October 9, 2000 | The Nation

SPIES, DAMN SPIES & STATISTICS

Pleasantville, N.Y.

Ellen Schrecker and Maurice Isserman ["The Right's Cold War Revision,"
July 24/31] state that Judge Irving Kaufman's sentencing speech blaming
the Rosenbergs for causing the Korean War (by giving the Russians the
A-bomb years before they would otherwise have had it) contained "a
kernel of truth." At a meeting in Moscow in April 1950 with Kim Il Sung,
Stalin explained that he was acquiescing in the invasion of South Korea
primarily for two reasons: the recent victory of the Chinese Communists
in their civil war and the new US policy of nonintervention on the Asian
mainland. Possession of the A-bomb was last on Stalin's list,
understandably because Russia then had only one or two bombs and no
delivery system. As for David Greenglass, the Los Alamos machinist
recruited for espionage by his brother-in-law, Julius Rosenberg, Soviet
archives confirm that he was strictly an also-ran on the roster of
atomic spies. Kaufman's sentencing speech survives as one of the most
vicious ideological documents of the domestic cold war. Does Schrecker
and Isserman's "kernel" of support for it also extend to President
Eisenhower's charge that "by immeasurably increasing the chances of
atomic war, the Rosenbergs may have condemned to death tens of millions
of innocent people all over the world"?

WALTER SCHNEIR

Atlanta; Kensington, Md.

We are gratified that Maurice Isserman and Ellen Schrecker think that
our arguments about Communist espionage "must be taken seriously." And
we thank them for their generally civil tone. But while accepting the
CPUSA's role in espionage, they still flinch from the implications. They
insist that with espionage "context counts." Pointing out that the
United States and the USSR were allies during WWII, they ask why
historians have not pursued Britain's spies in Washington in that era.
"If we were to learn their identities," they ask, "would we excoriate
them as much as we do the folks who leaked information to our other
wartime ally, in the Kremlin?" Although there is no evidence of these
British spies, do they really mean to suggest that spying on behalf of
Churchill (unethical and illegal as it would have been) is the
equivalent of doing so on behalf of Stalin? Surely context counts here
as well. And as for depicting espionage as only "leak[ing] information
to...our wartime ally," a number of those engaged in espionage were
cooperating with Soviet intelligence in the thirties, before we were
allies, while others continued to do so after the cold war began and
when we were adversaries.

Schrecker and Isserman suggest that in 1943 there were no "crystal-clear
vistas, in which all the actors knew then what we now know--about
Stalin, about the Soviet Union." There was, in fact, plenty of evidence.
After Stalin's terror, the Moscow Trials and the Nazi-Soviet Pact, most
observers did not have to wait until Khrushchev's 1956 speech to notice
the monstrous crimes of the Stalin regime. For good reasons, the United
States was allied with the USSR to defeat Germany, but that did not make
the Soviet Union the moral equivalent of a democracy.

We agree with Schrecker and Isserman, and have written, that the entire
history of the CPUSA should not be reduced to a criminal conspiracy. But
whatever else it was, the CPUSA was, as an organization, intimately
involved in espionage against the United States and cooperated with
Soviet intelligence. In her recent book on McCarthyism, Schrecker noted
that "as communists these people did not subscribe to traditional forms
of patriotism; they were internationalists whose political allegiances
transcended national boundaries." Don't Schrecker and Isserman agree
that such a view of national loyalty provides an excellent rationale for
the government effort to exclude Communists from sensitive positions? An
extended discussion can be found on the web at: www.johnearlhaynes.org/page47.html.

HARVEY KLEHR
JOHN EARL HAYNES

SCHRECKER AND ISSERMAN REPLY

New York City; Clinton, N.Y.

In our article, we suggested that the successful Soviet detonation of a
nuclear device in August 1949, "along with the Communist victory in
China a...month later...nudged Kim Il Sung a fatal step or two closer to
his long-contemplated decision to invade South Korea" the following
summer. Walter Schneir apparently believes we have capitulated to cold
war hysteria in making this argument. Our source, however, is the
decidedly unhysterical historian Bruce Cumings, who argues in his
authoritative Origins of the Korean War that the Soviet nuclear
test "rumbled through the communist world, having especially significant
effect in Korea where, combined with the Chinese victory, it emboldened
the leadership."

We also suggested that discussions about Soviet espionage in World War
II would benefit from some "intellectual fine shading." Rather than view
spies as "moral monsters," we might want to pay more attention to
historical context in order to understand their motivation. "Context
counts," we suggested. But Harvey Klehr and John Haynes are not
impressed by our hypothetical counterexample of Americans spying on
behalf of Churchill in World War II. Consider then a more recent and
unhypothetical example. The New York Times reported on September
2 that Hillary Clinton had quietly intervened to keep Jonathan Pollard
from being transferred to a harsher federal prison. Pollard is currently
serving a life sentence stemming from his 1986 conviction for spying on
behalf of Israel. According to the Times, Pollard's supporters
(who are identified by the reporter as consisting mostly of "Jews on the
right"), feel he deserves clemency because he "simply passed along
information to an ally that was already receiving United States
intelligence through official channels." Here is an argument, from the
right, that "context counts."

Haynes and Klehr correctly point out that Soviet espionage efforts
predated the wartime alliance of the United States and the Soviet Union.
However, in the thirties Washington was chiefly of interest to Soviet
agents as a kind of "listening post" from which information could be
gleaned about places of more interest to the Kremlin, like Berlin. Allen
Weinstein and Alexander Vassiliev argue persuasively in their recent
book, The Haunted Wood: Soviet Espionage in America, that what
the men and women drawn into the Soviet espionage network in the United
States in the 1930s shared in common was a "romantic antifascism." Those
sentiments were only reinforced during World War II when the Red Army
was carrying the brunt of the war against the Wehrmacht, and even
Life magazine would compare the NKVD (the principal Soviet
espionage agency) favorably to the FBI. Does any of this justify spying
on behalf of the Soviet Union? No. Does it help explain it? We think it
does.

Finally, Klehr and Haynes wonder if we agree that Communists should have
been excluded from "sensitive positions" in the government during World
War II, given what we now know about the participation of many of them
in Soviet espionage efforts. Perhaps, although it's not a simple
question. If J. Robert Oppenheimer (whose brother, girlfriend and wife
were all Communists, and who was certainly close to the party himself)
had not filled the supersensitive position of director of the Manhattan
Project, it is quite possible that the United States would not have
developed an atomic bomb as soon as it did.

We do not believe, however, that firing kindergarten teachers,
biologists, librarians, screenwriters and longshoremen for their
Communist sympathies did anything to strengthen US national security in
the postwar years. We trust that Klehr and Haynes agree with us on that
point, although all too many cold war liberals in the fifties did
not.

ELLEN SCHRECKER
MAURICE ISSERMAN

THE CIA'S SCHOLARLY ADVENTURES

Boston

Readers of Michael P. Rogin's review of Frances Stonor Saunders' The
Cultural Cold War ["When the CIA Was the NEA," June 12] might be
interested in another dimension of the Congress for Cultural Freedom's
activities seldom cited--the CCF's efforts throughout the fifties to
influence Third World politics and its interpretation in the United
States. The long-term impact of such efforts was less on Third World
intellectuals than on US academia--notably in the field of modernization
and development studies--and the media, where the political thrust of
the CIA-backed CCF shaped the approach to Third World regimes.

IRENE L. GENDZIER

Providence, R.I.

The CCF mobilized support for its objectives in conferences designed to
attract Third World intellectuals. They met in Italy, India, Burma,
Japan, Nigeria, on the isle of Rhodes, to listen to anti-Communist
luminaries--including James Burnham and Edward Shils--denounce radical
change and the alleged economism of Asian and African leaders. Committed
to undermining the impact of anti-imperialist struggles, CCF organizers
brought their message home, shaping the parameters of modernization and
development studies that spread across US campuses. They provided
legitimation for US policy in Latin America, Africa, the Middle East and
Southeast Asia in the sixties, seventies and eighties. The approach is
anything but dead. Additional information can be found in my study
Development Against Democracy.

PAUL BUHLE

New York City

The CIA's game continued well past CCF's public exposure. Changing its
name to the International Association for Cultural Freedom, it went on
with less fanfare until 1979. We know about only a small fraction of the
thousand (or more) volumes secretly funded and passed off as
disinterested scholarship; a vigorous discussion has recently begun in
the Organization of American Historians to uncover more evidence.
Saunders pinpoints postrevelation meetings of hardened loyalists in
London and Paris, including Raymond Aron, Daniel Bell, Edward Shils,
Arthur Schlesinger Jr. and Ignazio Silone, in which the reorganization
presumably took shape. (Sorry, Christopher Hitchens ["Minority Report,"
June 12], the Italian writer-critic's previous past was indeed far
better than Alex Cockburn paints it ["Beat the Devil," June 5], but like
Encounter, Silone's Tempo Presente was a CIA outlet.)

JOHN L. HESS

London

In Europe this September protest went populist with a vengeance. The truckers and farmers clogging roads and blockading fuel depots across the continent to protest petrol prices were no rainbow brigade of the disaffected but solid citoyens: middle-aged men with mortgages and beer bellies, deck chairs and thermos flasks. Their avatar, if they have one, is Monsieur Poujade, the conservative French bookseller who led a tax revolt of shopkeepers in the fifties and came to represent the political muscle of capitalism's squeezed middlemen. Leaderless, decentralized, linked by Internet and mobile phone, they have borrowed their tactics from the environmental and anticorporate movements of the past few years; so far, their impact has been much more dramatic. In France, where it all began, they quickly secured the promise of a 15 percent cut in fuel duty from Prime Minister Lionel Jospin. In Britain they took government and media by surprise, threatened to paralyze the economy and the health service, and pushed the Labour Party down below the Tories in the polls for the first time since 1992.

This strange solidarity of the self-employed produced a rash of political paradoxes. Tabloids that have denounced every demonstration since Cromwell discovered the exhilaration of direct action ("Protest," said the Daily Mail, "is the lifeblood of democracy"). While Margaret Thatcher once demonized striking miners as the enemy within, her young ward William Hague hailed the truckers who stalled the country as "fine, upstanding citizens." And Prime Minister Tony Blair found that strikebusting laws passed by the Iron Lady and gratefully kept on the books were useless in this case, because the men picketing the oil refineries were not unionized. Mechanisms devised to control dissent as the old, industrial Britain was being dismantled are of limited use in the new world of virtual networks and unstable work. The oil refinery pickets numbered less than 2,500 across the country, and at some depots looked more like picnickers than protesters. They were able to bring the system to a halt in part because the tanker drivers who were meant to defy them are themselves contract workers with no fixed loyalties.

Of course, if the oil companies had wanted to break the protest, they would have found a way to do it before you could say Texaco. (Imagine if it had been Greenpeace or striking refinery workers at their gates.) Truckers demanding fuel tax cuts are allies, not enemies, of the oilmen, to whom less tax means more sales and a bigger margin for profits. In fact, the price of fuel has risen by 50 percent over the past eighteen months because the oil-producing countries have pushed up the price of crude; oil company profits have doubled. But though the "Dump the Pump" campaign began in Britain as a movement to boycott BP, it quickly veered right and turned its sights on the government, which claims 76 pence in duty and tax--the highest in Europe--on every pound spent on petrol. (In the States the car lobby won this battle before it was even joined: Americans pay 23 cents on the dollar in tax.) The truckers' crusade is partly an explosion of resentment by middle England against a government that wooed it, promised it the Earth--and now sits smugly in Westminster listening to focus groups and spouting homilies instead of making real improvements in the services everybody uses.

For Tony Blair the fuel crisis was truly the stuff of nightmare, calling up ghoulish memories of 1978's winter of discontent, when industrial action filled city streets with garbage and morgues (they say) with the unburied dead, ushering in the reign of Margaret Thatcher. For one ghastly week, New Labour's chief control freak watched helplessly as the country slid toward chaos and public sympathy flooded to the instigators. The tabloids he had courted cheered on the protesters; the corporate leaders he had buttered up smiled sweetly and averred there was nothing they could do. The mirage of Third Way consensus went up in a puff of diesel. Only Labour's traditional stalwarts, the trade union leaders, came through, helping to negotiate an end to the protest. Perhaps there's a lesson here.

The high tax on fuel (put in place initially by the Conservatives) serves a dual purpose: to raise revenue and to protect the environment. Indirect taxes are rarely progressive; this one falls disproportionately on the rural poor. Contrary to the impression fostered by the government's supporters, not all the fuel protesters are selfish, gas-guzzling throwbacks greedy for a bigger TV. If New Labour could stop pretending that the new Jerusalem can be built without taxing the rich; if it could stop thinking of the environment as an issue for sissies and make the green case for petrol tax (there is a golden opportunity in November's international climate change forum in the Hague); if it could even put real money into public transport and renewable energy, some good might come of this bizarre political moment. Otherwise, a warning has been served. Societies dependent on one privately hoarded commodity are vulnerable to all kinds of blackmail, and the new politics of protest is no longer the exclusive province of the anticorporate left.

The advertising industry has come up with a revolutionary, breakthrough, twice-as-bright-as-before proposal: Maximize profits by cutting the earnings of actors. And so, almost five months ago the 135,000 members of the Screen Actors Guild and the American Federation of Television and Radio Artists launched a coast-to-coast strike against the producers of TV commercials and ads. At press time it appeared that the unions' militancy and support from a battalion of high-profile celebrities was finally speeding the dispute toward settlement.

The producers have been demanding abolition of the "residuals" system, by which actors get money each time an ad is aired, and instead want to pay a flat fee. SAG/AFTRA not only oppose the rollback but are also calling for implementation of the residuals system in the burgeoning cable and Internet markets. At issue is basic fairness: The more a commercial is aired, and the more money it generates, the more an actor should earn from it. "This is a principle that employers can't bear to live with in the new economy," says John Connolly, AFTRA's first vice president. "They want all rights for all media in the universe and don't want to share the wealth with their workers." As it is, union officials argue, labor costs account for barely 1.4 percent of the billions currently spent producing and airing commercials. Contradicting the stereotype that all actors are wealthy, a full 80 percent of the unionized actors making commercials earn less than $5,000 a year in residuals.

The producers clearly misjudged the resolve and unity of SAG and AFTRA. They thought the unions would roll over after a short, symbolic walkout. But the two entertainment unions, already angered over runaway production (mostly to Canada), have tenaciously met the challenge and escalated the fight. When negotiations stalled over the summer, strike organizers took their picketing right to the doors of multinational advertisers like GM, McDonald's and AT&T--co-producers of the commercials. The corporations felt the bite as central labor councils from Los Angeles to Seattle to Atlanta joined the battle. "Linking up with the rest of organized labor is a historic breakthrough for us," Connolly says. "It's the end of our self-imposed isolation, dating back to the blacklist days."

Negotiations finally resumed in mid-September, when a number of stars joined the fray. Harrison Ford and Kevin Spacey donated $100,000 each to the strike fund. Tom Hanks joined Alfre Woodard at a support rally in Hollywood, while Paul Newman, Susan Sarandon, Olympia Dukakis and Tim Robbins joined a similar street protest in New York City. The celebrity rallies helped crack a virtual media blackout on the strike. "There's a gag order on the press--imposed by themselves," Newman told the 700 strike supporters who rallied in Manhattan on September 13. "The television magazine shows are paid for by the advertisers, so it behooves them not to cover the strike," Sarandon told The Nation at the rally. "The actors who are affected have been invisible."

The screen elite know that in the spring, when actors' and writers' contracts with the film and TV studios expire, the same sorts of issues are going to be on the table: payment for shows that appear on cable and in foreign markets. "These actors striking today are just the advance contingent fighting for all of us," Robbins said. "This movement will resonate more and more in the coming days as the higher echelons of actors get asked, Which Side Are You On?"

In May 1928 Marie Curie, the famed discoverer of radium and double Nobel laureate, received a disturbing letter from an American journalist. It told of young women at a radium watch-dial plant in Orange, New Jersey, who were dying from necrosis of the jaw, a rare degenerative disease. The women would tip radium-laden brushes in their mouths, blithely ingesting this intensely radioactive substance--at levels more than 10,000 times those allowed under today's standards. Plant managers had told them that ingesting radium would enhance their vitality.

At the time, Madame Curie herself was paying dearly for her pioneering work. Reading the letter was not easy, as she suffered from radiation-induced cataracts and from painful radiation burns on her hands. True to form, she refused to accept that her discovery had anything to do with this tragedy and advised the women to eat calf's liver. By 1934 Curie was dead from severe bone marrow damage and America was experiencing its first industrial epidemic of radiation-induced diseases.

Madame Curie's denial of radiation dangers is emblematic of the legacy we now face as America's romance with the atom draws to a close. The once dynamic and sprawling US nuclear weapons program, which underwent spectacular growth in the past fifty years, is winding down, leaving behind a tragic health legacy that, once again, is borne by working people. In the next few weeks, Congress will decide whether to enact a federal compensation program for the 600,000 people who helped make our nuclear weapons.

The current attention dates to the summer of 1999, when the Clinton Administration, spurred on by Energy Secretary Bill Richardson, proposed legislation to compensate nuclear weapons workers. In January of this year, a report prepared for President Clinton found that workers at fourteen federal nuclear facilities across the United States have higher than expected risks of dying from cancer or nonmalignant diseases following exposure to radiation and other substances. This official concession that nuclear weapons workers were harmed led to an unprecedented public outpouring in politically conservative company towns near federal nuclear sites. Workers told of being overexposed, getting sick and then having to battle against the government, which spared no expense to block claims. "The people in this area have been forced into poverty--they fall through the cracks, and they die," said Kay Sutherland, a cancer victim, at a meeting near the DOE's Hanford site in Washington.

In June an amendment to the 2001 defense authorization bill offered by Senators Fred Thompson and Jeff Bingaman was unanimously adopted by the Senate. The measure would create a federal program to provide compensation for illness, disabilities and deaths due to exposure to radiation or to beryllium or silica, two hazardous substances. The Senate provision is far from perfect, but it's a good start. However, it looked likely as we went to press that the provision was in jeopardy. Republicans in the House were at work fashioning a symbolic gesture that greatly reduces the benefits and provides no funding to compensate people.

I started working on this issue twenty-five years ago, first as an environmental activist involved in the lawsuit on behalf of the parents of Karen Silkwood, a contaminated nuclear worker in Oklahoma who was killed in November 1974 while trying to deliver safety documents to the New York Times. While it is personally gratifying to see this change take place, it still remains a tragedy for many who could have been helped as long ago as 1951, when the first official recommendations to help sick, overexposed weapons workers were secretly turned down. As we come to terms with the aftermath of the nuclear arms race, it is time for Congress to provide justice to working people who were put at risk without their knowledge and who paid with their health and lives.

Even as Chase Manhattan prepares to take over J.P. Morgan, the bank's past is returning to haunt it. Recently revealed documents show that Chase, which was already known to have helped the Nazis, aided slavery here at home as two of its predecessor banks worked with an insurance company to insure slave owners against loss. Chase is, as far as can be determined, the first company whose forerunners have been identified as aiding both the perpetrators of the destruction of the Jews in Europe and those who enslaved Africans and their descendants in America.

Chase currently faces a class-action lawsuit filed in the United States by Holocaust survivors and victims' relatives who say their assets were frozen by Chase during World War II. Chase seized bank accounts and safe-deposit boxes from Jewish customers in France and did not return or properly account for them after the war, according to Kenneth McCallion, a lead attorney in the suit. In addition, a Treasury Department report declassified a few years ago concludes that Chase's Paris branch served as a banker for the Third Reich. J.P. Morgan, whose Paris office also worked closely with the Germans, is named in the lawsuit as well.

About a hundred years earlier, two US banks that were later taken over by Chase were described in an 1852 information circular as servicers of insurance policies issued on the lives of slaves. Titled "A Method by Which Slave Owners May Be Protected From Loss," the circular, put out by the National Loan Fund Life Assurance Company of London, describes, among others, The Merchants Bank and The Leather Manufacturers Bank, both of New York, as having the legal authority "to accept risks, adjust and pay claims." The Merchants Bank merged in 1920 with The Bank of the Manhattan Company, which in turn merged with Chase in 1955, according to the New York State Banking Department and Chase's website. The Leather Manufacturers Bank merged with The Mechanics National Bank in 1904, which then merged with Chase in 1926.

Deadria Farmer-Paellmann, the lawyer whose research earlier this year forced the Aetna Insurance Company to make a public apology for writing slave insurance policies, uncovered the documents exposing Chase. These revelations are certain to bolster the growing movement for slavery reparations.

The presidents of the two banks are listed on the circular as members of the New York board of directors of the London insurance company. The circular names medical examiners in Virginia, North Carolina and Washington, DC, who were authorized to examine slaves and also offers details about the insurance policies. For example: "A Slave aged 30 years can be insured for $500, for a year, for $11.25; and if he dies, the owner, although deprived of the revenue of his labour...will still not be unrecompensed for his loss; for there will still remain to him--not his Slave--but the $500 which constituted his value...." While it has still to be determined whether the two banks actually serviced any policies for slave owners, the existence of the circular proves that the banks actively sought and were part of such business.

Jim Finn, a Chase spokesperson, said that his organization needs more time to study the circular and related materials before he could comment. Farmer-Paellmann, who is continuing her research, said, "My hope is that if archival records show that policies were written, then Chase will apologize for helping to maintain that crime against humanity and pay restitution into a trust fund to benefit heirs of Africans enslaved in America."

In early September Chase agreed to permit an investigator who had probed Swiss banks for their Holocaust-era activities to review its records to determine how Chase had helped the Nazis. Chase should immediately open its archives to slavery researchers as well. Only then will a full record be available to determine what reparations, if any, should be paid.

Instead of kissing babies, this year the pols are bashing youth culture
and the companies that promote it. "The culture of carnage surrounding
our children" is "turning some of them into killers," Joe Lieberman
thundered at the Senate Commerce Committee's September 13 hearing on the
marketing of violent entertainment. Al Gore and Lieberman want to
sanction companies for targeting "adult-rated" music and movies at young
audiences, as if rough lyrics were as measurably toxic in their effect
as tobacco.

Politically, the Rev. Al and Holy Joe made a deft feint to the right,
enlisting the Federal Trade Commission for blatantly partisan purposes
and leaving the GOP scrambling to secure second billing at the hearing
for its own sputtering culture czar, Lynne Cheney. But it's a dangerous
way to milk votes, eroding the First Amendment while unleashing
incendiary anxieties about teenagers with little basis in reality.

A few facts are in order. While the FTC charges in its recent report
that entertainment companies have marketed inappropriate material to
young people, it concedes that there is no concrete evidence linking
violent content in the popular culture with violent actions of
teenagers. No one at the Senate hearing pointed out that juvenile
homicide and most other violent juvenile crime is down nationwide.
Deaths in schools are fewer than half what they were in 1993, and
between 1991 and 1997, students who reported being in a fight declined
46 percent. Young people, in other words, are at less risk of
participating in violence than any time in a generation.

Gore and Lieberman's culture war--to which George W. Bush and Pat
Buchanan added their self-serving spin--implicitly portrays American
teens as empty vessels at the mercy of corrupting entertainment. The
only candidate talking sense was Ralph Nader, who said the way to deal
with violent entertainment is to "fight the First Amendment with the
First Amendment"--in other words, more speech, which in this case means
more public-interest networks financed by "rent" charged to the big
media companies for using the public airwaves.

It's hard to cheer for the entertainment industry, whose
ever-more-concentrated corporate ownership threatens democratic culture.
But democratic culture--which has shown considerable capacity to sort
out the enduring in popular music and films--isn't the point. Gore and
Lieberman want, in effect, to encode the entertainment industry's
voluntary ratings into law, using the FTC to police marketing
departments' compliance. Gore says he avoids censorship by concentrating
on marketing strategy, but his proposal still amounts to punishing the
purveyors and would-be consumers of controversial, abrasive art. The
plan is also a significant abuse of the FTC.

The real danger to society isn't imaginary violence in music or movies.
Youth violence is nearly always a response to brutalization--by
families, by peers, by police or by punitive "zero tolerance"
juvenile-crime laws like those promoted by Bush in Texas, which have
more than doubled the imprisoned teenage population there. It is also a
cry against neglect. But that is reality, not politics. When it comes to
exploiting fear and selling fantasy, Gore and Lieberman have learned
Hollywood's lessons all too well.

The Rehnquist Court has revived Ronald Reagan's attempts to gut the New Deal, Great Society and civil rights laws enacted to help the have-nots of American society. Its weapon of choice has been the states' rights doctrine. Just as during the New Deal, when this doctrine was also invoked against the expansion of federal power that was used in the interests of ordinary people, the Rehnquist Court's seemingly neutral states' rights rhetoric and argumentation have been a fig leaf to cover up more tangible interests like race and money.

This is not new. Throughout our history, states' rights rhetoric has been used for regressive causes. It has been an especially favored strategy since the Civil War, because the two great transfers of power to the federal government at the expense of the states, at which this strategy has been aimed--the post-Civil War amendments and the New Deal--have also been reform movements threatening conservatives with respect to race and class.

The anti-Washington leader on the Court is Chief Justice William Rehnquist. Raised in a Roosevelt-hating family, he has been an archconservative since his earliest days. His first opportunity to strike at federal power came in 1976 in
National League of Cities v. Usery, a case involving the 1974 amendments to the Fair Labor Standards Act, which extended minimum-wage and maximum-hours requirements to state and local governments. Cobbling together a 5-to-4 majority, he got the Court to strike down the 1974 extension.

For authority, Rehnquist looked to the Tenth Amendment, which provides that "the powers not delegated to the United States by the Constitution...are reserved to the states." The amendment does not, however, specify what is "reserved," so Rehnquist created a new doctrine based on the "policy" of the Tenth Amendment, which he said authorized the courts to prohibit the federal government from regulating the states' "traditional functions" if doing so "impaired their sovereignty" and "their ability to function effectively in a federal system."

The result was judicial confusion, as courts struggled with these vacuous criteria. After nine years, the Court overruled National League of Cities, but in 1990 the tide turned again. Avoiding constitutional issues, a 5-to-4 majority in Gregory v. Ashcroft interpreted a federal law banning age discrimination as not applying to state judges.

After Clarence Thomas joined Anthony Kennedy, Sandra Day O'Connor and Antonin Scalia on the Court in 1991, cementing the conservative majority, the constitutional assault on federal power went into high gear. The first target was a radioactive-waste-disposal statute, which was based on a compromise that the states themselves, including New York, had hammered out. The act imposed sanctions on those states that didn't implement the statute, and for this reason, the majority struck it down in New York v. United States (1992). Unable to rely on specific language in the Constitution, the majority used its own conception of the constitutional "framework" and "structure," and condemned the act for "commandeering" state officials to implement it, ignoring in the process numerous historical examples of state implementation of federal laws. "Accountability is...diminished" by such state enforcement, said Justice O'Connor for the Court, arguing that state officers who had to implement burdensome federal directives would be blamed for them. The argument is ludicrous--people in the radioactive-waste business knew the rules were set by the Feds. The Court used the same dubious "accountability" reasoning five years later in Printz v. United States to slap down the Brady gun control bill's requirement that local law enforcement officers check the backgrounds of prospective gun purchasers.

The hollowness of the conservatives' concern for states' rights was revealed in the New York v. United States decision. The radioactive-waste law had been promoted by the states themselves. But Justice O'Connor rationalized that the anticommandeering principle was not for the benefit of the states but to preserve "the liberties" of the people; the states' consent to the law was irrelevant. But how are the people's "liberties" protected when the wishes of their elected representatives are ignored? And is not accountability diminished if those representatives cannot act as they believe their constituents want?

The conservative majority's fickleness toward state interests is not a rare phenomenon. They have had no trouble striking down hundreds of state and local affirmative action plans, voluntary desegregation plans and electoral districting plans that created majority-black districts. And they haven't hesitated to strike down zoning and environmental laws in the name of property rights.

Four years after New York v. United States was decided, the trickle of antifederal decisions became a flood. It began with an attack on the commerce clause, the source of federal power over the national economy. Recognizing the interrelatedness of almost all parts of the economy, the Court had upheld every assertion of federal power under the commerce clause since 1937. In 1995 that changed. In Lopez v. United States the usual 5-to-4 majority struck down a federal law criminalizing the possession of guns in a school zone, because no economic transaction was involved and there was no Congressional finding of an effect on interstate trade. The obvious impact of school violence on the national economy was dismissed, and the fact that most guns move in interstate trade was ignored. Four years later, in United States v. Morrison, the same 5-to-4 majority used the same argument to strike down the Violence Against Women Act: It was not an "economic" matter, even though there was "a mountain of data" that violence against women costs the economy billions each year. Nor did the Court give any weight to the overwhelming state support for the act.

In 1996 the Court also resurrected a state sovereign-immunity doctrine that had been repudiated just seven years earlier. The Eleventh Amendment denies federal courts jurisdiction over suits by citizens of one state against another state. Over the next four years, the conservative bloc used this doctrine, which is based on the now discredited "the King can do no wrong" philosophy, as the basis for allowing a state to halt damage suits against itself by any person, even in state courts, and even if the state engages in what is ordinarily private business that wrongly damages someone. Nothing in the language of the Constitution creates such an immunity, and certainly not for federally created rights. That did not faze these Justices, however, all of whom have regularly excoriated liberal judges as "activists" when the latter sought to promote individual rights and did not stick closely to the text.

The next year, the conservatives turned to the Civil War Amendments. Section 5 of the Fourteenth Amendment authorizes Congress to enforce that amendment by appropriate means. In 1990 the Court narrowly adopted a Scalia opinion overturning a twenty-seven-year-old doctrine by which religious minorities were exempt from having to comply with unnecessary burdens that interfered significantly with their worship (Employment Division v. Smith). Congress responded by almost unanimously passing the Religious Freedom Restoration Act (RFRA) to reinstate that possibility.

It didn't last long. In a 6-to-3 decision, the Court ruled that Congress had no power to enlarge constitutional rights beyond the limits the Court had set. RFRA failed as a remedy, according to the Court, because it burdened too many state activities too much--even though the states had lived comfortably for over a quarter-century with the doctrine RFRA sought to reinstate.

This past term, the conservative majority struck twice at Section 5, once in dismissing a suit by older workers under the Age Discrimination in Employment Act (Kimel v. Florida Board of Regents) and again in the course of overturning the Violence Against Women Act, despite support for the act from thirty-six states. This coming term the Court will consider suits by state employees against a state for violating disability rights statutes; their prospects are bleak.

There have been a few isolated losses for the states' rights bloc: Kennedy jumped ship to make a 5-to-4 majority to strike down a state term-limits law, and this past term the Court upheld a law banning the sale by states of private data collected from driver's-license applications. But such decisions have been few and far between.

Academic commentators disagree on how harmful the conservatives' federalism rulings have been. They have unquestionably spawned confusion and litigation over federalism issues, thereby overburdening a federal judiciary that is already creaking under the weight of its caseload. And a good number of Americans--how many is impossible to tell--have been denied a meaningful remedy for blatant violations of their rights under federal law.

One thing is clear: All of US history demonstrates unambiguously that have-nots and outsiders fare poorly at the state level. The Rehnquist Court's paeans of praise for state government are belied by reality. Voting turnout in state and local elections is notoriously low. Many state legislators are ill-paid part-timers without staff, and are at least as susceptible to lobbyists as Congress, if not more so. Conflicts of interest are rife--one recent study found that one-fifth of state legislators serve on legislative committees that oversee their private businesses. And concern for the poor, the weak and people of color is often negligible or nonexistent.

If the current federalist assault on the federal government continues--and if George W. Bush becomes President it will--those already shortchanged by our society will do even worse.

By any standard, the proposed merger of America Online and Time Warner, currently under review in Washington, is enormous. Even in this era of mega-mergers, the marriage of the world's largest Internet service provider (ISP) and the largest media conglomerate (which directly controls almost one-fifth of the nation's cable subscribers and which, through a relationship with AT&T, has a stake in another 30 percent) stands out above the rest. What we don't see, however--or rather won't see, so extensive is the web of mergers and acquisitions, joint ventures and "co-branded properties" that ensnares the mass media today--may be the biggest story of all: the transformation of the Internet into a collection of commercially driven "walled gardens."

Given cable's clout (roughly two-thirds of all households currently subscribe), the broadband networks that AOL-TW, AT&T and other cable operators are in the process of introducing will very likely become the Internet delivery platform of choice for most Americans in the years to come. Wireless and satellite broadband transmissions are still two to three years off, and even if the phone companies' new digital subscriber line (DSL) connections manage to maintain their small broadband market share (roughly 20 percent), cable's fatter pipes will allow it to win the race to deliver the rich-media content of the next-generation Internet.

While the basic structure of the Internet itself won't change--it will range as far and wide as ever--the means through which subscribers gain access to its varied resources, using systems modeled on cable's closed video platform, will gradually constrict. New forms of interactive television, offering what amounts to "Internet Lite" via proprietary set-top boxes, will substitute ease of use for freedom of choice, featuring what AOL-TW euphemistically refers to as "next-generation branded content." Over time, as cable broadband takes hold, the Internet for most Americans will evolve into what media historian Ben Bagdikian predicts will be "the biggest shopping mall in the world."

Before he bought his way into the cable market, AOL's Steve Case was a leading figure in the movement to break the cable industry's stranglehold on the growing broadband market. But on the day AOL became an owner of cable with the announcement of its merger with Time Warner, that changed. In the words of TW's Gerald Levin, "We're going to take the open access issue out of Washington and out of City Hall and put it into the marketplace." In other words, AOL-TW, AT&T and other cable giants will remain the Internet's ultimate gatekeepers. In the absence of new regulatory safeguards, there's nothing to prevent cable operators from narrowly defining the Internet experience for their subscribers in any number of ways. The cable ISP, for example, can determine both the "start page" at which the user's online travels begin and the onscreen "real estate" and navigational menus, in which the user makes programming choices. It will even be possible for network operators to manage online traffic to expedite the delivery of affiliated content while relegating competitive material to second-class service.

Unfortunately, the FCC under chairman William Kennard has thus far taken a hands-off position. FTC chairman Robert Pitofsky appears to be much more keenly aware of what's at stake. In the next few weeks, the FTC and the FCC will decide what kinds of conditions, if any, need to be imposed on the merger. Although formally opposed to the AOL-TW alliance, a coalition of consumer and public interest groups has asked that--if it is to be approved--there be at least two basic safeguards. One would require AOL-TW to agree to a policy of open access and nondiscriminatory transport, insuring that competitive ISPs and websites would have a legal right to use the company's broadband pipes--including the set-top boxes that will become the crucial link between cable's past and interactive television's future. The other would cut the ownership ties between AOL-TW and AT&T. Without new cross-ownership restrictions, these two affiliated companies would have a chokehold on high-speed Internet content and distribution.

Open access to the broadband Internet is essential if we are to insure that a diverse range of voices has a chance of reaching out to citizens in the new era of high-speed communications. And once such access is secured, public-interest, nonprofit and other alternative voices must be prepared to offer interactive programming that will make a difference. For in the new world being created by AOL-TW and others, that kind of programming, free of brand identification, product tie-ins and other e-commerce opportunities, simply won't be on the agenda.

He thinks that hostile's hostage.
He cannot say subliminal.
The way Bush treats the language
Is bordering on criminal.

His daddy had the problem:
He used the nounless predicate.
Those cowboy boots can do that
To people from Connecticut.

This past summer, I wrote in this space about the historical limits of third-party presidential candidacies--the failure not only of such candidates to get a significant percent of the vote, but also of their parties to build on their moment in the sun. Within minutes, the magazine was deluged with protest e-mails from Nader fans. Even my father wrote in to put in a last hurrah for Henry Wallace and his 2 percent in 1948. In a particularly nutty syndicated column, Alexander Cockburn implied that I had been contacted by the Gore campaign in order to "bully" leftists into staying with the Dems. All this high drama, even though I did not urge people to vote for Gore or say I was planning to do so myself! What I did point out was that Nader and the Greens ought to acknowledge that there are (still!) some real differences between the parties and to explain more persuasively why the risk of a Bush win--to choice, the Supreme Court, affirmative action--was worth taking.

All these issues flared up again in early September, when the San Francisco Chronicle reported that Patricia Ireland, head of NOW, had "lashed out" at Nader for neglecting feminist issues. Next day, Nader fired back: "I have been fighting for women's rights before Patricia Ireland knew the term"--and I'm old enough to be your father, little missy! he didn't add. Nader mentioned credit discrimination, unnecessary operations and auto-dealer ripoffs as issues pioneered by him and ignored by feminists. Wrong: NOW led the fight against sex discrimination in credit back in the seventies. Unnecessary surgery--hysterectomies, caesareans, mastectomies--has been a continuing preoccupation of women's health groups. And to suggest that organizations fighting antichoicers and father's rights-ers, rape, domestic violence, harassment, bias at school and job, in Social Security and the courts, should focus instead on auto-dealer ripoffs... well, let's see: legal abortion, cheaper car, Violence Against Women Act, cheaper car--where would you place your limited resources?

I was all set to write a column (another column!) about Nader's tone-deafness to feminism. Why, when you consider how courtly he is to the right--Pat Buchanan, Bill Bennett, even Phyllis Schlafly--can't the man show a little respect? When I reached Nader by phone, though, I have to say he was much more nuanced than I expected, not to mention livelier and more amusing. He waved away both Ireland's remarks and his own as journalist Carla Marinucci's doing--"She likes to ask you a provoking question when she knows you're in a hurry." He acknowledged that, yes, "Bush is worse than Gore on some issues--on abortion and gun control for instance, their differences are real, not rhetorical." He defended his feminist record ("I've done a lot more than I get credit for") and rather plaintively wondered, "Why do we hassle each other with these little differences when basically we're on the same page?" before launching into a description of a particularly grotesque episode of the Howard Stern show, involving a single mother being spanked with two dead fish. "Why don't women go after him? I wrote to NOW about this!" I wouldn't say Nader is particularly well-informed about what feminists are up to (attacking misogynous pop culture, including Stern, is a perennial enthusiasm--NOW has a huge media activism section), but I didn't hear in his conversation the note of white-male irredentism and cultural conservatism masquerading as "class politics" I hear from some of his supporters.

"I think Gore's got it," Nader predicted. "He's got Bush on the defensive now, and I'm slamming Bush on issues Gore won't touch, like corporate welfare, the Texas Rangers deal--you know what that is, don't you?" (Yes, I lied.) "So we may end up with the best of all worlds. The Greens will get the 5 percent and the federal funds, and I'll become a watchdog on Capitol Hill for all those great progressive organizations people pay their twenty-five dollars to join..."

"So, you're saying that in the best of all worlds Gore wins and you get the 5 percent?"

"No, that's the second-best world. In the best world, I win the White House, and Gore gets the 5 percent."

I still think Nader dismisses too lightly the threat Bush poses to women's rights and civil rights generally. Having said that Gore was genuinely better on abortion, Nader seemed to deny that this would matter: Roe v. Wade "is a settled issue. We're not going back to the back alley again. Prochoicers are too strong." But if prochoicers are so strong, how come abortion is already encumbered with more than 300 state restrictions, most carrying criminal penalties? How come George W. Bush signed eighteen antiabortion bills into law in 1999?

There's a reason my friend Ellen DuBois at UCLA tells me she knows lots of progressive couples in which the woman is furious at her man for backing Nader, and why Nader has almost no black support in polls. About electoral politics, Nader seems insufficiently skeptical: On the one hand he declared the Democrats "unreformable from within"--too corrupted and controlled by corporate interests and donations. In the next breath he talked about building the Greens to push the Dems left--as if the corporate powers he just so vividly depicted wouldn't simply flex their own muscles more vigorously.

I still think third-party politics is mostly a crock, but then, so is two-party politics. Nader may be a 67-year-old pre-multiculti sort of a guy, but he is so right on so many issues--he is the only candidate who talks about structural poverty, healthcare for all, abolishing the death penalty, cutting the military, ending the drug war, diversifying the media. I wouldn't lift a finger that would help elect George W., but I'm taking a leaf from Molly Ivins, who advises voters to take advantage of our antiquated Electoral College system and go for Nader if they live in a state that's solid for Bush or Gore. If Gore is still up in New York on Election Day, I'm voting for Ralph. I reached Patricia Ireland just as I was finishing this column, and she says that's a great idea.

The symptoms and clues have been staring us in the face for some time. Early in the campaign, Bush said that he did indeed crack the odd book and was even at that moment absorbed by James Chace's biography of Dean Acheson. But when asked to report anything that was in the damn volume, the governor pulled up an empty net. His brother Neil is an admitted dyslexic. His mother has long been a patron of various foundations and charities associated with dyslexia. How plain it all now seems.

The likely impact of the next few Supreme Court appointments on civil rights and racial justice is momentous. So much hangs in the balance that one feels simultaneously energized to make the upcoming election count, while despondent because so much struggle has nevertheless left progress so contingent on this election. Many people erroneously assume that racial progress in America is somehow inevitable. Put simply, however, the nation's moral compass is not too keen an instrument as regards minority rights. It is frequently misdirected by the flux of political passions and majority self-interest, so that fundamental matters of vision, values and ends are hotly contested.

The project of racial reconciliation and historical correction is "constitutional" in the deepest, multiple senses of that word. One might expect that nonpolitical courts would be powerful engines for that project, but America's moral confusion is perhaps more apparent in the courts than in other precincts. Moreover, the next four years are certain to see a series of vital issues come before the High Court, and the outcomes are up for grabs this November.

The Constitution's principal tool for racial and ethnic justice is the equal protection clause of the Fourteenth Amendment. Longstanding Supreme Court doctrine interprets that clause to subject government decisions making use of race to a high standard of justification termed "strict scrutiny." This standard requires that the government's action serve a "compelling interest" and be "narrowly tailored" to fit that interest. Similar dilemmas of justification and proof occur in civil rights disputes that involve antidiscrimination laws rather than the Constitution itself.

Many recent affirmative action and voting rights decisions have been decided by a 5-to-4 vote against minority plaintiffs or local governments attempting to employ progressive race-conscious policies to combat discrimination or promote inclusion of one form or another. Justice Sandra Day O'Connor, who's written the majority opinions in some of the crucial affirmative action cases, has often included language that purports to moderate the views of the more conservative members of the Court. For example, in Adarand Constructors, Inc. v. Peña (1995), which involved set-asides in federal contracts for minority contractors, she made clear that the application of the strict scrutiny test would not be fatal to all federal affirmative action programs involving race-conscious policies, but that the one in Adarand seemed to trouble her. In her concurring opinion in Bush v. Vera (1996), she provided support for the proposition that complying with the Voting Rights Act could constitute a compelling governmental interest that could partially satisfy the first part of a court's strict scrutiny analysis of race-based Congressional district lines. And in Miller v. Johnson (1995), she insisted that while race cannot be a predominant factor in drawing election district lines, absent a compelling interest it may in at least some circumstances be one among other factors, such as protection of incumbents. But just not the one in Miller.

Justices Antonin Scalia and Clarence Thomas have often presented concurrences that would go further than the majority opinions by eliminating any form of race-conscious policy. In Adarand, Scalia largely ignored the country's long history of racial discrimination by equating the "way of thinking" that caused slavery and racial animosity with efforts to remedy racial discrimination through affirmative action. Similarly, Thomas's concurrence in the Adarand case called affirmative action "noxious" and "government-sponsored racial discrimination." In another context, Holder v. Hall (1994), a voting rights case, the concurring opinion of Justices Thomas and Scalia suggested an extraordinarily narrow interpretation of the Voting Rights Act that would limit it to the most egregious individual denials of franchise. As the four dissenters noted, such a narrow position was radical and would have required the overturning or reconsideration of at least twenty-eight previous Supreme Court decisions.

So as we undertake the massive Congressional, state and local redistricting flowing from the census 2000 results, the state of the law seems to be that majority-white districts can be drawn in any shape or fashion with virtual impunity. Majority-minority districts are subjected to strict scrutiny if they look funny to the Court. The Fourteenth Amendment and the 1965 Voting Rights Act never contemplated imposing heavier burdens on minorities in achieving democratic representation, but that's where the Rehnquist Court has left us. In the coming round of postcensus litigation, things could well get worse.

Several other constitutional developments are likely during the next presidential administration: First, the Court is likely to decide whether promoting diversity in education is a compelling governmental interest for strict scrutiny purposes. This issue, which now divides the lower courts, is critically important on thousands of campuses that currently use some form of race-conscious affirmative action in either admissions, financial aid or faculty hiring. It is also important, however, in elementary and secondary schools. Districts nationwide are struggling in policy meetings and lawsuits to understand their obligations and their discretion to combat racial segregation in our schools. Rehnquist-era rulings by the Supreme Court have opened a flood of court actions that, combined with segregated residential housing patterns, have served to reverse the progress toward integration and have brought a growing trend toward racial isolation, which correlates with an increasing number of high-poverty schools. This inevitably makes more difficult our efforts to improve educational achievement and knit the social fabric required to build one prosperous nation, in which we celebrate our differences as a source of richness and strength.

A ruling that racial diversity is not a compelling interest could occur under the current Court membership, depending on whether Justice O'Connor votes her conservative record or moderate rhetoric. With new Bush appointees, the result seems all but certain, and institutions and communities across the nation will be forced to set out on a different path, compass askew.

A second major development, however, might also threaten the rationale for policies to remedy discrimination. If the Scalia/Thomas perspective commands a solid majority, then the Court would narrow the grounds for race-conscious remedies, limiting them to specific instances of intentional discrimination today or in the very recent past. They might as well demand a photograph of racial animus dripping from the lips of some identifiable perpetrator to meet their solidly conservative test of strict scrutiny.

Finally, the Court will likely face cases in education, employment, healthcare and criminal justice in which minority plaintiffs will offer overwhelming evidence of disparate harsh effects from some policy--whether a high school exit exam or criminal sentencing--and demand that the defendants meet a high standard to justify racial consequences of their actions. Will the courts continue to leave the door open so that such disparities can, in some cases, be considered evidence of discrimination requiring remedy? Many observers fear that under the current Court, these principles are hanging by a thread.

In sum, the usual Court majority in civil rights cases has been composed of Chief Justice Rehnquist and Justices O'Connor, Scalia, Thomas and Kennedy. The usual dissenting minority has been composed of Justices Stevens, Souter, Ginsburg and Breyer. Focusing on the four Justices often mentioned as potential retirees, if a President George W. Bush were to replace Justice Ginsburg, a Clinton appointee, he will confirm and accelerate the drift away from judicial solicitude for efforts to eliminate the vestiges of racial caste. Much the same will be true if Bush replaces Justice O'Connor's swing vote with a more conservative voice, because the hard-edged conservatism of the Scalia-Thomas faction would be strengthened. Their sweeping, close-the-door concurring opinions would become majority statements of doctrine, rather than the portentous minority saber-rattling they are now. And the Court would more aggressively scan the lower-court dockets seeking cases to review in order to make or confirm conservative doctrine. By contrast, a President Al Gore, given an opportunity to replace Rehnquist or O'Connor, could not only keep the opportunity door ajar but also move to erode the dispiriting Rehnquist-Reagan era retrenchments.

For minority communities that have faced difficulty over the years electing representatives of their choice, feeling that their votes might matter little if at all, the stakes on the Supreme Court make the get-out-the-vote message this fall obvious: You now have a vote. Use it or lose it.

The contrasting environmental records of Vice President Gore and Governor George W. Bush will be hotly debated during the presidential campaign, but the potential impact of their appointments to the Supreme Court should be of equal, if not greater, concern. If, as President, Bush were to appoint Justices with views similar to those of Antonin Scalia and Clarence Thomas, the scope and strength of federal environmental law could be gravely weakened.

To date, the Rehnquist Court's environmental record has been mixed. While no darling of the greens, neither has it been consistently "brown." As evidence of the Court's lack of a clear environmental vision, consider two nineties cases brought under the same law--the Endangered Species Act. In Babbitt v. Sweet Home Chapter of Communities for a Great Oregon (1995), the Court strengthened the act by broadly interpreting the requirement of "harm" necessary to trigger its protections. Although a lower court had interpreted "harm" to mean actions causing the direct injury or death of an endangered species, the Supreme Court broadened the meaning to include indirect actions that impair its essential behavior patterns. In the Sweet Home case, the Court prohibited logging of old-growth forests not because it killed spotted owls but because it destroyed their habitat, jeopardizing their long-term survival. As a result, the Endangered Species Act's reach was significantly extended to cover not only actions likely to cause the injury of a species but the range of actions that adversely modify its habitat. In Lujan v. Defenders of Wildlife and Lujan v. National Wildlife Federation, however (see below), the same Court erected significant obstacles to citizens' suits that seek to enforce the act.

The lack of a consistent pro- or anti-environment stance for the Court as a whole, however, does not mean that particular Justices' decisions in environmental cases have been random. In a recent analysis of the Supreme Court's environmental decisions over the past three decades, Georgetown law professor Richard Lazarus found two current Justices with consistent anti-environmental voting records: Scalia and Thomas. Their anti-environmental votes and the voting patterns of other current (and future) Justices can best be explained by focusing not on their views toward environmental protection per se but rather toward two distinct political issues--separation of powers and the protection of private property rights. As a general matter, Justices who believe in vigorous checks and balances between the branches of government (such as a strong role for the judiciary in reviewing agency action) and the right of government to restrict uses of private property will be more likely to decide in favor of environmental protections. These two predictors become most evident in reviewing the two major fault lines currently running through the law--citizens' access to courts and the scope of private property rights.

Virtually all of our major environmental laws contain citizen-suit provisions, providing a legion of private attorneys general to supplement the government's role in enforcing environmental laws. For citizen suits to vindicate the protections promised by those laws, however, private parties must be able to get into court in the first place. And to do so they must satisfy the requirements of "standing." They must demonstrate (1) that they have suffered an injury in fact; (2) that the injury is the result of an act forbidden under the law; and (3) that the court can provide redress. Primarily because of its narrow view of what constitutes an injury, the Rehnquist Court has until recently made it increasingly difficult for environmental plaintiffs to meet the requirements of standing.

In two of the Court's most significant decisions of the nineties, the Lujan cases, Justice Scalia wrote that plaintiffs must demonstrate specific links of causation between the challenged act and the claimed harm to the plaintiffs. In the case of actions alleged to threaten endangered species, the Court required plaintiffs to show that they had a particular economic or physical connection to the species, expressly ruling out aesthetic or recreational injuries. The net effect was to restrict citizens' access to the courts. Some lower courts have since denied standing to plaintiffs unable to show particularized harm from a polluter's specific discharge. Proving this is well nigh impossible, because it is unusual that a harm resulting from pollution can be traced back to a single source. Usually, the degradation of air and water quality occurs over a long period of extended pollution from multiple sources.

The underlying logic for closing the doors of courts to many environmental concerns lies in separation of powers. Justice Scalia argues that the executive branch, not the public or the courts, is responsible for seeing that the laws are faithfully executed. If citizens are concerned about agencies' poor compliance with statutory mandates they should go to Congress for a legislative fix or to the executive branch for a political resolution. The problem with this pat answer, of course, is that Congress provided for citizen suits expressly to insure that the executive branch did enforce the laws. Recall how Reagan Administration appointee Anne Gorsuch neutered the Environmental Protection Agency.

Recently the Court reversed its holdings on environmental standing in midstride. In Friends of the Earth v. Laidlaw Environmental Services (2000), the Court breathed life into citizen suits, holding that plaintiffs do not have to show an actual physical injury to the environment. Eliminating the need for precise tracing of cause and physical effect, the Court stated that the plaintiff's reasonable concern about the effects of toxic pollutants released by the Laidlaw company on recreational, aesthetic or economic interests was sufficient for standing. This makes it much easier for a plaintiff to demonstrate injury. Justices Scalia and Thomas, it should be noted, strongly dissented.

The second major fault line--protection of private property rights--runs through what are called "takings" cases. The Fifth Amendment to the Constitution provides that private property cannot be taken for public use without just compensation. Housing construction along the coastline, for example, can adversely affect the environment by increasing beach erosion. Such use of private property may be restricted for the public benefit of coastal conservation. Yet if the government had to compensate every landowner whose property value diminished as a result of such zoning, the cost of enforcing such restrictions would be prohibitive. The problem for the courts lies in determining when restrictions are so complete and unfair that they constitute a "taking" for which the property owner must be compensated.

The Rehnquist Court has applied the takings clause aggressively and shifted the balance toward greater compensation for property owners. In the important decision Lucas v. South Carolina Coastal Council (written by Justice Scalia in 1992), for example, the Court required compensation for regulations that deprive the property owner of all economically valuable use of the land unless the government can prove the restriction is necessary to prevent what has traditionally been recognized as a common law nuisance. This not only switched the burden of proof onto the government but, in another part of the opinion, left the door open for lower courts to require compensation for less than total diminution (and some have done so). The net result has been expanded protections for private property owners and cost constraints on legislatures seeking to protect public resources. The case had a slim majority, so new appointments will surely be important in determining the trajectory of takings jurisprudence.

If Governor Bush appoints Justices who share the views of Scalia and Thomas on rigid separation of powers and strong protection of private property rights, the remarkable gains of environmental law over the past three decades will very likely be slowed or even reversed.

Like the short-lived "Era of Good Feelings," which united all political factions behind the re-election of James Monroe, a First Amendment Era of Good Feelings unites all factions on the Rehnquist Supreme Court behind vigorous judicial protection of free speech. But, like the original Era of Good Feelings 180 years ago, the surface First Amendment consensus on the current Supreme Court conceals a crucial fault line that will shape the nature of free speech in the twenty-first century. At stake is whether the twenty-first-century First Amendment will be a protector of the powerful or a resource for the weak and disfranchised. The current Court is closely divided between First Amendment Disablers, like Justices Antonin Scalia and Clarence Thomas, who treat the free-speech clause as if it were a physical barrier walling government off from the act of speech; and First Amendment Idealists, like Justices John Paul Stevens and Ruth Bader Ginsburg, who view Madison's handiwork as the articulation of an ideal permitting government to regulate the speech of the extremely powerful when necessary to defend the Madisonian vision of a marketplace of ideas open to all, regardless of wealth.

Most of the time, the distinction between a First Amendment Disabler and a First Amendment Idealist is irrelevant, since most First Amendment cases are decided the same way under both approaches. That explains why, in the 100-odd First Amendment cases decided during the Rehnquist era, the scale has tilted so markedly toward free speech (occasionally over the Chief Justice's dissent). In 1988, two years into the Rehnquist era, the Chief Justice refused to allow Jerry Falwell to sue Hustler over a tasteless parody that insulted Falwell's mother. That unanimous decision set the tone for the next twelve years. This past term the Court invalidated Congress's efforts to confine sexually provocative speech on cable television to late-night broadcasts, reasoning that a rule allowing parents to block the transmission on a household-by-household basis is a less drastic interference with free speech. Last term, the Court struck down Congress's effort to ban the advertising of casino gambling on television. The term before that, the Court struck down Congress's effort to ban "indecent" speech from the Internet. Although the Court displays an occasional free-speech blind spot--witness its almost comic inability to deal with nude dancing, and its not-so-comic decimation of the student press--the grand free-speech alliance between the Court's liberal and conservative wings that was forged a little more than a decade ago in the flag-burning cases continues to hold.

In at least three important free-speech contexts, though, the differences between Disablers and Idealists can be crucial. The future of campaign finance reform depends on whether the twenty-first-century Court will be staffed by First Amendment Disablers or First Amendment Idealists. Until now, the Disablers have had the upper hand, with unfortunate results for American democracy. In Buckley v. Valeo, the Court gave the rich an immense electoral advantage by ruling that the First Amendment disables government from attempting to limit campaign spending, no matter how much money is involved and no matter how disproportionate the resources of the candidates may be. Restrictions on the size of campaign contributions were grudgingly permitted, however, in order to prevent corruption. A second distinction was made in Buckley between campaign speech, overtly aimed at influencing the outcome of an election, and issue advocacy, ostensibly aimed at persuading people about more general issues. While the funding of campaign speech was deemed subject to regulation, the First Amendment was held to disable government from all efforts to regulate the funding of issue advocacy.

The razor-thin distinctions in Buckley between campaign spending and campaign contributions, and between campaign speech and issue advocacy, have been disastrous. Political campaigns have been caught in a squeeze between an uncontrollable rise in the demand for campaign cash and significant limits on legitimate sources of supply. The net result has been a vast gray market in campaign funding. Huge amounts of unregulated money are spent on phony issue advocacy that is nothing more than unregulated campaign spending. Even larger sums are diverted to political parties as nonregulated "soft money," although everyone knows that the funds are disguised campaign contributions.

Given the collapse of the regulatory regime, virtually no one believes in the Buckley precedent anymore. The case is a rotten tree that is about to fall--but no one knows in which direction. If the First Amendment Disablers prevail, almost all restrictions on campaign funding, including most restrictions on campaign contributions, will be deemed to violate the First Amendment. If First Amendment Idealists prevail, reasonable limits on campaign spending designed to allow ordinary people to play a role in American democracy will have a real chance to succeed.

The Justices appointed by the winner of the 2000 presidential election will also determine the structure of American media in the twenty-first century. We are living through a profound consolidation of media ownership. When the dust settles, a handful of corporations will control virtually all of our television, cable, radio, newspapers, magazines, book publishers and movies. Everything that gets said on our media networks or gets sold in our bookstores and newsstands will go through a very few corporate boardrooms. If First Amendment Disablers prevail, government efforts to restructure the ownership and control of our media monopoly, perhaps by arguing that there is a First Amendment antitrust doctrine that forbids oligopoly control over communications, will be doomed. If First Amendment Idealists prevail, efforts to restructure the media to assure a multiplicity of voices will have a real chance to succeed.

Finally, much important speech in a democracy is subsidized. Public television, legal services lawyers, doctors in family planning clinics, professors in public universities and government-supported art museums are all examples of crucially important subsidized speakers. The current Court is deeply divided over whether government may place conditions on the aid it gives to those speakers. Disablers react by arguing that since the government is actually enhancing the quantity of speech, the First Amendment has little or no role to play in controlling the strings government chooses to put on the money. Thus, according to disablers, doctors in federally funded family-planning clinics can be forbidden to discuss abortion with their patients. The Court narrowly upheld such a restriction by a 5-to-4 vote. Idealists, on the other hand, view government efforts to control subsidized speech as a violation of the First Amendment. They viewed New York City Mayor Rudolph Giuliani's recent effort to control the art exhibited at the Brooklyn Museum as an easy First Amendment case.

At stake, therefore, in the 2000 presidential election is not whether we will have a vigorous First Amendment. That battle, at least for the foreseeable future, has been won. It is whether the First Amendment will become an ally of the rich and powerful, insulating their control over our politics and our media from government regulation, or whether the First Amendment will emerge as a vehicle for the defense of a true free market in ideas open to all, regardless of wealth.

Justice John Paul Stevens looked great the last time I saw him, celebrating his eightieth birthday, playing the back nine of his life, where the important games are won. He is the Court's leading liberal and its oldest member; he was considered a moderate when I worked for him twenty-two years ago, which is more a measure of how far the Court has moved than how far he has. His tennis game is still sharp, for which I am grateful, since his good health may be what stands between American women and a major setback for reproductive freedom.

For years, feminists have sought to draw a link between the presidential election, the Supreme Court and reproductive freedom. You vote for the Court when you vote for President. You're voting on Roe v. Wade. That's what we say. And it never works. When you hear candidates giving speeches about the Supreme Court, it better be Law Day, or it means they're in trouble.

So here we go again. What will happen if George W. Bush is elected and another Justice or two retire? Will middle-class women lose the right to take a pill or undergo a procedure in doctor's offices that will terminate unwanted early-stage pregnancies?

Probably not.

Will abortion again be illegal in America?

Probably not.

Will doctors across America be locked up for what are now routine procedures?

Probably not.

At the same time, we can expect even more severe restrictions on a woman's right to choose. Right now, there are three votes on the Court to get rid of Roe altogether and often four or five to impose costly, chilling and burdensome regulations on the exercise of that right by the patient and her doctor. The trimester approach of Roe, which recognized the mother's health as the only legitimate basis for government regulation prior to viability, has given way to an "undue burden" test, applicable to all regulations. Government is no longer required to be neutral with respect to how a woman exercises her right to privacy.

In states where legislatures are antichoice, abortion statutes get loaded up regularly with all kinds of time, place and manner restrictions, consent forms and waiting periods, and even bans on procedures, like the legal creation of a "partial-birth abortion." Then the Supreme Court sorts it out. What is more striking than the creativity of the various approaches is how easy it would be for them to win even more than they do if they just added a few "life or health of the mother" clauses here and there. They know that, too.

"Life's not fair," Jimmy Carter declared, when the Supreme Court upheld the right of state and local governments to deny public funding to poor women seeking abortions. In the years since, it's gotten more unfair. In the future, if George W. Bush wins, it will get even more unfair.

What Roe v. Wade now means is that if you're lucky enough to live in a place where doctors aren't afraid to do abortions and you have the money to pay for one, you don't have to bring cash in a plain envelope. It's safe and legal, until viability. In Los Angeles, you can open the phone book.

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"This is a case about federalism." No sentence better captures the Rehnquist Court's approach to criminal justice than this one, written by Justice Sandra Day O'Connor as the opening line of a 1991 decision. In fact, the case was about whether the State of Virginia could execute Roger Keith Coleman without further judicial review because his lawyers filed his appeal three days late. The Court told Virginia to go ahead. To the Rehnquist Court, criminal justice is all too often a technical matter best left to the states. Even with the state's most awesome sanction--the power to lock up and even kill human beings [see Stephen Bright, page 17]--concerns of equality and justice take a back seat to efficiency and police discretion. If George W. Bush is elected President, the hard-right Justices he promises to appoint would be likely to make matters even worse, wiping out precedents going all the way back to the Warren Court.

During Chief Justice Earl Warren's tenure (1953-1969) the Supreme Court virtually created the field of constitutional criminal justice. Extending the Bill of Rights provisions that protect criminal defendants to state criminal prosecutions and giving those provisions expansive readings, the Court created the Miranda warning, required state courts to exclude evidence seized in violation of the Fourth Amendment, guaranteed poor defendants lawyers paid by the state and authorized federal courts in habeas corpus proceedings to review state criminal convictions for constitutional error.

The Burger Court began dismantling these protections in 1969, and the Rehnquist Court has followed its lead. Its devotion to the task is especially impressive in light of what has happened to the criminal juistice system during Rehnquist's leadership. From 1986, the first year of his tenure, to the present, America's incarcerated population has doubled, from about 1 million to more than 2 million. And as the prison population has exploded, racial disparities in the criminal justice system have grown exponentially. Much of this is attributable to the war on drugs. From 1986 to 1991, for example, the number of white drug offenders in state prisons increased by 110 percent, but the number of imprisoned black drug offenders increased by 465 percent. From 1985 to 1995, black men's per capita incarceration rate increased at nearly ten times the rate of white men's. Today, one in twenty black men over 18 is in prison, compared with one in 180 white men.

To prefer efficiency over justice in these circumstances requires heavy blinders. The Rehnquist Court has not only willingly adopted them but has insisted that other courts wear them as well. In 1987, in McCleskey v. Kemp, the Court deemed a study by Professor David Baldus--the most sophisticated statistical showing of racial discrimination in the administration of the death penalty ever undertaken--to be insufficient to raise any equal protection concerns. Nine years later, in United States v. Armstrong, it barred pretrial discovery into a claim that the crack cocaine laws were being selectively enforced on racial grounds, even though the defendants showed that every one of the fifty-three federal crack cocaine defendants represented by the Public Defenders Office in the prior three years was black or Hispanic. In the Court's most recent term, Justice Rehnquist did not even mention race in his opinion for the Court in Illinois v. Wardlow, upholding the apprehension of a black man solely because he ran from police in a high-crime neighborhood. On claims of racial bias, the Rehnquist Court's attitude has been "see no evil, hear no evil."

Even when race is not explicitly on the table in criminal cases, it is often implicated indirectly. Nowhere is this more true than in the Fourth Amendment law governing police investigative practices. The Warren Court's interpretation of the Fourth Amendment grew out of its concern that an unregulated police force would target the community's least advantaged--a concern borne out by blacks' everyday experiences in the South during the civil rights era. In theory, the Fourth Amendment restrains police by presumptively prohibiting searches except where authorized by a warrant based on probable cause. Officers must satisfy an independent magistrate that there are objective reasons to suspect criminal behavior or evidence of a crime.

In reality, the Burger and Rehnquist courts have created so many exceptions to the presumption that it rarely applies. The rule doesn't apply, for example, to information shared with another. When a citizen puts her garbage out, the Court reasoned in California v. Greenwood (1988), she surrenders any privacy interest in its contents, so police need neither a warrant nor probable cause to snoop through trash bags. The same rule applies to bank records, phone records and any other information shared with another.

The Court has also permitted the police to conduct searches "by consent," without a warrant or probable cause, in settings that are inherently coercive. In Ohio v. Robinette (1996), the Rehnquist Court ruled that the police need not tell drivers during routine traffic stops that they are free to leave before requesting consent to search their cars. In essence, the Court permitted the police to use the coercion of a traffic stop to wrest "consent" from drivers. The same year, the Court ruled in Whren v. United States that the Fourth Amendment allows the police to use traffic infractions as a pretext to stop cars. Together these cases give a green light to racial profiling on the nation's highways, inviting police to use a traffic infraction to stop a car and search for drugs without any objective basis for suspicion. When the police need not offer objective justifications for their conduct, they all too often resort to racial stereotypes. Thus the real problem with the Court's "consent" doctrine is that by treating coercive encounters as consensual it imposes an unfair burden on young black men. That cost, so palpable to anyone paying attention to criminal justice in the eighties and nineties, does not even get a mention by the Rehnquist Court.

While the Rehnquist Court has not overturned Gideon v. Wainwright, the Warren Court's historic 1963 decision extending to poor criminal defendants the right to be represented by counsel, it has been extraordinarily tolerant of incompetent lawyering on behalf of the poor. Until last term, the Rehnquist Court had never found a lawyer's representation to be constitutionally deficient. As a result, states are under virtually no obligation to provide competent legal assistance to the poor.

Rehnquist's most pernicious attack on the Warren Court's criminal justice decisions, however, has not been in the rewriting of substantive constitutional rights but in the much less visible field of habeas corpus. The writ of habeas corpus allows state prisoners to go to federal court to review claims of constitutional error in their state criminal trials. A federal forum is critical because elected state judges are often reluctant to acknowledge constitutional error in criminal cases. The Rehnquist Court has consistently limited federal habeas corpus review, erecting obstacle after obstacle to prisoner relief. The most significant one, announced in Teague v. Lane, bars courts from affording relief to state prisoners on the basis of any law not clearly established at the time the defendant's conviction became final. These rules, far too complex to elicit much public attention, have meant that more and more constitutional errors simply go unremedied. (In 1996 the Clinton Administration, no friend of criminal defendants' rights, ratified the Rehnquist Court's approach when it agreed to habeas restrictions, but the principal damage had already been done.)

In the last week of this term, Chief Justice Rehnquist surprised many by writing the Court's decision upholding Miranda v. Arizona in the face of a 1968 federal statute that purported to overrule it. The Court's 7-to-2 decision in Dickerson v. United States was lauded as a major victory for criminal defendants, but of course it merely affirmed the status quo by declining to overrule Miranda. It is a sign of the Rehnquist Court's success in tirelessly cutting back on criminal defendants' rights that it is now considered a major victory merely to hold ground.

A federal court has ruled that Microsoft is a predatory monopolist and, stunningly, that the company should be broken into two parts. But the Microsoft opinion is the handiwork of one federal district court judge. Appeals lie ahead, and at the end of the road is the Supreme Court. The current Supreme Court majority has been reluctant to interfere with business conduct other than price-fixing. If George W. Bush should win the presidential election and appoint one or two Supreme Court Justices, we can expect yet more erosion of the antitrust landscape.

The Supreme Court once championed antitrust laws as valued tools to limit corporate power and to promote the autonomy, diversity and economic rights of people and firms without power. But the message of contemporary opinions is quite the contrary: Trust business, not government. It is fair to worry whether the Rehnquist Court has handed big business the license to do as it will, and if not yet, whether appointments by George W. Bush would complete the handover.

In one notable case, Liggett & Myers challenged the tobacco oligopoly by introducing low-priced generic cigarettes. In response, Brown & Williamson introduced a fighting brand, which it sold below cost to selected distributors for eighteen months for the sole purpose and with the effect of blunting Liggett's competitive challenge. Liggett sued for discriminatory and predatory pricing. A split Supreme Court threw Liggett's suit out. The strategy may have been unfair to Liggett, the Court said, but the antitrust laws have nothing to do with fairness, and price wars are good for consumers.

In the Microsoft case, District Judge Thomas Penfield Jackson declared Microsoft a predatory monopolist whose conduct has forestalled innovation and "trammeled the competitive process." Microsoft appealed from Jackson's judgment and confidently predicts a reversal. That confidence is not without some basis. The case will be heard either directly by the Supreme Court or, at the Supreme Court's choosing, by the Court of Appeals for the Washington, DC, Circuit, which two years ago overturned Judge Jackson's ruling that Microsoft's bundling of its web browser with its operating system probably violated a 1995 consent decree. Judge Jackson's final opinion in the current case documents Microsoft's predations in copious detail: its unremitting course of conduct and use of leverage to eliminate innovation that threatened to destroy Microsoft's operating-system monopoly.

When the Supreme Court hears the case, it is likely to find difficult questions of law: What standard applies to high-tech, fast-moving markets where a competitor's innovation can (in theory) wipe out a monopolist's power with sleight of hand? Indeed, can we even conceive of Microsoft as a monopolist when it faces the constant threat of technological obsolescence? Should courts or inventors/sellers decide whether browsers and operating systems are two products (and subject to the law against tying) or one integrated product and entitled to the deference of the judge? Should antitrust recede in the face of globalization and the unpredictable forces of technology? But note how even the formulation of the question is likely to inform the overall outcome. Is the real question whether Microsoft violated the law by strategies designed (and certain) to block rivals rather than serve computer users? Is the real, overarching problem: Whom should we trust--Microsoft or courts? Microsoft or antitrust law?

To complicate matters, politics has reared its head. The battle has spilled over to the Congressional arena and the race for the presidency. The country that prides itself on the rule of law could fall prey to the rule of money and the race for hegemony in the global economy. George W. Bush has already announced that he is not too fond of the antitrust laws, apart from the law against price-fixing. Microsoft has made huge contributions to both major campaigns, and it promises more to come. And Microsoft has, unsuccessfully, lobbied Congress to cut off the budget of the antitrust division of the Justice Department if it insists upon continuing its litigation against Microsoft.

But most significant is a President's power to appoint Justices to the Supreme Court. On the Court today there are Justices committed to upholding antitrust and Justices committed to chipping away its foundations. Justices John Paul Stevens and Antonin Scalia stand at opposite ends of the spectrum. Justice Stevens has an abiding concern about uncontrolled private power and is determined not to allow further erosion of the laws meant to control it. Justice Scalia has an abiding hostility to economic regulation and a resolve to minimize antitrust to protect "rational" private actors from "the sledgehammer of §2 [the monopoly law]." Scalia fears the power of government and never sees the power of business. Justice Stephen Breyer, a world expert in antitrust and economic regulation who has never been accused of antitrust populism, is the natural future voice for antitrust on the Court, but even Justice Breyer has been relegated to being a voice of dissent. On appeal from a Federal Trade Commission ban on California dentists' rules against discount advertising, Justice Breyer urged his colleagues to respect FTC findings and not to impose new burdens on antitrust plaintiffs, but he failed.

The Court is in delicate balance in matters of business power versus consumers. One or two Supreme Court appointments can make the difference.

Between 1947 and 1971, three Supreme Court decisions forged the law of church/state separation that remains largely in place today, though each case spawned controversies and doctrines that have threatened to engulf the principles for which the cases are remembered. The current Supreme Court is so divided on these fundamental questions that the appointment of one or two conservative Justices could well tip the balance and jettison the important principles enunciated in the three cases.

The first--Everson v. Board of Education (1947)--upheld the use of public funds to pay for the transportation of children to religious schools. The opinion, written by Justice Hugo Black, sets forth constitutional doctrine that still governs the Court's interpretation of the First Amendment provision that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." Justice Black wrote:

The "establishment of religion" clause of the First Amendment means at least this: Neither a state nor the Federal Government can set up a church. Neither can pass laws, which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a state nor the Federal Government can, openly or secretly, participate in the affairs of any religious organization or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect "a wall of separation between Church and State."

In upholding the New Jersey statute providing funds to bus parochial school students, Justice Black expressed concern for the safety of the children walking on highways. This "child benefit" concept provided a basis not only for noncontroversial forms of government aid to parochial schools, such as providing police and fire protection, but also for more controversial forms of assistance, such as the issuance of publicly supported bonds to finance the construction of facilities in church-related colleges and universities, the provision of diagnostic and remedial services, and various forms of teaching aids to parochial schools.

The Everson case highlighted another potential tension in the Constitution's religion clauses--that the denial of certain benefits to parochial schools might be viewed as depriving the schools of equal protection or abridging the children's rights, particularly their right of free exercise of religion.

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Since William Rehnquist became Chief Justice of the United States, the Supreme Court has decided only three cases dealing with gay rights, and in all of them the Court has been relatively respectful (if not always supportive) toward those who are gay, lesbian or bisexual. The decision this June, however, upholding by a single vote the right of the Boy Scouts to dismiss an openly gay scoutmaster, reminds us that true equality for gay people will arrive only when the Supreme Court is not controlled by Justices whose moral view of gay people is negative.

Liberals believe that moral judgments should not affect governmental actions, because individuals have certain rights--to equality, to intimate association, to privacy--that are not connected to the substance of their actions. But in reality, legislative and judicial decisions are often shaped by the moral assessments of legislators and judges. A case in point is Bowers v. Hardwick, decided in 1986, just before Rehnquist became Chief Justice. In Hardwick the Supreme Court upheld the constitutionality of the Georgia sodomy statute, which criminalized oral or anal sex engaged in by any two individuals, regardless of the individuals' gender or sexual orientation. Although the legal question should have been whether the constitutional "right to privacy" prohibited a state from criminalizing intimate sexual conduct, a 5-to-4 majority framed the question as whether "the Federal Constitution confers a fundamental right upon homosexuals to engage in sodomy." Chief Justice Warren Burger added a three-paragraph concurrence to underscore that condemnation of homosexual conduct was firmly rooted in Judeo-Christian moral standards.

During the next ten years, the country witnessed an increase in activism and visibility by the gay community. One symbolic aspect of this push for visibility was the decision of gay descendants of Irish immigrants to march in the St. Patrick's Day parades in New York City and Boston. The message these marchers wanted to send was clear: "Irish is good. Gay is good. Irish gay is good." But in a 1995 decision, Hurley v. Irish-American Gay, Lesbian, and Bisexual Group of Boston, the Supreme Court upheld the Boston parade organizers' refusal to allow the gay Irish group to march. The tone of the opinion, however, reflected a sea change in the Court's attitude toward homosexuality since Hardwick.

Justice David Souter, writing for a unanimous Court, explained that most parades are intended to express something, and the gay Irish group had a message: that gays "have as much claim to unqualified social acceptance as heterosexuals and indeed as members of parade units organized around other identifying characteristics." To Justice Souter, it was perfectly understandable that a group might wish to express such a message, which he described respectfully. The parade organizers did not wish to send such a message, however, and the First Amendment precludes the government from forcing people to utter speech they do not wish to utter.

While gay Irish groups have never managed to march in either the Boston or New York parade, gay people have succeeded in getting some 165 laws and ordinances enacted to prohibit government, private employers and private businesses from using sexual orientation as a basis for adverse actions. Proponents of these laws insist they are neutral on the morality of being gay and simply establish equality. But opponents contend that this liberal neutrality rhetoric ignores real moral disagreements over gay sexual conduct. People who believe homosexuality is morally wrong cannot adopt a "live and let live" attitude toward the passage of sexual-orientation nondiscrimination laws.

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In the area of labor law it's not the Supreme Court that's the primary problem, it's the law itself. If the toothlessness of the National Labor Relations Board allows the bosses to violate the law at will, with no truly serious penalty, there is nothing any Court, even one full of William Kunstlers, can do to bring back a meaningful right to organize.

So my concern is not what the Supreme Court might do under a Bush Administration. It's highly unlikely that the present law will change. My worry is that the conservative Justices Bush might appoint will be around long after he leaves office. If a more progressive administration succeeds him and pushes through new labor law that would give US workers a real right to join unions, a Bush Supreme Court packed with Antonin Scalia and Clarence Thomas types would gut it. Suppose, for example, that a future Democratic Congress, stripped of a filibuster, passed a law similar to Canada's, where if enough workers sign cards saying, in effect, they want a union, there is no election--a union is in place. The Bush Supreme Court might declare that such a law violates the employer's First Amendment right to present the anti-union view, to "speak" to (i.e., to intimidate, threaten) the workers before they sign the cards.

Right now, however, what hurts labor, day to day, is the wins and losses in the lower courts. That's because in labor and civil rights, the Rehnquist Court sometimes works by proxy, and many of the lower appellate courts (e.g., the District of Columbia, the Fourth Circuit) are worse. In the 1999 term, the Supreme Court gave opinions on only seventy-five cases, mostly ones that the Justice Department asked it to take. Just by turning down or not reading cases, the Court can effectively "rule" without ruling. Consider the one real labor-law reform attempted by the Clintonites: to stop federal purchases from employers who use striker replacements. The right-wing Court of Appeals for the District of Columbia Circuit struck down Clinton's power to do this by regulation. The Supreme Court refused to hear an appeal. The Clintonites probably would have lost anyway, but this is a good example of how a conservative Supreme Court, by proxy, can block an attempt to restore union power.

Still, the Rehnquist Court has handed down some bad decisions. In Lechmere v. NLRB (1992) Justice Thomas's opinion was very touchy about the employer's property rights in a union organizing drive. It made clear, again, the policy of keeping nonemployee union organizers off the property, except in circumstances (vague) when there is no other way to communicate with workers.

Apart from strict labor cases, there are many rulings from the Rehnquist Court on class actions, federalism and other areas that indirectly shrink labor's power. Why does the High Court's taste for states' rights seem to whet when it can hurt a public union--as it did in Alden v. Maine (1999)? Apart from its states' rights silliness, the Alden opinion bars more than 4 million state workers from suing under federal wage laws in state court.

Alas, the real advance in workers' legal rights has come mostly in state courts. Some state courts have set limits on certain types of firings. That's something, but it does little to help Americans raise wages or reduce income inequality.

To be fair, in civil rights, we owe a bit to the Rehnquist Court, and to Scalia especially. In cases in the late eighties, the Rehnquist forces so vigorously whacked away at Title VII and related laws that the Democratic Congress was roused to action. Instead of just reversing these bad cases, Congress expanded the remedies for Title VII violations. Now we have jury trials and punitive damages. We owe at least a little thanks to Justice Scalia. Almost a year ago, a former clerk of the Court complained to me about how badly we labor types presented those cases in the eighties. "And," she said, "that's why we got those bad rulings from Scalia." Ah, but thanks to our bungling, we expanded civil rights remedies.

Only now, if we bungle with a Republican Congress, such mischief would linger on. This may be so with the Americans With Disabilities Act. Incredibly, last year the Court parsed the term "disability" to exclude, arguably, even an amputee with prosthetic limbs. In his majority opinion, Justice O'Connor tried to "intuit" what Congress "must have meant"--something that conservatives, as formalists, are famous for saying they never do.

Never, except when it hurts disabled workers. But in labor law especially, judges often rule from scratch. It often seems that the whole country has, without knowing it, drifted into a civil law, European-type legal system, in which we don't use precedent in the old Anglo-American common law way, for the simple reason that there isn't any precedent--especially with new laws like ADA and in the realm of civil rights, where the judges have to "make it up" the most.

Precisely because we have to make it up more and more, we should care who's on the Court. In labor, especially, by making it up for the decades to come, the Rehnquist Court et al. will help decide how much the rest of us Willy Lomans can get out of the lives we so recklessly throw away at work.

Much of the debate swirling around the upcoming election focuses on the next President's power to shape the Supreme Court--but it would be a mistake to overlook the enormous impact the next President will have on the appellate courts as well. Each year the Supreme Court decides fewer cases. In the seventies and eighties, it routinely heard about 150 cases a year. The typical docket for the Rehnquist Court is less than 100.

This trend toward fewer Supreme Court rulings gives the appellate courts vastly more power. In fact, some experts call the appellate courts "regional Supreme Courts" because so often they become the forums of last resort for plaintiffs bringing civil rights, abortion and environmental litigation.

Appellate court appointments are rarely constrained by the kind of senatorial influence and patronage that frequently govern the selection of district court judges, so the President generally has a freer hand in making these appointments. Conservative activists have long been keenly aware of the importance of the appellate courts. Presidents Reagan and Bush both made it a priority to fill appellate court vacancies quickly, ultimately packing them with right-leaning judges whose agendas were to reverse years of progress on civil rights and the environment. Reagan and Bush appellate court appointees include such well-known ideologues as Robert Bork, Daniel Manion, Douglas Ginsburg, Frank Easterbrook and Alex Kozinski.

Because of the critical importance of the 179 federal appellate seats, Senate Republicans have deliberately delayed confirmation of nominees during the Clinton era. Of the thirty-four judges confirmed last year, only six were to courts of appeals. This year is unlikely to be better; ultraconservatives in the Senate will do everything possible to avoid filling the twenty-two appellate court vacancies until after the presidential election.

Consequently, even after seven years of Democratic rule, nine of the thirteen courts of appeals remain in the control of Republican appointees. Many of these judges, such as those on the Fourth and Seventh Circuits, have shown open hostility to civil rights, striking down such crucial protections as affirmative action, the Violence Against Women Act and the 1966 Miranda decision.

Judicial hostility to environmental protections is also common. In 1999 two panels of the Court of Appeals for the DC Circuit handed a victory to polluters, overturning longstanding EPA standards reducing the ozone that exacerbates lung disease and asthma. In that case, the Reagan-appointed judges adopted an argument set forth by a conservative lawyer, even though the argument ran contrary to sixty years of legal precedent.

Senate Republicans have also created a judiciary that is shamefully unrepresentative of the public it serves. It wasn't until this past summer that the number of African-American judges serving on the appellate courts reached the same level as when President Carter left office twenty years ago. More than half the country's circuit courts lacked either an African-American or a Latino jurist--or both--at the end of 1999. The conservative Fourth Circuit (which includes Maryland, North Carolina, South Carolina, Virginia and West Virginia) has never had an African-American judge, despite the fact that the region has the largest percentage of African-Americans in the general population of any circuit.

While North Carolina Senator Jesse Helms is notable for actively blocking the nominations of African-American judges to the Fourth Circuit Court, other GOP senators have contributed to the delays in appointments across the federal judiciary. In the past year the Senate set a record for the longest delay imposed on a nominee: Ninth Circuit Judge Richard Paez, a Hispanic-American, was forced to wait more than four years before the Senate finally scheduled a vote and confirmed him this year.

Unfortunately, in many ways the Clinton Administration has acquiesced in the Senate majority's crusade to strip away presidential appointment power. Clinton's strong desire to avoid confrontation over judicial appointments has led him to draw nominees from a limited pool, for the most part avoiding public interest lawyers and those in private practice with extensive pro bono experience. The regrettable result is that the Clinton Administration has failed to restore balance to the federal court system after twelve years of strongly ideological conservative appointments.

Americans deserve better. We count on federal judges to protect our civil rights, our environment and our most basic freedoms. The next President could well appoint fifty or more circuit judges. We need a President who will appoint federal judges--at all levels--who will advance protections against discrimination and environmental destruction. And we need a Senate that will stop using political gamesmanship to delay and block qualified judicial appointees.

George W. Bush has publicly cited Justices like Antonin Scalia and Clarence Thomas as the kind of "strict constructionists" he will appoint to the Supreme Court. Scalia and Thomas have long been the favorites of right-wing religious, political and legal activists eager to see the Supreme Court roll back decades of progressive rulings.

People for the American Way Foundation recently released Courting Disaster, the result of a six-month analysis of the concurring and dissenting opinions of the two Justices. It asks, "If these opinions were shared by a majority of the Court, how would that change the outcome of the Court's decisions?" The answer is chilling. If those angry dissents and minority concurring opinions were majority rulings, the result on issue after issue would be a radical, reactionary shift in US law.

Many people are worried about the Court's future rulings on reproductive rights. It's true that Justices Scalia and Thomas are eager to overturn Roe v. Wade, and they need only two more votes to do it. Maybe only one--Justice Anthony Kennedy's vote supporting the ban on so-called partial-birth abortion has been interpreted as an indication that he is having doubts about his 1992 vote reaffirming Roe v. Wade. But much more than reproductive rights is at stake.

As the contributors to this issue document, the Supreme Court is already dominated by conservative Justices who are aggressively promoting a troubling new theory of federalism and states' rights that is drastically restricting the power of Congress to protect Americans' rights and to address serious national problems. But even this conservative activist majority has frequently not been willing to go as far as Scalia and Thomas want. And that's why the prospect of a Scalia-Thomas majority on the Court is so ominous.

Here's just one example: In a 1994 voting rights case, Justices Thomas and Scalia advocated a position that, according to four of the other Justices, was so "radical" it would have meant overturning or reconsidering twenty-eight previous Supreme Court rulings that the Voting Rights Act of 1965 should be interpreted to prohibit racial discrimination in all aspects of voting.

There's much more. A Scalia-Thomas majority would exempt elections for state judges from all provisions of the Voting Rights Act, permit sex discrimination in jury selection, eliminate affirmative action, restrict remedies for discrimination while making it harder to prove discrimination in the first place and hold that improper and unnecessary institutionalization of disabled persons would no longer be considered a violation of the Americans With Disabilities Act.

Religious liberty would suffer under a Scalia-Thomas majority hostile to the principle of church-state separation. Such a Court would overturn a series of precedents protecting the rights of students to be free from religious coercion in public school settings. The floodgates would be opened to direct government funding for religious schools.

A Scalia-Thomas majority would weaken the right to strike and bargain collectively, make it easier to fire workers for political reasons and allow employers to deceive workers about the solvency of benefits plans. Scalia has ridiculed laws that protect workers from sexual harassment.

The federal government would be barred from stopping the destruction of endangered species on private land. Local governments' power to protect the environment would be restricted.

Campaign finance reform would be virtually impossible under a Scalia-Thomas Court, which would throw out any and all limits on campaign contributions and spending.

Sensible gun control legislation would be struck down.

What is at stake is the legal and constitutional framework under which the nation will operate for decades to come. Radical right leaders know they're just one election away from winning their entire political agenda, and they're mobilizing voters with the prospect of a right-wing-dominated Supreme Court. It was their vocal "no more Souters" campaign that led George W. Bush to explicitly name Scalia and Thomas as his models. And it has now been six years since the confirmation of the Court's most recent appointee, Justice Stephen Breyer. Only once in our history--177 years ago--have we gone so long between appointments.

Indeed, the future of the Supreme Court is the most important issue in the most important election year since 1932. Progressive Americans should treat it that way. The radical right does.

For many of the 3,682 men and women on death rows across the nation, and their families, this election is literally a matter of life or death. With one or more appointments to the Supreme Court, the next President will probably change the balance of power in the Court's review of capital cases. The Court could play a greater role in restricting the use of the death penalty, or it could give the states free rein to carry out more and more executions.

Neither George W. Bush nor Al Gore is going to appoint Justices like the late William Brennan and Thurgood Marshall, who believed that capital punishment violates the Constitution's prohibition of cruel and unusual punishment. But the next President's appointments will have an enormous impact on how much death is used as a punishment in the next several decades and the fairness of the process by which people are denied their lives and liberty in the criminal courts.

Bush has expressed his admiration for Justices Antonin Scalia and Clarence Thomas, who have vigorously maintained that the Constitution allows states to execute just about anyone--children, the mentally retarded, even the innocent--and provides virtually no protections, not even a decent court-appointed lawyer, to a person facing death.

Their approach to capital cases is much like the one taken by judges in Texas, which dispatches people to its busy execution chamber in assembly-line fashion. Bush has defended the Texas system, claiming that the condemned had "full access to the law," while presiding over 144 executions during his six years as governor. No other state has carried out more than eighty executions in the past twenty-five years.

Al Gore will probably appoint moderates like the two Justices appointed by Bill Clinton, Ruth Bader Ginsburg and Stephen Breyer, whose votes reflect their views that the Constitution restricts the ways in which states may impose death and that the federal courts have a role to play in deciding what those restrictions are and in keeping the death penalty within them.

Many of the Court's most important capital decisions have been decided by a 5-to-4 vote. In those cases the outcome has usually been determined by Justices Sandra Day O'Connor and Anthony Kennedy. When they join with Scalia, Thomas and Chief Justice William Rehnquist, the death sentence is upheld--as in two 5-to-4 decisions in Virginia cases this year. In one of these, Weeks v. Angelone, they upheld a death sentence even though the judge misled the jury regarding how it was to reach its sentencing decision. In the other, Ramdass v. Angelone, the defendant was not allowed to tell the jury that he would not be eligible for parole if sentenced to life in prison instead of death. Ginsburg, Breyer, John Paul Stevens and David Souter dissented in both cases.

If either O'Connor or Kennedy joins the Court's four moderates, the outcome is different. Just how delicate the balance is was illustrated by the 1989 case of Penry v. Lynaugh. John Paul Penry is a mentally retarded man sentenced to death in Texas. Justices O'Connor and Kennedy were part of a 5-to-4 majority holding that the Constitution does not prohibit the execution of the mentally retarded, but Justice O'Connor cast the critical fifth vote for setting aside Penry's death sentence because the jury was not instructed that his retardation should be considered in mitigation.

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Whom do you want to nominate Justices for the Supreme Court in the
next four years? No issue is more vital in the race between Democrat
Al Gore and Republican George W. Bush--repeat, no issue is more
important than the makeup of the next Supreme Court--and therefore
the future outlook for reproductive rights, civil rights, campaign
finance reform, environmental protection and perhaps much, much more.

No issue is more crucial, for two reasons. First, no matter what the
next President or Congress may do or think, among the three branches of
the federal government, the Supreme Court is often first among supposed
equals, wielding more authority than either of its counterparts through
its power to declare unconstitutional the actions of Presidents (such as
Harry Truman's seizure of the steel mills in 1952), as well as
enactments of Congress or the state legislatures (such as those
attempting to validate prayer in public schools).

It was the Supreme Court, of course, that held in Brown v. Board of
Education in 1954, one of its most historic decisions, that public
school segregation violated the Constitution. That decision opened not
just the schoolhouse door but the gate to the modern civil rights
movement, which in the past half-century has so nearly transformed the
nation.

It was the same Court, however--different Justices in different times,
but with the same powers--that in 1896 upheld a Louisiana "separate but
equal" law, ushering in the six long decades of racial segregation that
were not effectively ended until Brown (and not even then, in
some areas). Even earlier, in 1857, the Court's infamous Dred Scott
decision held that black people had no rights white people were
bound to respect and that Congress could not prohibit slavery in the
territories. The Civil War followed not long after.

So despite the enmity earned in the twentieth century by the Warren
Court in the fifties and sixties for its controversial decisions
(Brown, Miranda, Baker v. Carr), the Supreme Court
has not always been--and need not necessarily be in the future--a
bulwark of liberal attitudes. In the thirties, in fact, Franklin
Roosevelt undertook his ill-fated "court-packing" scheme because of a
series of Court rulings--such as one finding unconstitutional his
National Industrial Recovery Act--that he thought were crippling his New
Deal programs. In perhaps his worst political defeat, FDR failed to
"pack" the Court, but the threat may have achieved his objective in
several subsequent decisions--upholding, for example, federal power to
prohibit shipment in interstate commerce of goods manufactured in
violation of wage-and-hour laws. This was a startling about-face from an
earlier ruling.

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The Rehnquist Court has revived Ronald Reagan's attempts to gut the New
Deal, Great Society and civil rights laws enacted to help the have-nots
of American society. Its weapon of choice has been the states' rights
doctrine. Just as during the New Deal, when this doctrine was also
invoked against the expansion of federal power that was used in the
interests of ordinary people, the Rehnquist Court's seemingly neutral
states' rights rhetoric and argumentation have been a fig leaf to cover
up more tangible interests like race and money.

This is not new. Throughout our history, states' rights rhetoric has
been used for regressive causes. It has been an especially favored
strategy since the Civil War, because the two great transfers of power
to the federal government at the expense of the states, at which this
strategy has been aimed--the post-Civil War amendments and the New
Deal--have also been reform movements threatening conservatives with
respect to race and class.

The anti-Washington leader on the Court is Chief Justice William
Rehnquist. Raised in a Roosevelt-hating family, he has been an
archconservative since his earliest days. His first opportunity to
strike at federal power came in 1976 in National League of Cities v.
Usery, a case involving the 1974 amendments to the Fair Labor
Standards Act, which extended minimum-wage and maximum-hours
requirements to state and local governments. Cobbling together a 5-to-4
majority, he got the Court to strike down the 1974 extension.

For authority, Rehnquist looked to the Tenth Amendment, which provides
that "the powers not delegated to the United States by the
Constitution...are reserved to the states." The amendment does not,
however, specify what is "reserved," so Rehnquist created a new doctrine
based on the "policy" of the Tenth Amendment, which he said authorized
the courts to prohibit the federal government from regulating the
states' "traditional functions" if doing so "impaired their sovereignty"
and "their ability to function effectively in a federal system."

The result was judicial confusion, as courts struggled with these
vacuous criteria. After nine years, the Court overruled National
League of Cities, but in 1990 the tide turned again. Avoiding
constitutional issues, a 5-to-4 majority in Gregory v. Ashcroft
interpreted a federal law banning age discrimination as not applying
to state judges.

After Clarence Thomas joined Anthony Kennedy, Sandra Day O'Connor and
Antonin Scalia on the Court in 1991, cementing the conservative
majority, the constitutional assault on federal power went into high
gear. The first target was a radioactive-waste-disposal statute, which
was based on a compromise that the states themselves, including New
York, had hammered out. The act imposed sanctions on those states that
didn't implement the statute, and for this reason, the majority struck
it down in New York v. United States (1992). Unable to rely on
specific language in the Constitution, the majority used its own
conception of the constitutional "framework" and "structure," and
condemned the act for "commandeering" state officials to implement it,
ignoring in the process numerous historical examples of state
implementation of federal laws. "Accountability is...diminished" by such
state enforcement, said Justice O'Connor for the Court, arguing that
state officers who had to implement burdensome federal directives would
be blamed for them. The argument is ludicrous--people in the
radioactive-waste business knew the rules were set by the Feds. The
Court used the same dubious "accountability" reasoning five years later
in Printz v. United States to slap down the Brady gun control
bill's requirement that local law enforcement officers check the
backgrounds of prospective gun purchasers.

The hollowness of the conservatives' concern for states' rights was
revealed in the New York v. United States decision. The
radioactive-waste law had been promoted by the states themselves. But
Justice O'Connor rationalized that the anticommandeering principle was
not for the benefit of the states but to preserve "the liberties" of the
people; the states' consent to the law was irrelevant. But how are the
people's "liberties" protected when the wishes of their elected
representatives are ignored? And is not accountability diminished if
those representatives cannot act as they believe their constituents
want?

The conservative majority's fickleness toward state interests is not a
rare phenomenon. They have had no trouble striking down hundreds of
state and local affirmative action plans, voluntary desegregation plans
and electoral districting plans that created majority-black districts.
And they haven't hesitated to strike down zoning and environmental laws
in the name of property rights.

Four years after New York v. United States was decided, the
trickle of antifederal decisions became a flood. It began with an attack
on the commerce clause, the source of federal power over the national
economy. Recognizing the interrelatedness of almost all parts of the
economy, the Court had upheld every assertion of federal power under the
commerce clause since 1937. In 1995 that changed. In Lopez v. United
States the usual 5-to-4 majority struck down a federal law
criminalizing the possession of guns in a school zone, because no
economic transaction was involved and there was no Congressional finding
of an effect on interstate trade. The obvious impact of school violence
on the national economy was dismissed, and the fact that most guns move
in interstate trade was ignored. Four years later, in United States
v. Morrison, the same 5-to-4 majority used the same argument to
strike down the Violence Against Women Act: It was not an "economic"
matter, even though there was "a mountain of data" that violence against
women costs the economy billions each year. Nor did the Court give any
weight to the overwhelming state support for the act.

In 1996 the Court also resurrected a state sovereign-immunity doctrine
that had been repudiated just seven years earlier. The Eleventh
Amendment denies federal courts jurisdiction over suits by citizens of
one state against another state. Over the next four years, the
conservative bloc used this doctrine, which is based on the now
discredited "the King can do no wrong" philosophy, as the basis for
allowing a state to halt damage suits against itself by any person, even
in state courts, and even if the state engages in what is ordinarily
private business that wrongly damages someone. Nothing in the language
of the Constitution creates such an immunity, and certainly not for
federally created rights. That did not faze these Justices, however, all
of whom have regularly excoriated liberal judges as "activists" when the
latter sought to promote individual rights and did not stick closely to
the text.

The next year, the conservatives turned to the Civil War Amendments.
Section 5 of the Fourteenth Amendment authorizes Congress to enforce
that amendment by appropriate means. In 1990 the Court narrowly adopted
a Scalia opinion overturning a twenty-seven-year-old doctrine by which
religious minorities were exempt from having to comply with unnecessary
burdens that interfered significantly with their worship (Employment
Division v. Smith). Congress responded by almost unanimously passing
the Religious Freedom Restoration Act (RFRA) to reinstate that
possibility.

It didn't last long. In a 6-to-3 decision, the Court ruled that Congress
had no power to enlarge constitutional rights beyond the limits the
Court had set. RFRA failed as a remedy, according to the Court, because
it burdened too many state activities too much--even though the states
had lived comfortably for over a quarter-century with the doctrine RFRA
sought to reinstate.

This past term, the conservative majority struck twice at Section 5,
once in dismissing a suit by older workers under the Age Discrimination
in Employment Act (Kimel v. Florida Board of Regents) and again
in the course of overturning the Violence Against Women Act, despite
support for the act from thirty-six states. This coming term the Court
will consider suits by state employees against a state for violating
disability rights statutes; their prospects are bleak.

There have been a few isolated losses for the states' rights bloc:
Kennedy jumped ship to make a 5-to-4 majority to strike down a state
term-limits law, and this past term the Court upheld a law banning the
sale by states of private data collected from driver's-license
applications. But such decisions have been few and far between.

Academic commentators disagree on how harmful the conservatives'
federalism rulings have been. They have unquestionably spawned confusion
and litigation over federalism issues, thereby overburdening a federal
judiciary that is already creaking under the weight of its caseload. And
a good number of Americans--how many is impossible to tell--have been
denied a meaningful remedy for blatant violations of their rights under
federal law.

One thing is clear: All of US history demonstrates unambiguously that
have-nots and outsiders fare poorly at the state level. The Rehnquist
Court's paeans of praise for state government are belied by reality.
Voting turnout in state and local elections is notoriously low. Many
state legislators are ill-paid part-timers without staff, and are at
least as susceptible to lobbyists as Congress, if not more so. Conflicts
of interest are rife--one recent study found that one-fifth of state
legislators serve on legislative committees that oversee their private
businesses. And concern for the poor, the weak and people of color is
often negligible or nonexistent.

If the current federalist assault on the federal government
continues--and if George W. Bush becomes President it will--those
already shortchanged by our society will do even worse.

Loneliness burdens most college freshmen, though precious few find lasting relief from it in the realm of ideas. So it happened for one freshman in 1935, when he left behind the isolation he had experienced at Texas A&M for the University of Texas and "the big discourse," his term for the Enlightenment humanism that extended him both refuge and inspiration. Once a diffident student who reserved his compositions for private display, he quickly gave to this tradition the allegiance of an apostle. At age 20, he wrote his father: "I work and live very rapidly these days. Mine is a pen from whose point much ink will flow and some day into the brains of the populace. But let that be."

Much ink did indeed flow from the pen of C. Wright Mills. As a professor of sociology at Columbia University, Mills wrote prodigiously throughout the forties and fifties, publishing in major newspapers and journals of opinion and in "little magazines" in equal measure. Two of his books, White Collar (1951) and The Power Elite (1956), sold widely outside the academy, exerting a profound influence on the early New Left. A heart attack in March 1962 cut short his life at 45 years. But ten books and nearly 200 articles, essays and reviews had already won him an international reputation. His books, now translated into twenty-three languages, remain widely circulated, as these anniversary editions and a new book of letters and autobiographical writings indicate.

Mills departed Austin in 1939 for doctoral work at the University of Wisconsin. Two years later, he completed a dissertation that fused the pragmatist philosophy he had learned at Texas with his new métier, sociology. "A Sociological Account of Pragmatism" disappointed him. Yet that dissertation, and particularly three innovative articles on the sociology of knowledge that preceded it, impressed influential members of the profession. In December 1940 Robert Merton, himself a theorist only six years Mills's senior, privately named him one of the three most promising sociologists in the nation.

A young prince in a rising discipline, Mills accepted an associate professorship of sociology at the University of Maryland, but he turned much of his attention to the lonely task of left-wing political agitation. In these years, whispers of a "permanent war economy" traveled among New York's Trotskyist community, to which Mills began to appeal for contacts, and his political writings expressed fear that monopoly capitalism was generating a proto-fascist domestic apparatus underwritten by cultural insensibility and mass discipline.

Unusually sensitive to the fast-changing character of liberal social structures, Mills proved impervious to the bitter ironies of reform. Unlike so many of his elders, he did not know firsthand the capacity of entrenched power to co-opt and redirect dissent; nor had he suffered the lost promises of international Communism. "I did not personally experience the thirties. At that time, I just didn't get its mood," he explained in one of the 150 letters published in C. Wright Mills: Letters and Autobiographical Writings, a beautifully edited volume by Kathryn Mills with Pamela Mills (his daughters). "Only with the onset of World War II did I become radically aware of public affairs."

Released from military duty because of hypertension, Mills viewed the war as "a goddamned bloodbath to no end save misery and mutual death to all civilized values." He harbored no sympathy for the fresh scars of erstwhile agitators. In an essay published in 1942 in the New Leader, he observed that their chastened radicalism belonged to a more thoroughgoing "crisis in American pragmatism," in which private religious introspection, not political action, now served as the preferred sphere for the full development of the human personality. This kind of retreat into religion, Mills complained, neglected a "social theory of the self" (which he had explored in his early writings on the sociology of knowledge). Thereby, it left individuals intellectually powerless to affect the massive secular forces that increasingly overwhelmed them. The move away from politics "offers a personal and accommodative celebration of the modern fact of self-estrangement." (Similarly, he would later christen the "cult of alienation" that enveloped postwar literature merely as "a fashionable way of being overwhelmed.") Already by 1942, he had come to regard commitment to humanist politics and ideas as a spiritual enterprise that demanded steadiness of public purpose in the face of illiberal forces. This disposition, part evangelical, part stoic, would thereafter guide his criticism of US institutions.

Mills published widely during the mid- and late forties, furthering his formidable reputation for precocity even while shifting his research interests from the sociology of knowledge to stratification, labor and social psychology. In 1945, an invitation arrived from the empiricist Paul Lazarsfeld to join the Bureau of Applied Social Research at Columbia University, and he left College Park for New York.

The New Men of Power appeared three years later, the first fruit of Mills's work for the bureau. Surveying the origins, attitudes and party affiliations of 500 labor leaders, the book aspired to an objective, collective portrait that would also become "politically relevant." "The most democratic societies of their size in the world," labor unions, he concluded, nonetheless possessed the tendencies of the political economy that had shaped them: the elaboration of hierarchy and bureaucracy, the exclusive reliance on the major parties, the nervous impulse to conserve recent gains, the demotion of labor intellectuals to the role of gadfly or technician. Could labor leaders, Mills asked, a new "strategic elite" in the contest for power, successfully resist such trends of "the main drift"?

Somewhat like the labor leaders he studied, Mills was managing a host of positions and influences in his thought. The New Men of Power contained traces of Wisconsin progressivism, Trotskyist socialism, a concept of "publics" imported from John Dewey, the standard implements of social science research--even the rebellious spirit of the Wobblies. This pluralism made possible a salutary absence of dogmatism, and the book gathered reviews appreciative of its political energy and broad vision. He finished, though, with an uncertain consideration of prospects for an accord between labor leaders and labor intellectuals, which he thought vital for any recrudescence of independent politics: "Never has so much depended upon men who are so ill-prepared and so little inclined to assume the responsibility."

White Collar signaled a rapidly maturing social theory. It also commenced Mills's rise to a peculiar place in American intellectual life. Although many professional sociologists greeted the book with indifference or distrust, others hailed it as a brave, provocative examination of the psychology of class. It became a bestseller, evidence that independent radicalism could find a place even during the dark nights of McCarthyism.

Mills, in turn, looked with growing confidence outside his profession for authority as a critic. Over the course of the decade, cold war dissidents and uneasy students repaid his efforts in direct proportion to his escalating boldness. "I can no longer write seriously without feeling contempt for the indifferent professors and smug editors of the overdeveloped societies in the West who so fearlessly fight the cold war, and for the cultural bureaucrats and hacks, the intellectual thugs of the official line," he announced in The Causes of World War Three (1958), an antiwar pamphlet that sold a remarkable 100,000 copies. In Listen Yankee (1960), a pro-Castro polemic that sold more than 400,000 copies, Mills called the United States a "reactionary menace" and proclaimed his independence even from the growing student movement that drew inspiration from his example. "I cannot give unconditional loyalties to any institution, man, state, movement, or nation. My loyalties are conditional upon my own convictions and my own values."

As the New Left gathered momentum, Mills seemed the man for the moment. Agitating for "our own separate peace," with Communist intellectuals, he made official visits to Cuba and the USSR, traded counsel with Sartre in France, talked up E.P. Thompson to the Cubans and Carlos Fuentes to US publishers. One year before his fatal heart attack, he wrote to his parents about the obligations he supposed his writings had brought him. "I know now that I have not the slightest fear of death; I know also that I have a big responsibility to thousands of people all over the world to tell the truth as I see it and to tell it exactly and with drama and quit this horsing around with sociological bullshit." A self-proclaimed "permanent stranger" in a nation he could not leave, Mills died a triply distinctive figure of US culture: a radical intellectual celebrity.

The body of literature that now surrounds Mills is generally distinguished only by its tendency to respond to this outsized reputation and audacious personality, rather than to the ideas they embroidered. To many of his colleagues, he appeared an abrasive and even irresponsible sociologist, his contentious manner hardly worthy of the detached, scientific ideals to which their discipline aspired.

Such is the guiding spirit of last year's Collaboration, Reputation, and Ethics in American Academic Life by Guy Oakes and Arthur Vidich, professional sociologists. Oakes and Vidich recount the bitter disputes between Mills and the refugee sociologist Hans Gerth, his friend and collaborator on two books, Character and Social Structure (1953), a textbook, and From Max Weber (1946), an influential collection of Weber translations. Mills and Gerth quarreled incessantly over credit and control of these works. Theirs was a complicated relationship that these authors reduced to a cynical, one-dimensional interpretation aimed at little more than proving Mills a charlatan and misanthrope. Though the book claims to offer a minor advance in "the history of academic ethics," it fails to discuss prevailing standards of scholarly publishing in a fast-changing academy, against which we might most clearly perceive the genuinely difficult issues involved. Instead, Oakes and Vidich draw inferences from a batch of letters, some of them missing pages, and from an incomplete account of Mills's swift rise to prominence. Placing him in the worst possible light at every turn, they refuse to offer readers the opportunity to reach conclusions contrary to their own.

The competing portraits of Mills as leftist hero and Mills as academic villain each tend to caricature a stubbornly complex man. They fix his character within the very roles that he constantly tried to elude or combine, imposing evaluative criteria that disregard his own terms and habits of self-understanding. Insofar as they attribute his ideas to his eccentric personality, moreover, they deradicalize the work. What remains to be explored, among those who would take his books with their intended seriousness, are the foundations of his undeniable popularity.

Throughout the fifties, Mills, borrowing freely from Dewey, Lippmann and Mead no less than from Veblen, Marx and Weber, always returned to a theme that connected him to the decade's subterranean rumblings: the abstracted character of postwar life. Society, culture and politics, he insisted, had grown bloated by the conceits of formalism. An "overdeveloped" supersociety, the United States had fattened on a feast of decayed symbols, which offered only outdated fragments of "the whole of live experience." Public life therefore yielded not morally relevant ideas but tremulous moods and slogans. It produced not craftsmen but "cheerful robots," not the means to use civil liberties but a rhetoric in their abstracted defense, not leaders of reason but paeans to the reasonableness of leadership. Massive, centralized institutions had arisen ("big, ugly forces"), by "drift" and by "thrust" alike. Yet corresponding pictures of reality failed to amplify what terrible challenges these institutions posed to "genuinely lively things."

Mills argued that white-collar workers and other Americans, bereft of reliable firsthand portraits of everyday reality, suffered confusion and powerlessness, trapped by the detritus of outworn images fixed in the social worlds of the eighteenth and nineteenth centuries. In national politics, a dominant liberalism did not suffocate alternatives, as some Marxists believed. Rather, a "liberal rhetoric" diverted attention from a more important consideration: There existed no coherent ideologies of any sort to connect the universalist ideals transmitted by liberalism and Marxism to the colossal social structures that now threatened to overwhelm them. Reason and freedom did not inevitably increase, as the progressive teleologies had assumed. But no satisfactory projects for the modern realization of these ideals had evolved accordingly. Now, they suffered eclipse before the impersonal forces of bureaucratization, centralization and rationalization so characteristic of a mass society. The "big discourse" stood homeless.

Alive to this gap separating experience and consciousness, he suggested, opportunistic elites appropriated and managed "second-hand worlds" in the service of a pecuniary standard of value. The money standard, the only measure of value permitted to flourish, in turn made possible the commodity culture that spun ever faster around the axis of the US class structure. "Images of American types have not been built carefully by piecing together live experience," he remarked in White Collar. "Experience is trapped by false images, even as reality itself sometimes seems to imitate the soap opera and the publicity release." The "tang and feel" of American life meant "shrill trivialization" of culture by the mass media and hypnotic manipulation of psychic existence by moneyed elites. Workers had become possessed by the logic of "personality markets." Citizens were "strangers to politics. They are not radical, not liberal, not conservative, not reactionary; they are inactionary; they are out of it." Even leisure, where people might expect to revivify their creative instincts, betrayed its promise. For the absence of pictures of reality autonomous from the commodity nexus allowed only formal options emptied of real substance. "The most important characteristic of all these [leisure] activities is that they astonish, excite, and distract but they do not enlarge reason or feeling, or allow spontaneous dispositions to unfold creatively."

Much the same attack on formalism propelled The Power Elite, Mills's "good loud blast at the bastards, one they can't ignore maybe." The selection and formation of leaders in government, business and the military, he argued, occurred within social worlds narrowly circumscribed by the values of money and militarism. The prep school, the corporate hierarchy, the "total way of life" of the military regimen: Each of these transits to power lacked clearly articulated, open rules of advancement, instead fostering social and psychological affinities "designed to form members that will tacitly accept and trust and respect one another." Thus imbued with class consciousness, this power elite pursued the major "command posts" of modern American society.

Merely to assert in the fifties that an American upper class existed meant to court controversy. Mills went much further still. Long-term trends in US social structure, he maintained, had both enlarged and consolidated the "command posts" occupied by the elite. "Local society," its business and Congressional retinue, had suffered a fatal decline. Now, the higher officer corps, the administrative apparatus surrounding the presidency and a corporate hierarchy of the "very rich," exercised international power of unprecedented scope. Professional politicians had abdicated their responsibility to make this power responsive. So, increasingly, a quasi-official "political directorate" of businessmen and military "warlords" appropriated the "executive centers of decision."

That an elite possessed such immense power at all should induce profound distress in any serious democrat, he seemed to suggest. That it exercised such power on behalf of private, self-interested standards of value should now solicit outrage. For prevailing values linked war and profit. Within the "second-hand worlds" that determined public consciousness, that is, the requirements of America's "permanent war economy" foreclosed alternative views. Pluralism, the dominant but now outdated picture of US democracy, only muddled the origins of the "moral uneasiness of our time": the dimly perceived understanding that the power elite adhered to a "crackpot realism," "a paranoid reality all their own" that might produce the most terrible of results: a third world war.

The Sociological Imagination (1959) continued Mills's assault on bourgeois formalism, focusing attention on prevailing models of social science. "Until now I have not really fought these people in American sociology," he wrote the British socialist Ralph Miliband late in the decade. "I've ignored them and done my own work; but they've been fooling around behind the scenes and now I declare war: I am going to expose their essential bankruptcy." By "behind the scenes" Mills was alluding, one supposes, to his own department. For his book expressed and then sought to surmount the major fault lines in professional social science at Columbia and other leading departments.

"Grand Theory," said Mills, offering a witty "translation" of the jargon-laden prose of Harvard sociologist Talcott Parsons, was afflicted by a formalist withdrawal from actual problems of the world. The grand theorists trafficked in a self-referential realm of reflection dominated by minute distinctions and interminable elaborations of basic concepts. In ascending to their "useless heights" they presupposed a natural harmony of ideas--their "metaphysical anchor point"--and so regarded conflict as a deviant phenomenon to be explained, not assumed. Yet because Parsons "has fetishized his Concepts," the exercise of power in real-world situations could not very well make its way into his work in the first place, nor into that of other grand theorists. "The basic cause of grand theory is the initial choice of a level of thinking so general that its practitioners cannot logically get down to observation. They never, as grand theorists, get down from the higher generalities to problems in their historical and structural contexts. This absence of a firm sense of genuine problems, in turn, makes for the unreality so noticeable in their pages."

"Abstracted Empiricism," too, constituted a withdrawal from substantive problems. Possessed by method often at the expense of clear-eyed content, the empirical studies of Paul Lazarsfeld and others yielded a great many details about attitudes and opinions of social life. But such studies "do not convince us of anything worth having convictions about." Their frame of reference, according to Mills, usually remained so narrow and precise as to deny the fruits of empirical data any larger connection to social structures. "There is, in truth, no principle or theory that guides the selection of what is to be the subject of these studies," he remarked. Abstracted empiricism, an approach that aspired to put sociology on a particular type of scientific basis, shrank from the task of moral and political judgment. The "formal and empty ingenuity at its center," not to mention the basic requirements of its processes--large, well-funded research institutes--had turned sociologists into mere technicians, solicitous of only the most immediate questions of the day.

Throughout his career Mills offered figures such as Veblen, Balzac, Agee and Huizinga as models of inquiry, because they "took it big"--took in the "whole of experience" and thereby sought to stand apart from their milieu. In The Sociological Imagination, Mills lamented that modern social science was, in the first and final instance, connected only to the upper reaches of American society: From there came the funding for the research institute, the bureaucratic organization and specialized character of the university; from there, he said, came the very definitions of the problems of study. Mass society had rendered equivocal reason and freedom. Now, without an intellectually autonomous class of thinkers who made plain the political and ethical features of this condition, society promised only to continue its fearful trajectory toward a postmodern epoch. Thus Mills implored his colleagues to connect history to biography, the private troubles of ordinary folks to publicly relevant issues, and the trusted intuition of their own experience to historically situated, interdisciplinary questions for research.

Mills left precious little opportunity in much of his work for the formation of private consciousness, and his sociological portraits frequently appeared overdrawn. Today, his white-collar man implies a comparison not to George Babbitt but instead to Hannah Arendt's Adolf Eichmann. The Power Elite, too, concluded darkly, shadowed by the specter of US totalitarianism. To the extent that these books stimulated the impulse to act, such inspiration owed not to precept but to example, to the fact of their existence.

So it was for Mills's criticism of his colleagues: his moral psychology and political hope outran his sociology. Much of his sociological work situated the creative individual within a terrible web of psychic manipulations and centripetal forces. Thus when he denounced his fellow intellectuals as "futilitarians," his complaints seemed mere hectoring. Late in the fifties he began to write more positively about "cultural workmen" as agents of change and "the cultural apparatus" as a site of progressive advance. But he never developed these sentiments, and left important questions unanswered. In challenging the monopolization of secondhand worlds by class-conscious elites, for instance, why should intellectuals be trusted to contain their own predatory instincts?

Might Mills's calls for the transcendence of distinctions between culture and politics trivialize public life? He did not live to answer such questions fully. What is clear is that an elitism stood back of his writings on the topic. "Who wants to be loved by masses, or by mass-like minds?" he asked his longtime friend William Miller in 1954. In the end, his belief in intellectuals as an advance guard of social change became a modern version of the "labor metaphysic" he rejected in Victorian Marxism, as historian Michael Denning has recently noted.

Yet the tenacious exhortation for intellectuals to seek "publics" over masses constituted a strength, too. It belongs to his venture to make "reason democratically relevant," as he put the matter in The Sociological Imagination. Appreciating Mills's achievement in this respect does not require a sacrifice of the intellect, as his most parsimonious critics insist. Nobody did more to revive popular discussions of class and democracy in a postwar period darkened by formalism. Nor did anyone make a more compelling bid to connect politics and ideas and "the whole of live experience" at a time when none of these seemed very compelling.

Mills refused to abandon universalist values even when his investigations disclosed ample reasons for doubting their continued relevance. If this grim perseverance could lead to a kind of elitism, it could also imbue his books with rhetorical force. Much of the power of his books and essays owes to the way in which he mined various traditions and impulses--liberal progress, Weberian irony, Texas populism, modern views of the sociology of knowledge--in the service of a near-missionary rhetoric of humanist redemption. In a sense, a conservative kind of radicalism anchored his life. He reported himself a member of the "classic tradition," a "plain Marxist" and especially an intellectual craftsman who sweated over his prose, which became less academic and more vernacular over time. "Isn't there room for just plain solid stuff; workmanlike stuff by an artisan stratum?" he wondered to his friend Lewis Coser at mid-decade. "That's my ideal kind of production and reception."

Other correspondence records his wide-ranging amateur interests: in music, movies, motorcycles, photography, art and architecture. They indicate an approach to reflection not as the highly technical endeavor so characteristic of the twentieth century but instead as a deeply personal, occasionally aesthetic way of realizing older notions of selfhood in a world now constrained by impersonal institutions. To Dwight Macdonald, Mills defined White Collar as a series of "prose poems" toward such a realization. "The book is my little work of art," he wrote elsewhere. And the "politics of truth" which so exercised Mills's evangelical imagination implied "the act of a free man who rejects 'fate'; it is an affirmation of oneself as a moral and intellectual center of responsible decision." Even his idiosyncratic style seemed a response to the sterile rituals of professionalism. He wrote in a 1948 letter, "About flamboyance: don't you love it? God, the only way to live: the only personal answer to bureaucratic precision and form which, part of the managerial demiurge, would stultify everything we do and are."

In a 1956 letter to novelist Harvey Swados, his neighbor and confidant, Mills claimed that "what these jokers--all of them--don't realize is that way down deep and systematically I'm a goddamned anarchist." Yet this best describes his own view of his temperament, at the center of which stood a visceral determination to avoid the "sense of the trap" that he seemed to see around every American corner. The actual substance of his concerns points toward a far more traditional conclusion. He opposed promiscuous mingling of Freud and Marx, defended liberal education and promoted a national civil service as well as a "genuine bureaucracy." He defined the "cultural apparatus" as "the seat of civilization," invoking no less an apostle of sensibility than Matthew Arnold. And when he sent a telegram of support to a rally protesting American policy toward Cuba, he made the most familiar of distinctions: kennedy and company have returned us to barbarism.

Perhaps since Mills came to believe that the freedom and reason embedded in the "big discourse" he first learned in Texas would now require the radical subversion of the prevailing order, he properly insisted that Columbia University belonged to him and his kind. His colleagues--note the peculiar language--had "defaulted." Others will catalogue many additional motives for his undeniably large ambition. Still, his letters and autobiographical compositions show a consistent, sincere sense of his role as a redeemer of lost ideals, as an old-fashioned moralist in a time of "mindlessness" and existential despair. That his public moralism existed alongside a flawed personal life did not escape his sense of irony, nor the attentions of his many academic enemies.

If Mills hoped to belong anywhere, he remarked, it was to "the heritage that mankind has produced in its best moments." His extensive writings to an imaginary Russian friend, Tovarich, suggest how alone he believed he was in this aspiration. That so many have flocked to his work in the past four decades also shows, happily, how mistaken that conviction has become.

Not too long ago, the members of the Ms. Foundation for Women, the feminist group that inaugurated Take Our Daughters to Work Day, began concocting a comparable holiday for boys. They planned the first "Son's Day" for October 20, 1996, a propitious time, the organizers thought: October is Domestic Violence Awareness Month. The activities that the Ms. Foundation recommended included taking your son (or "son for a day") to an event focused on ending men's violence against women ("Call the Family Violence Prevention Fund at 800 end abuse for information"); playing a game with no scores and no winners; helping to make siblings' lunches and lay out their clothes for the school week ahead; shopping for and preparing the evening meal. And then, presumably, just kicking back and letting the good times roll on.

Ultimately, Son's Day was canceled; its originators backed off. "Nevertheless," says Christina Hoff Sommers in The War Against Boys, "Ms.'s attempt to initiate a boys' holiday is illuminating. It shows the kind of thinking girl advocates do when they reflect on what influences would be good for boys." Sommers believes that girl advocates--or "misguided feminists"--are ascendant now in American culture and that they're turning boys' lives into a sorry morass.

The overt gist of Sommers' book, written in stolid, mass-production-style prose, is that we've begun to think of boyhood as a pathological state. What society once considered a normal part of being a boy--aggression, energy, noise, restlessness; rampant, crude curiosity--now looks like sick behavior. The current archetypes for boys, the figures that popular culture takes to epitomize being young and male, are the thugs from the Spur Posse in California and the killers at Columbine High. The result is that boys are coming to hate themselves simply for being who they are.

This situation Christina Hoff Sommers is determined to amend. She's hot with righteous indignation on boys' behalf: Judgment Day approacheth.

To Sommers it's supremely patronizing (and dead wrong) to argue that strong masculinity is a disease, one that can, with the right kind of socialization, be cured. Boys need some indulgence if they're going to transform their wilder energies into civilizing drives. Turning furies into muses is no easy trick.

Sommers' book has a very contemporary feel to it. She spends a lot of time pulling together horror stories we've all heard from the recent news and organizing them to make a full-blown, quasi-legal case for the view that boys, en masse, are being repressed by an alien regime. She talks about the kid who was suspended for kissing a girl in school, and about boys forced to study exclusively female figures in an American history class. She describes boys brainwashed into believing myths about their own inborn turpitude: It comes with the testosterone.

One of the best Sommers horror stories is about the hugger:

In [an] unpublicized case, a mother in Worcester, Massachusetts, who came to pick up her son was told that he had been reprimanded and made to sit in the "time-out" chair for having hugged another child. "He's a toucher," she was told. "We are not going to put up with it." That little boy was three years old.

The tales of "Son's Day" and the hugger, and the other stories that Sommers picks off TV news and from the daily papers, often make The War Against Boys seem like a pure artifact of the way we live now. But in another of its dimensions, this book is very old-fashioned. For Sommers assumes that she knows something that probably no one can know, or at least that many people gave up claiming to know thirty years ago. For her, the old gender wisdom pretty much holds: Boys are active, aggressive, outgoing; girls are inclined to be quiet, nurturing, restrained.

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On a psychological level, film is related to the art of embalming--or so André Bazin wrote half a century ago, in an essay that's still being chewed over. Bazin proposed that people feel a deep need to represent their world, as the next best thing to preserving it; and so the arts have struggled over the centuries toward an ever-higher degree of illusionism, till reaching the level of the sound-and-color film. This theory rests on an observation that seems to me unchallengeable: The cinema's early viewers experienced great satisfaction in seeing that pictures at last could capture not just the shape and surface texture of an object but also its motion, the visible essence of life. And yet, from the early years of cinema until now, certain directors have also felt the need to arrest motion, as if yielding to a psychological tendency to make film imitate the condition of painting.

These tableaux vivants served at first to dignify the raffish new medium of film. (They also saved directors and production designers a lot of work--as when D.W. Griffith, wanting to mount an ancient Babylonian feast for Intolerance, cribbed from a Salon painting that hung in a New York restaurant.) Later, frozen art-historical moments have figured prominently in stories about painters, who in the movies rarely have to go through the brain-wracking work of developing a composition, sketch after sketch. More often, these movie painters reproduce scenes that magically appear to them, all nice and finished--either in the real world (if the artist is van Gogh in Lust for Life) or in an inspired inner vision (such as the one that strikes the maestro in Pasolini's The Decameron).

There is also a strong, though less popular, tradition of making paintings-on-film for purposes of comedy, satire or critical commentary. Having been translated out of context, the original image becomes, in Marcel Duchamp's terms, a reverse readymade (meaning, for example, a Rembrandt used as an ironing board). Jean-Luc Godard has done quite a lot of this kind of thing (perhaps most notably in Passion). And before him, there was Luis Buñuel, who in Viridiana (1961) gave us the locus classicus: the moment when a crowd of beggars, who are throwing themselves a banquet, freeze in a parody of Leonardo's Last Supper.

The great Spanish actor Francisco Rabal happened to have participated in Viridiana. Now I see that he's back in the tableau vivant business, starring as the title character in Goya in Bordeaux. Written and directed by Carlos Saura, the film has precious little use for critical commentary. It's strictly of the "It came to me in a dream" school--and as such things go, it's worth a few laughs.

This much of the story is true: In 1824, when he was already an old man, Goya went into exile from Spain, which had become uncomfortable for him with the restoration of the monarchy, and settled in France, where he spent the last four years of his life. With him were his much younger companion, Leocadia Zorilla, and their little daughter. Goya in Bordeaux takes shape in this setting as a spiral of the ailing old man's memories--which he sometimes narrates as "secret, secret" stories, told to the 12-year-old daughter, and sometimes relives as dreams or hallucinations.

"Where am I?" croaks Rabal as his first words, waking in bed in a bleaching light. He plods to the window in his nightshirt, looking remarkably like Goya's self-portrait at this age: more bullfrog than man, with a wide, pouting lower lip and a great whiskery pouch of a neck. Down one side of his nose runs a deep cleft, left by some act of violence; a puckered scar complicates his left cheek. "Where am I?" he repeats, as the first instance of the dialogue's excess. "Who put me here?" In response, the room's color changes from red to blue, lights flash and a maja in a black mantilla materializes, only to disappear immediately through the door. Goya follows and soon finds himself chasing down one of those glowing white corridors with chessboard floor tiles that are standard equipment in the hallucinated-memory game.

The vanishing lady--as if you haven't guessed--is the Duchess of Alba (Maribel Verdú), whom Goya will eventually paint both clothed and nude. She'll serve a symbolic function, too; but, for the moment, her role is merely to lead Goya's thoughts back to age 45, when he was still slim and could be portrayed by José Coronado. We see him at a fancy party, where he's gone, dressed in a white wig and painted-on beauty mark, so that he might advance his career and ogle the Duchess. But, having tossed out these scraps of biography and romance--and having paused in mid-scene to observe Madrid's highest society in close-up--the film rushes on to other matters. Goya discovers dark visions within himself, and the power of the imagination; he etches the grotesque, satirical scenes known as Los caprichos. The pictures, blown up to six feet in height, appear on a series of scrims; the younger Goya walks behind the scrims, commenting on the images, while the older Goya stands in front of them, closer to the camera, adding a few thoughts of his own.

You get the idea. Goya in Bordeaux takes place in theatrical settings, almost all of them constructed on a soundstage, where cinematographer Vittorio Storaro can play freely with his colored lights, and where the younger and older Goyas can act out various episodes and sometimes converse with each other. The effect, by turns, is smooth and clunky, refreshing and tedious. On the one hand, Carlos Saura knows very well how to move freely and imaginatively from scene to scene and time to time; on the other, he doesn't know any better than to have the two Goyas sit around swapping information about the political situation, as if they were the play-by-play man and color commentator of some lost broadcast from the Romantic era.

But the really cheesy aspect of the movie--the part that bears some discussion--is Saura's re-creation of Goya's images. Pictures keep coming off the wall. In some cases, the three-dimensionality is limited and illustrative, as when Goya envisions the fresco Saturn Devouring One of His Sons complete with blood dripping from the Titan's mouth. You don't need the illustration, but at least it doesn't take up much space. In other cases, though, the effect is more intrusive. A whole crowd from Goya's "black paintings" rushes forward to surround the camera, which stares in understandable alarm. It's like being assaulted on the street by a mime troupe. And as the film's climax, Saura has Goya's greatest, most devastating images of war come to "life" on an elaborate stage set, before a painted backdrop.

Among these images is The Third of May 1808, Goya's large-scale canvas commemorating the execution of Spanish resistance fighters by Napoleonic troops. The painting is a work of brutal simplification. On the right side, a diagonal line of soldiers, their backs turned toward the viewer, forms a dark funnel, which narrows toward the rifle barrels that occupy the center of the picture. Under these barrels is the only source of illumination in this nocturnal scene--a lantern--from which a funnel of light opens out, dominating the left half of the picture. The victims all stand, or lie in a bloody heap, within this area of the canvas, so that the violence is swiftly, inexorably channeled from right to left, with the abrupt change from darkness to light serving as the visual correlation to an explosion.

Saura's version is, shall we say, less rigorous. The figures are framed loosely, rather than compressed into a space of no escape; the stark contrast of light and dark is lost (since the backdrop is now a glowing cyclorama); the single, unforgettable gesture of the painting--the lifting of a victim's arms--is made to compete with any number of other poses in an expanded composition. Most disturbing of all, the silence of the painting is abandoned. A strange choice to make, considering that Saura's screenplay is always harping on Goya's deafness, which is said (more than once) to have isolated him. Maybe so; but, more to the point, The Third of May 1808 seems to erupt against a background of profound stillness. The painting rings with silence; whereas Saura's image is accompanied by the all-too-predictable soundtrack of drumbeats, trumpets and bang-bang-bang.

This overelaboration of the painting, this nattering on behalf of something that was eloquent in itself, reminded me of the wax museums and dioramas of which Umberto Eco wrote in Travels in Hyperreality. What is the source, he wondered, of this desire to "improve" an image by keying up its illusionism, to the point that it becomes more vivid and tangible than any lived experience? I don't recall Eco's answer but I think it had to do with our sense of a lack in daily affairs, for which we then overcompensate. But as I watched Goya in Bordeaux, I began to wonder if the hyperreal might arise from our anxiety about an overabundance, rather than a perceived shortage.

Unless we're profoundly deaf, there is no silence in the world anymore; every moment is awash in televised voices, canned music, the ringing of cell phones. Nor do pictures stand still; even paintings jump around, having been digitized for our scrolling pleasure on the Internet. We've got too many stimuli and not enough places to put them. And so, perhaps, we keep moving around the surplus excitement, sticking it onto this or that image, with the unintended consequence of creating the hyperreal. Even Saura, who's a sophisticated artist, falls into the practice, all the while telling himself he's been faithful to Goya.

You want to see The Third of May 1808 in a movie? Try The Phantom of Liberty, by Luis Buñuel.