Hearsay

“It's Justice Simon on line one.”

“This is Seymour. I promised I'd let you know if I decided to leave the Supreme Court.” It was just eight years into the 10-year term he earned in 1980 in his 21st straight election to public office.

The reason given: The obligation to languish 16 weeks each year in Springfield was wearing thin. But couched in that was his role as a pariah among the brethren, in lone dissent to stare decisis as justification for ratifying the death penalty.

Justice Simon never forgave the three justices who switched their dissents from a 1979 opinion, in which a majority of four upheld the 1977 statute, to concurrences in the first death penalty case that followed only a year later.

Two of them said they were “bound by precedent,” Simon told the Jewish Judges Association in a 2003 speech, “although time and time again the U.S. Supreme Court and many other courts, including the Illinois Supreme Court, have held that precedent does not apply.”

He quoted from a subsequent 1986 U.S. Supreme Court opinion: “Stare decisis is not an inexorable command; rather it is a principle of policy and not a mechanical formula of adherence to the latest decision.”

But in 1980, one Illinois justice had maintained that “I must accept the fact that my opinion was wrong (in 1979) because four members of this court said it was wrong.”

Simon responded: “If an incorrect constitutional position were rendered forever correct, merely because four judges once said it was, then our system of justice would not be one of laws, but one of men – not one of principle, but one of chance.”

In the opening of his explanatory speech to the Jewish Judges, Simon spoke of a long tradition of “Dina d'malkhuta Dina,” meaning “The Law of the Kingdom is the Law,” as a mandate to Jewish people to obey the law of the land where they live.

“Your duty as judges is to apply the law of the kingdom so your daily work as judges is consistent with the talmudic injunction. I regret to say, however, that the law of the land is not always just.”

Later on he noted that although the phrase, “the rule of law,” is often intoned in a reverential way, it is seldom defined. “I suppose it refers to the existing law of the kingdom, the law of the land. But as we have seen in the example of the death penalty in Illinois, the law of the land can often be unfair and unjust. It can be wrong.”

Simon's closing admonishment embodied the evolution of his philosophy over 65 years as a lawyer and jurist.

“I most humbly and respectfully suggest to my colleagues that while you follow, as you must, the dictates of the law of the land, you always try to be righteous and just, and that in exercising the powerful authority you have, remember our biblical adage:

This brings us adroitly, and ironically, to Marengo, where the law office of ISBA past president Herb Franks is being assailed by McHenry County officials for posting a version of that passage from the book of Deuteronomy above its portal.

Franks says “Justice, Justice, shalt thou pursue” is the credo of Franks, Gerkin & McKenna and a statement of its ethical principles. County officials say it violates terms of a recently enacted sign ordinance.

But the biblical phrase is not a commercial statement, says Jack Franks, a state representative and son of Herb Franks. “This is a private business where we should be able to make a statement of ethics,” he told a reporter for the Daily Herald.

“The county board should spend more time following the Constitution and less time harassing businesses and people of faith,” Jack added. In his view, the sign ordinance is an unconstitutional abuse of power because it is applied arbitrarily.

The religious nature of the quotation does not bother county officials, but its size apparently is the crux of the dispute. All the Franks firm needs to do is pay for a permit, the county insists.

Jack Franks indicated he will pursue justice if and when the county files charges against the law firm that he can oppose in court. “They have to stop harassing people of faith,” he said.

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Here's a “pursuit of justice” that ought to be stopped in its tracks. The ACLU is contemplating a lawsuit against the state for enacting a limit on how close to military funerals those church-based protesters from Kansas may demonstrate in Illinois.

Well-known for sometimes unpopular defenses of First Amendment freedoms, the ACLU seems poised to determine that such inflammatory declarations as “Thank God for dead soldiers” do not rise to the level of unacceptable “fighting words.”

A few thousand men and women on active duty might disagree.