LAW / THE FLAG : Burning Passions of the Day Becalmed in House of Reason


Even on a day of arguments about burning the flag, the American government has no more quiet and private place than the Supreme Court.

The nine justices, rarely seen in public, surfaced in their ornate court chamber Monday, sometimes breaking in politely with a question, to hear Solicitor Gen. Kenneth W. Starr and civil rights lawyer William Kunstler debate in decorum. It was a secluded scene beyond the reach of television.

But the Supreme Court, despite the understatement within, often deals with swirling passions outside, and the flag burning case is a telling example of that. There could hardly be more contrast Monday between the calm inside the courthouse--an immense temple of a building that looks like the Parthenon--and the carnival outside.

Soon after the hour’s argument ended, Kunstler, a best-selling author who likes to perch his eyeglasses on top of his wooly, graying hair, strode out of the temple and toward a cluster of television cameras on a corner of the grand courtyard.


But he refused to speak until several defendants spoke first. These flag burners, arrested for mutilating the American flag in the state of Washington and in the District of Columbia, wore a host of insignia--Mao pins, patches proclaiming “Vietnam Veterans Against War” and badges sporting a flag in flames and the slogan “Burn, Baby, Burn.”

Kunstler kept mum until his clients had vented their fury. Finally, he accused Congress of trying “to make a religious icon out of a political symbol.”

Meanwhile, demonstrators on both sides chanted slogans on the sidewalk. The Revolutionary Communist Youth Brigade, made up of young men and women dressed like bedraggled Sandinistas, tried to hoist a red flag atop an elaborately carved lamppost at a corner of the courtyard, but a Supreme Court policeman shooed them down. Young Americans for Freedom, wearing toy firemen hats, held up a large American flag and a sign: “Flag Burning Is A Hate Crime.” Some elderly men silently held up another flag and their sign: “Iwo Jima Vets For The Flag.”

Two young women, dressed in Nazi uniforms, seemed to confuse onlookers. Were they Nazis out to burn the American flag or Nazis out to harass the leftists? To explain themselves, the women handed out leaflets warning that Americans must choose between a society that was “fascistic or democratic. There is no middle.” The Nazis were evidently not Nazis, but civil rights advocates, but no one was sure.

Yet all the hoopla outside was sure to have little or no impact inside, for Supreme Court justices try to work within sanctums of reason. The justices deliberate and vote in private, and issue their decisions without fanfare months later.

Everyone, however, tries to glean a hint or two from the comments of the judges during the arguments. In the flag burning case, it seemed significant that Kunstler was questioned closely by Justices Antonin Scalia and Anthony M. Kennedy, two conservatives who voted with the majority in a 5-4 ruling that found the last flag burning law unconstitutional. The present flag burning act will surely be declared unconstitutional unless one of these two justices changes his mind.

During a discussion with Justice Scalia about whether an expression of speech could be harmful, Kunstler replied that, while the provocative burning of a flag was protected by the Bill of Rights, commercial advertising that harmed people was not.

“Oh,” Scalia responded.

“I take it from that ‘Oh,’ ” said Kunstler, “that you are not buying this.” This set off laughter in the courtroom, but no comment from the justice. No one knew whether the “Oh,” in fact, or any of the pleas by Solicitor Gen. Starr or Kunstler would matter once the justices took up the case again in the quiet of their chambers.