Judge Not

“The saddest part of his death is that he can’t die again.” “He was a monster.” “I hope he burns in Hell.” And just who was the target of these acrimonious obituaries? If you guessed Osama bin Laden you would be incorrect. Do you think these comments were aimed at Saddam Hussein? You would be wrong again. How about Kim Jong-Il? Once more, you would be mistaken. These comments I read on-line over the weekend were targeted at, of all things, a federal judge.

Associate Justice of the US Supreme Court Antonin Scalia passed away this February 13th. In addition to spawning conspiracy theories and speculation over who will replace him on the high court, his death ignited a firestorm that proceeded to immolate his character and burn his legacy in effigy. That seems a disproportionately harsh response for one of nine judges on the Supreme Court of the United States.

On a personal level, even “Nino’s” colleagues on the opposite side of the political spectrum respected him. He introduced Associate Justice Elena Kagan to his favorite past time: hunting. Justice Ruth Bader Ginsburg, a former attorney for the American Civil Liberties Union, called him a “treasured friend.” She could’ve stopped there. Instead, Justice Ginsburg went on to say, “We were best buddies.”

Why then did his passing unleash such vitriol from his critics? Justice Scalia took a “textualist” approach to interpreting the law. He approached the Constitution as an “originalist”; meaning that that judges should interpret it “as written”. He scorned the view of it as a “living document” that could be adapted to modern times and sensibilities. Based on this philosophy, Justice Scalia did not view the law as a means to advance socially progressive policies. This, apparently, made him a “monster.”

Benjamin Cardozo, himself an Associate Justice of the Supreme Court from1932 until 1938, took the opposite view of a judge’s role. I’m paraphrasing, but Justice Cardozo wrote that a judge should take into account the impact his decision would have on society. While I’m sure most people would agree with that, they should understand there’s a caveat. That’s a great approach to the law, but only IF WE AGREE WITH THE JUDGE’S RULING. I’m sure no one stripped of his/her home in an eminent domain case would agree that the court did the right thing in the interest of bettering society.

Ironically, while not known as a civil rights crusader, I always cite Justice Scalia’s dissenting opinion on the National Treasury Employees Union v. Von Raab case (1989) as one of the best commentaries on the subject ever written. For those unfamiliar with the case, it’s the one that led to mandatory work place drug testing in the US; the only major industrialized nation that engages in this practice. The dissent belongs in the same category of great American orations such as “The Gettysburg Address”.

There is irony in the Government’s citation, in support of its position, of Justice Brandeis’ statement in Olmstead v. United States,277 U. S. 438, 277 U. S. 485 (1928) that “[f]or good or for ill, [our Government] teaches the whole people by its example.” Brief for Respondent 36. Brandeis was there dissenting from the Court’s admission of evidence obtained through an unlawful Government wiretap. He was not praising the Government’s example of vigor and enthusiasm in combatting crime, but condemning its example that “the end justifies the means,” 277 U.S. at 277 U. S. 485. An even more apt quotation from that famous Brandeis dissent would have been the following:

“[I]t is . . . immaterial that the intrusion was in aid of law enforcement. Experience should teach us to be most on our guard to protect liberty when the Government’s purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning, but without understanding.”

Id. at 277 U. S. 479. Those who lose because of the lack of understanding that begot the present exercise in symbolism are not just the Customs Service employees, whose dignity is thus offended, but all of us — who suffer a coarsening of our national manners that ultimately give the Fourth Amendment its content, and who become subject to the administration of federal officials whose respect for our privacy can hardly be greater than the small respect they have been taught to have for their own.

(Retrieved from https://supreme.justia.com/cases/federal/us/489/656/case.html#679 3/21/15.)

A judge is not an elected official. (S)he is not accountable to an electorate or the American people. Political and social changes should emanate from the will of society carried out by elected representatives accountable to the people they serve. As Justice Scalia himself observed,

Persuade your fellow citizens it’s a good idea and pass a law. That’s what democracy is all about. It’s not about nine superannuated judges who have been there too long, imposing these demands on society.

            His critics could use his judicial career as evidence of just how right he was.


Burlington County (New Jersey) Murders and Executions 1832 – 1906

A love of violence plagues American society. Our kids watch rough sports like Football and Hockey. Then they play video games that make the Wild West look like something out of a Charlotte Bronte novel. Thinking about this made me long for the idyllic days where we didn’t have these vicious past times. I longed for a time in our recent past when parents and children could pack up a picnic basket. Together they could go on a family outing and watch the county hang somebody. This past mischief night at the Moorestown Library, local historian Marissa Bozarth allowed me to relive this halcyon era. She delivered a lecture on Burlington County (New Jersey) murders and executions that took place between 1832 and 1906.

Who would’ve thought people executed by the county could be so remarkable? On March 23, 1860 Philip Lynch met the hangman’s noose for the murder of George Coulter. Mr. Lynch’s behavior upon hearing the jury’s verdict was, well, not good. Following the pronouncement, he told the judge, prosecutor and sheriff that he would return from the grave to haunt them. (No evidence suggests that he ever did.)

While reassuring that Mr. Lynch believed in life after death, history would recall his reputation better had he followed the example of freed slave Eliza Freeman. In 1832, she earned the ignominious distinction of being the first person executed by Burlington County. When she murdered her husband, she showed no remorse. Her last words, however, displayed a much more respectable demeanor. She warned those who attended her execution against the dangers of alcohol. (Remember that. You’ll be reading about it again.) Then she prayed for her prison caretakers, all of the 3,000 – 5,000 people who attended her hanging as well as for her fellow African-Americans. Incidentally, the number of spectators fell well short of the 10,000 who watched Wesley Warner’s execution on 9/6/1894.

As only first degree murderers faced execution, Mr. Warner argued he committed second degree murder. Why did he murder Lizzie Peak? In essence, he claimed he didn’t kill her: his drunkenness did. The prosecutor convinced the jury that he “got drunk on purpose.” In an unusual occurrence for the 1890s, Warner appealed his sentence six times. They didn’t help. Fortunately, this didn’t drive him to drink.

Without comparison, I found Joel Clough the most intriguing person to meet the hangman’s noose in Burlington County. As difficult as this will be for readers to believe, he attended Ms. Freeman’s execution. Apparently, it impressed him so much that he decided to make the transition from audience member to participant. Following a tumultuous relationship with Mary Hamilton and an even harsher one with the bottle, Clough decided to permanently end his dealings with Ms. Hamilton on April 5, 1833. He returned a dagger she gave him as a gift by plunging it into her chest eight times. Following his arrest, he became the first person to ever escape from Mount Holly Prison. Cough didn’t excel at getting away from things. He unsuccessfully attempted suicide at one point, too.

During his trial, Clough tried to prove “temporary insanity” at the time of the murder. He even brought in experts on mental illness; something very unusual in the 1830s. In addition, he blamed his upbringing for leading him to kill. The jury didn’t agree. The county executed him on 7/26/33. For reasons that mystify me, he personally put on the hood and placed the rope around his neck.

The American spirit of innovation applied to some of these executions. Instead of having a door drop, the county used a 364 pound weight attached to a rope and cross beam on Philip Lynch. In 1907 the State of New Jersey took over the role of executing prisoners. In 1906, the county knew this would be its last time and decided to make it memorable. Deputies tied Rufus Johnson and George Small back-to-back and hanged them for the murder of Moorestown resident Florence Allinson.

In his play, Justice, John Galsworthy had a prison guard utter the prescient observation: “If it wasn’t for women and alcohol, this place would be empty.” The same observation could be made for many of the executions that took place in Burlington County between 1832 and 1906. The fascination with violence stood out more, though. The number of people who attended these executions in person boggles the mind. With that in mind, the voyeuristic violence in our society makes our era seem like the idyllic one.