AS THE TRIAL TURNS

‘Great cases make bad law,” Supreme Court Justice Oliver Wendell Holmes Jr. once remarked. But, oh, they do make delicious theater. The great American trials of this century have been such riveting spectacles not because of their legal gravity and consequences but because they have lent drama and heat to the clashing issues of the day as only the Anglo-American adversarial system of justice can. They have also provided incomparable lenses through which to peer into a historical era’s very soul: its divisions and affirmations; its loves and hates; its obsessions and crotchets; its unarticulated ambitions and fears; its villains and heroes.

Consider some of the candidates for the title “Trial of the Century”: the prosecution of Nicola Sacco and Bartolomeo Vanzetti and of John Scopes in the 1920s; of Alger Hiss in the 1950s; and of O.J. Simpson and Bill Clinton in the 1990s.

Each of those episodes necessarily unfolded according to the customary conventions of trial procedure: prosecution, defense, testimony and cross-examination, decision. That prescribed legal formula, of course, closely approximates the basic rules of narrative: protagonist, antagonist, conflict, denouement. Small wonder, therefore, that the stories of some trials pass easily into folklore, taking their place among the tales we tell to explain ourselves and impart meaning and order to our often bewildering lives--and small wonder that novelists and filmmakers so frequently expropriate the trial format as their favored storytelling device.

Yet, history is messier than fiction. In real life, trial results may not offer the kind of comforting resolution that novels or films typically afford, especially so in the “great cases” to which Holmes referred. (The particular case that occasioned Holmes’ remark resulted from the government’s antitrust prosecution, in 1904, of the Northern Securities Holding Company, a notorious specimen of the supposedly malevolent “trusts” that the public loved to hate and that President Theodore Roosevelt loved to excoriate. Holmes pleaded in vain for a “rule of reason” in judging the company’s behavior. The court’s majority, influenced by the popular clamor against trusts and TR’s ceaseless fulminations against the “malefactors of great wealth,” disagreed with him and voted to break it up. Some six decades later, the old Northern Securities combine was reconstituted with the merger of the Northern Pacific, Great Northern, Chicago, Burlington and Quincy railroads in 1970, a story paralleled by the recent remarriage of Mobil and Exxon, supposedly separated forever in another high-profile antitrust case against Standard Oil in 1911.)

What each of the claimants for “trial of the century” has in common is its engagement with a deep, apparently intractable question that the American people proved incapable of settling by other means. In each case, it seems almost as if society grasped at the fiction that the illusory finality of the formal, legal process might, at least for a time, give a measure of comfort in the face of a matter too urgent to ignore but too painful to wrestle to permanent closure.

Sacco and Vanzetti, Italian immigrants and professed anarchists, were convicted of murder in an atmosphere seething with anxiety about aliens and worries about radicalism in the wake of the mass immigration of the pre-World War I decades and the worldwide revolutionary upheavals triggered by the war. Their trial and appeals, which dragged on for six years in the postwar decade, pitted conservatives against liberals, old-stock nativists against newly arrived Americans, civil libertarians against the paladins of law and order. Their execution in 1927 poisonously divided the country and deeply embittered a generation, prompting the novelist John Dos Passos to declare that “all right, we are two nations.” Scarcely two decades later, the country entered upon another “red scare” and, in the 1960s, immigration revived on a scale that dwarfed the supposedly menacing hordes of the early 20th century. (Meanwhile, those “two nations” fought as one in World War II.)

Similarly, the notorious confrontation between Clarence Darrow, for the defense, and William Jennings Bryan, for the prosecution, at the trial of John Scopes in 1925 incarnated the clash of science and theology, the struggle between reason and faith, and the contest between urban sophistication and rural fundamentalism, conflicts that had been roiling the religiously pluralizing and rapidly urbanizing United States since the turn of the century. Despite Scopes’ conviction for teaching the Darwinian theory of evolution in violation of a Tennessee statute, the humiliation of Bryan, the biblical literalist, at the hands of Darrow, the silky courtroom logician, was taken by many to signify the permanent eclipse of old-time religion and to toll the death knell of the supposedly benighted backwoods culture that sustained it--conclusions that look ludicrous (not to mention condescending) from the vantage point of the century’s end.

Alger Hiss was convicted for perjury in 1950, after nearly two years of charges and countercharges before congressional committees and in the courts, for denying under oath that he had passed secret government documents to a Soviet agent during the 1930s. Ostensibly a case about espionage, the Hiss affair was widely understood then and later as a proxy battle waged by conservative Republicans to discredit the liberal Democrats responsible for the New Deal and for America’s newly internationalist foreign policies--the fabled “eastern establishment” of which Hiss, a highly polished product of Johns Hopkins and Harvard Law School, clerk for Justice Holmes, New Deal functionary and State Department official, was an all-too-easily caricatured example. But if Hiss was simply a pawn in a larger cultural and political war, his ultimate fate settled little. He went to jail, and a Republican, Dwight D. Eisenhower, won the White House in 1952. But Democrats held Congress through all but two years of the 1950s, and in the following decade, a Democratic president, Lyndon B. Johnson, enormously expanded New Deal-style programs, only to open the door to a conservative revival inaugurated by Richard M. Nixon, Hiss’ original antagonist before the House Un-American Activities Committee in 1948 and a man who eventually suffered an even harsher fate than did the hapless Hiss.

O.J. Simpson may or may not be a murderer (here the formal court and the court of public opinion have rendered contrary verdicts), but he is surely an emblem of the racial tensions and suspicions that have permeated American society for the last several decades. As with Sacco, Vanzetti, Scopes and Hiss, his legal predicament swiftly became the occasion for an ongoing national chautauqua about the most disquieting issue of the day--and in the 1990s, that meant race relations. When history tells the story of the Simpson case, the hue of his skin, not the charge of homicide, will constitute the central plot, just as history has judged Sacco and Vanzetti not as murderers but as victims of nativism, has cast Scopes not as a wronged biology teacher but as a slayer of hayseed myths, has rendered Hiss not as a spy but as a beleaguered if misguided champion of enlightened liberalism.

So how will history tell the story of President Bill Clinton’s impeachment and trial? The episode has all the makings of a great case, some of them unique: a popular protagonist and his implacable opponents, to be sure, as well as the eternally fascinating bonus of sex, but also the highest political stakes, the majesty of a proceeding that mobilizes rarely used constitutional machinery, and the uncertain implications for constitutional stability. But for all its drama, perhaps precisely because of the drama, as Holmes said long ago, this case, whatever its outcome, is not likely to make great law. Nor is it likely to pacify the contending forces that have animated it from the beginning.

The Senate will eventually reach a verdict, and the trial will conclude. Whatever the final outcome, one side or the other will claim vindication. But don’t kid yourself. The Senate’s action will bring no denouement to the deeper conflicts that have underlain this confrontation from the start. Like the other trial-of-the-century contenders, this one is about more than the specific charges on the table. It has been fought out in that murky region of cultural conflict where the rules of justice and the formal decisions of the law are all but irrelevant. It represents an old struggle that was refreshed and widened in the 1960s, has reverberated throughout this society for three decades, and will in all likelihood resonate well into the next century. That struggle pits pietists against secularists, traditionalists against modernists, the votaries of sexual restraint against the advocates of sexual license, literal-minded devotees of unbending principle against defenders of situational ethics, pro-choicers against pro-lifers. It represents a contest between two fundamentally different temperaments, even two ways of life, both of them deeply rooted in the circumstances of American society, neither comfortable with the other, and neither likely soon to retire from the field of combat.

The political and constitutional consequences of this episode may turn out to be large and durable or small and fleeting. But in the last analysis, history will not figure Clinton simply as a philanderer and perjurer, nor his opponents simply as vindictive pols or principled guardians of the constitutional and moral order. Clinton is likely to go down in the history books most conspicuously as the symbol of a tangled complex of attitudes, values and behaviors thought to have their origins in the upheavals of the 1960s. His story will be told as another chapter in an ongoing culture war--one that will see no meaningful truce until history, not a convenient legal fiction, at long last imposes an armistice, if not a final peace.