream, what wouldnhappen if a plague struck all the “liberal”njustices? Exactly nothing. If we hadnany suspicion that Rehnquist, O’Connor,nand Scalia would exercise judicialnrestraint and respect the Constitutionaln(and common law) protection of individualnliberties, the recent decisionnagainst the Rotary should clear the air.nThe court unanimously upheld thenright of California to compel localnRotaries to admit women. Every timenthe court takes a “states rights” position,nit is inevitably to support a fashionablencause. Sure, it was a violationnof civil liberties (like the right of association),nbut civil rights are small potatoesnwhen the court sets out to decreenpolitical morality.nThe justices forget that they arenneither philosophers nor elected representatives;nthey are only lawyers paid toninterpret the legal traditions of thenU.S. Their personal ethical views arenof no interest or relevance for thenCULTURAL REVOLUTIONSnconduct of their office. But most judgesnseem possessed by a mania both tonphilosophize and to legislate.nAt issue is the court’s exercise ofnjudicial review. Of the Founding Fathers,nHamilton thought the SupremenCourt should be able to nullify onlynsuch laws as unquestionably violatednthe Constitution. Madison and Jeffersonnwere much more cautious. AndrewnJackson only stated the obviousnin declaring that “the opinion of thenJudges has no more authority overnCongress than the opinion of Congressnhas over the Judges.”nRoger Taney, Jackson’s Chief Justicenwho shared the President’s viewsnon the Constitution, has gone down innhistory as a great villain, because henrefused to legislate morality from thenbench. His decision on the case ofnrunaway slave Dred Scott may havenserved to legitimize an immoral institution;nit was, however, the only decisionna responsible and law-abidingncourt could have handed down. AsnLincoln argued in his First InauguralnAddress, “If the policy of the governmentnupon vital questions affecting thenwhole people is to be irrevocably fixednby the decisions of the Supreme Courtn. . . the people will have ceased to bentheir own rulers.”nIt is up to Congress and the statenlegislatures to amend the Constitution;nit is not up to the courts. Whether thenjudges are liberals or conservatives, it’snall the same. The courts’ overwhelmingnpower gives as much reason fornanxiety as a beautiful, vivacious wife:nYou would not entirely trust even yournbest friend or the bishop if they begannto show an interest. Why is it better tontrust, say, Paul Simon or Tim Wirthnover Thurgood Marshall? Two reasons;nfirst, that is the way the system wasndesigned to work; second—and reallynmore to the point—we are free to ridnourselves of the rascals on Capitol Hillnwhenever the electorate goes throughnone of its temporary fits of mentalnclarity, while nothing, not even brainnnndeath (in the cases of William O.nDouglas and Thurgood Marshall), cannhalt the mischief of the SupremenCourt.nDressed in a dark business suit, wearingna tie and a brand-new trenchcoat,nTroy Canty was led manacled in frontnof New York State Supreme CourtnJustice Stephen G. Crane. His headnclean-shaven, Canty looked sullenly atnTV cameras, out in force to registernthe latest twist in the Bernhard H.nGoetz ease.nOn December 22, 1984, dressednsomewhat differently, Troy Canty wasnriding the grafiiti-decorated New Yorknsubway, together with James Ramseur,nBarry Allen, and Darrell Cabey. “HeynTroy,” James Ramseur told his friend,nlying on the subway car bench, “why’snthat white guy looking at you?”nTurning towards the “white guy,”nBernhard Goetz, Troy Canty said,n”How are you?” Then he got up and,ntogether with Ramseur, Cabey, andnAllen, approached Goetz. “Give men$5.00,” he said.nTurning around so his four unwelcomennew acquaintances would notnsee what he was doing, BernhardnGoetz pulled a gun and shot each ofnthem once. Darrell Cabey he shotntwice, severing his spine and leavingnhim invalid.nThen Bernhard Goetz left the carnand walked away into one of the tunnels,nnot to be heard of until a weeknlater, when he went to the Concord,nNew Hampshire, police station andnconfessed what he did into a tapenrecorder. Asked whether he wanted anlawyer present, Goetz answered, “Andnwhat … a lawyer would do … is tontell me what not to say. . . . You getnoff on technicalities and that justnmakes me sick . . . you should benjudged … on the truth, and what isnright and wrong.”nUnlike career thug Danny Escobedo,nwhose murder conviction was re-n