Almost a year ago, when beloved song-parody-writer Frank Jacobs died, I meant to write a post about how Jacobs probably would have lost his famous Supreme Court case these days. That case involved the parodies of songs by Irving Berlin and others that he wrote for Mad magazine, and established the precedent used to protect parodies.
But a lot of things are different now about how the courts, especially the Supreme Court, look at intellectual property and corporate rights, given the rise of the Federalist Society and other changes since the Powell memo.
Another recent death made me think of other rights that have been eroded since the early 1960s. Though I had never heard of him until I read his obituary, retired law professor Yale Kamisar (University of Michigan) played a pivotal role in both Gideon v. Wainright and Miranda v. Arizona.
According to Kamisar's New York Times obituary, criminal procedure was a "backwater" in legal scholarship in the late 1950s when he entered the law school faculty, first at the University of Minnesota. With Earl Warren as Chief Justice of the Supreme Court, it was a time that was right for the field to come to the fore.
Gideon established the right to council regardless of ability to pay. Miranda established that you need to hear about your right to remain silent and to have an attorney, with consequences to the prosecution case if you were not told. Kamisar's work was heavily cited in both decisions.
I don't think that either of these decisions would be decided as they were if they were new cases today.
And I wonder if there aren't cases in the works somewhere in the judicial review process, being heard by a Federalist Society judge, that are intended to overturn them, or make them meaningless. The structure of public defender systems in various parts of the country already greatly undermines Gideon, for instance. But it could be a lot worse. Powerful forces are lined up to see that it gets worse.
Legal precedents that I thought were permanent have been under attack, so I expect more of the same. Nothing is safe.
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