Many Supreme Court rulings are one-day stories. Others reverberate for months. And there are the landmark cases, such as Brown v. Board of Education and Roe v. Wade, which keep reappearing in the stressful news.
A ruling last June, United States v. James B. Stanley, disappeared from public notice after a day, but it was one of the more significant -- and frightening -- decisions in recent years. It also revealed that the conventional distinction between "liberals" and "conservatives" on the high court can be superficial. The deeper distinguishing mark separates those dispensers of justice who, in jazz parlance, have "soul" and those who just play a lot of notes.
In 1958 James B. Stanley, a master sergeant in the Army, answered a call for volunteers who were to test the effectiveness of protective clothing and equipment against chemical warfare. He and the other volunteers were deceived. Secretly, the Army dosed them with LSD to find out how the drug worked on human subjects. The effects on Sgt. Stanley included hallucinations, periodic loss of memory and incoherence. Also, as the subsequent court record showed, he would occasionally "awake from sleep at night and, without reason, violently beat his wife and children, later being unable to recall the entire incident."
Stanley was discharged from the Army in 1969, and a year later LSD destroyed his marriage. It wasn't until 1975 that Stanley discovered who had sent the dybbuk that possessed him. A letter came from the Army, asking Stanley's cooperation in a study of the long-term effects of LSD on the "volunteers" in the experiments beginning in 1958. Stanley, of course, had never volunteered to have his mind scrambled. He went to court to try to gain at least some redress for the waking nightmares that are his grievances.
The legal procedures were long and leaden, eventually arriving at the court of last resort. Speaking for a majority of the justices, Antonin Scalia turned out to be perfectly cast for the role of the Lord High Chancellor in Charles Dickens' "Bleak House," who "looks into the lantern that has no light in it."
Scalia, trimming a thicket of previous cases to fit the convenience of the military, said that whatever had befallen Stanley occurred during his military service. Therefore, to allow him to sue the Army for implanting the dybbuk "would call into question military discipline and decision-making." The courts would then be unleashed to engage in extensive second-guessing of military judgments, thereby disrupting "the military regime."
Joining Scalia in this separation of Stanley from the Constitution were Chief Justice William Rehnquist and Justices Byron White, Harry Blackmun and Lewis Powell, whose swing vote this time was to the beat of a military drum.
Justice Sandra Day O'Connor looked at the measured, mechanical cadences of the majority opinion and recoiled: "Conduct of the type alleged in this case is so far beyond the bounds of human decency that as a matter of law it simply cannot be considered a part of the military mission." This, she continued, is a case of "deliberate and calculated exposure of otherwise healthy military personnel to medical experimentation without their consent, outside of any combat, combat training, or military exigency. . . . No judicially crafted rule should insulate from liability" what happened to Stanley and the other "volunteers."
O'Connor reminded the majority that the Constitution guarantees due process of law even to soldiers.
Thurgood Marshall joined a dissent by Justice William Brennan with which Justice John Paul Stevens also was in partial accord. Brennan pointed out that at Nuremberg, the U.S. Military Tribunal established the Nuremberg Code, which prohibits medical experimentation on unknowing human subjects. Yet here is the Supreme Court of the United States setting a precedent whereby, in cases that clearly fall under the Nuremberg Code, there is "absolute immunity from liability for money damages for all federal officials who intentionally violate the constitutional rights of those serving in the military."
As for the disruption of military discipline if Stanley were to be allowed to sue, Brennan observed in a cogent footnote: "Stanley points out that he was administered LSD without his knowledge so that he could not have disobeyed any order given him."
The very last line of Brennan's dissent gets to the core of the case while also underscoring the bleakness of constitutional vision of the five justices who shut the door on Stanley:
"Soldiers ought not be asked to defend a Constitution indifferent to their essential human dignity."
Were I on the Senate Judiciary Committee, the first question I would ask Supreme Court nominee Robert Bork -- for the case has been decided -- is how he would have voted in United States v. Stanley.