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Emerson, Thomas.

The passing of the great civil libertarian and legal scholar Thomas Emerson, in this season when the issues that he championed are much discussed, recalls a little history. The year was 1959. The place was Yale Law School. The subject was The Case Against the House Un-American Activities Committee. The speaker was Joe Rauh, the quintessential anticommunist liberal. The sponsor was an-umbrella group known as the New Haven Council for Civil Liberties, whose chair was Rabbi Robert Goldburg.

Rauh was in the news because the courts had recently overturned a contempt-of-Congress conviction of his client the playwright Arthur Miller, and Miller was slated to introduce him. As it happened, Rabbi Goldburg had performed the nuptials for Miller and Marilyn Monroe, and word spread among Yale law students that Miller would be accompanied by his bride. Never have so many budding corporate lawyers developed such a swift interest in civil liberties. The house was packed.

But for the students, there was a last-minute hitch. When Rauh had accepted the invitation he hadn't realized that the sponsoring coalition included among its constituents such a suspect organization as the Emergency Civil Liberties Committee. The E.C.L.C. had been founded in 1951 precisely because the American Civil Liberties Union had qualms about defending the rights of Communists and those on the Attorney General's list of subversive organizations. The new group itself had then come under government scrutiny. Rauh would give his speech as planned, he told his old friend Yale law professor Tom Emerson, but would dissociate himself from such politically unsavory sponsorship. Whereupon Miller, apparently unsettled by the prospect of a political face-off between his lawyer and his rabbi, decided to stay at home.

Rauh proceeded to eviscerate HUAC that night, although he "reluctantly" conceded that it did perform the useful service of alerting innocent citizens to Communist fronts and fellow-traveling organizations such as the E.C.L.C. Enter Professor Emerson. "I rise in defense of the Emergency Civil Liberties Committee:' he said, and briskly made it clear why he and Carey McWilliams and I.E Stone and Corliss Lamont and others, friends of The Nation afl, thought it important to fill the gap left by a nervous A.C.L.U. Having helped found the new organization yet staying active in the older one, Emerson was among the few civil libertarians of stature on speaking terms with both. Refusing to play the demagogic politics of anticommunism, he stood squarely for what he called absolutist free speech principles, and he converted what could have been an occasion for sectarian infighting into an open and eloquent lesson on the imperatives of democracy.

The performance was vintage Emerson. Tommy the Commie, as his colleagues affectionately called him, had a reputation as a political rabble-rouser, having run for Governor of Connecticut on Henry Wallace's Progressive Party slate in 1948 (withdrawing when Chester Bowles, whom he admired, got the Democratic nomination), and then having accepted the presidency of the left-wing National Lawyers Guild at the zenith of McCarthyism and being in the forefront of those who defended victims of the Smith Act. Yet, for all that, anyone who had dealings with him was struck by his quiet, judicious manner. As one colleague put it, "Emerson is not simply committed to the due process of law; he is addicted to it:' A law teacher who was a student of Emerson's in the 1960s recalled Emerson's class discussion of Brown v. Board of education and said that until Emerson talked about the case, it had never occurred to him that there was a plausible argument to be made for "separate but equal," a principle against which Emerson effectively fought all his professional life. (Indeed, the student was left uncertain whether his professor, on balance, approved of the decision.)

As a scholar, Emerson's pioneering casebook on political and civil rights and his classic on the First Amendment, The System of Freedom of Expression, were, in the words of Louis Pollak, once a colleague, now a judge, "more than merely authoritative, they are works which reordered the line of inquiry for those who have come after." As a lawyer, his cases included Griswold v. Connecticut, in which the Supreme Court invalidated a state law prohibiting the use of contraceptives and laid the groundwork for Roe v. Wade; and Sweezy v. New Hampshire, in which the Court overturned the contempt conviction arising from university lecturer Paul Sweezy's refusal to cooperate with a state legislature investigating subversive activities. He wrote the amicus brief in Sweatt v. Painter, a case argued by Thurgood Marshall, in which the Court rejected state-mandated racial segregation in American legal education. And he was in the vanguard pushing for women's equality under the law, a cause that eventually led to the movement for the Equal Rights Amendment.

It is one of the more scandalous limitations of our cold war democracy that a man like Tom Emerson was never seen as a conceivable nominee to the Supreme Court-and one of its ironies that his erstwhile student Clarence Thomas should now be poised for the job. Given the rest of his resume, one harbors only the faintest hope that Thomas's experience as Emerson's student would return and rub off on him, no less than on the Court itself, should he be approved by the Senate. But on the occasion of Emerson's passing, it is appropriate to note that the best chance for frustrating the President's continuing effort to stack the court with right-wing ideologues may come from a coalition of civil rightsniks, feminists and civil libertarians whose values were informed and defined by the battles for human dignity that Tom Emerson fought and that his life encapsulated.
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Publication:The Nation
Article Type:obituary
Date:Jul 29, 1991
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