By Kevin D. Williamson
Tuesday, May 19, 2020
Lyle Denniston, a legal journalist who began covering the
Supreme Court in 1958 for the Wall Street Journal, is not happy about
how the Supreme Court is conducting its business during quarantine, insisting
that the current turn-taking arrangement “harms equal status of each justice,
gives the [chief justice] arbitrary power, diminishes cross-bench exchanges,
promotes wool-gathering by lawyers, prizes order over depth, lets technology
triumph, [and] looks amateurish. If it is thought that this is the wave of the
future, I’ll take decisions based solely on the briefs. To call this ‘argument’
is to impoverish the word.”
Each item on that indictment is worth considering, but
one is of particular interest: the charge that the procedures put in place to
allow the justices to work remotely — the traditional open format has been
supplanted by a system in which the justices ask their questions one at a time
in order of seniority — “looks amateurish.” (It certainly is not a triumph of
technology; technology here has won by default.) The inclusion of that purely
aesthetic criterion among the substantive political and procedural complaints
is not by any means trivializing. The appearance of amateurism may be the most
consequential entry on Denniston’s list.
Part of our political debate is over relatively
straightforward things such as who gets taxed how much and what the money is
used for. Some of our political discourse is simply the noise generated by the
intellectual violence of complex issues being forcibly oversimplified. But much
of our disagreement is about things we rarely speak to directly, including the
cultural character of the state, what it looks like and feels like, how it
sounds when it talks, what its manners are like. Among the many great fault
lines in American life is the one that runs between small-r republicans such as
myself who, for example, see the State of the Union address as a contemptible
pseudo-monarchical spectacle unworthy of a free people, and those on the other
side, including members of both parties, who desire majesty in government, who
can’t imagine a free people managing their own affairs without a great deal of
“oo ee oo aa aa, ting, tang, walla walla
bing bang.”
This is a debate as old as the United States: Poor John
Adams was savagely ridiculed for his often-caricatured belief that the
president of the United States should be addressed by some exalted title. Adams
had entertained “His Highness, President of the United States and Protector of
Their Liberties.” His preferences later escalated to “His Majesty.” (On this
and much more, I recommend Richard Brookhiser’s great America’s First
Dynasty: The Adamses, 1735–1918 and the very interesting The Problem of
Democracy: The Presidents Adams Confront the Cult of Personality, by Nancy
Isenberg and Andrew Burstein.) Adams’s worry seems quaint in retrospect: That
the president would not be a sufficiently strong national figure, that he would
get pushed around by the legislative branch, that his want of pomp and majesty
would render him pitiable and impotent among the world’s princes.
The modern American presidency is the love child of
Caesar Augustus and P. T. Barnum, no longer an administrative post but a sacral
kingship. That is why our fights over it are so bitter. It isn’t that we don’t
care about internal bureaucratic debates over interpretation of Section 4(b)(1)
of the Occupational Safety and Health Act or things of that nature, but it
isn’t the question of due process under Title IX sexual-harassment procedures
that causes some people to hate Betsy DeVos. They already hated her, they hated
her from the moment they saw her, and 99 percent of the Left’s tantrum about
the Department of Education under her leadership is simply backfilling in a
rationale for that hatred. Democrats were wrong in their insistence that
conservatives’ revulsion at Barack Obama was a matter of race, but they were
correct that it was not primarily a matter of policy. Barack Obama, like Donald
Trump after him, was a cultural totem and a signifier. If American democracy is
Lord of the Flies as presented by C-SPAN, then the presidency is the
conch — the power to dominate the conversation, the power to convene, a symbol
of legitimacy. While one tribe glories in possession of that bauble, the other
cannot bear being deprived of it.
The need for majesty is obvious from the king’s point of
view. A kingdom is what you get once organized crime becomes a monopoly and by
dint of age attains a patina of respectability — Mancur Olsen’s “stationary
bandit.” Thomas Paine had nothing but contempt for the belief that kings should
be treated with some kind of awe:
This is supposing the present race
of kings in the world to have had an honorable origin: whereas it is more than
probable, that, could we take off the dark covering of antiquity and trace them
to their first rise, we should find the first of them nothing better than the
principal ruffian of some restless gang, whose savage manners of pre-eminence
in subtilty obtained him the title of chief among plunderers; and who by increasing
in power and extending his depredations, overawed the quiet and defenseless to
purchase their safety by frequent contributions.
That is the use of awe: ensuring compliance, obedience,
and civil quietude.
The Supreme Court’s appearance of amateurism diminishes
its carefully cultivated sense of mystery — it functions as a Greco-Roman
mystery cult, complete with ceremonial robes and occult knowledge available
only to initiates — and that thins the awe it inspires in the American people.
Without that awe, certain previously unthinkable thoughts
become thinkable.
The Supreme Court has handed down many illegitimate
decisions over the years — Dred Scott, Roe v. Wade — that were
illegitimate not because they produced horrifying outcomes (though many of them
did) but because they were preposterous as legal arguments. But for the
Left, the only time the Supreme Court’s legitimacy is in question is when the
Left thinks it may not get its way. It has become an amusing
media cliché, like “Republicans
pounce!” It is never the Left’s policy agenda that is in peril, but only
the Court’s legitimacy — or John Roberts’s reputation, as preference dictates.
Justice Kagan has argued that the Court suffers from a “legitimacy deficit” and
that the proper response is to frankly politicize the Court and move it in her
direction, which she of course calls “the center.”
(The center of what, exactly?)
Roe is a textbook example of outcome-oriented
jurisprudence, the Queen of Hearts model of legal reasoning. And yet we are
expected to abide by it — and Supreme Court nominees are expected by Democrats
to affirm the sanctity of it — even though it is, as every honest person knows,
legally indefensible, a purely political decision. But purely political
decisions are the order of the day, especially when it comes to the so-called
liberals on the Supreme Court. John Roberts and Clarence Thomas may surprise
you from time to time. The late Antonin Scalia often followed the law to places
where his political preferences would have preferred not to wind up. But will
Elena Kagan ever surprise you on anything of real consequence? Sonia Sotomayor?
To ask the question is to answer it. They are party-line voters, and they might
as well not even show up at the courthouse. Ruth Bader Ginsburg has in recent
years abandoned any pretense of being anything other than a bare-knuckled
political operative and a tribune who understands her role on the Supreme Court
as making good on policy deliverables for the Left at every opportunity.
So, the question is: How many illegitimate decisions can
a court make before we question the court’s legitimacy?
And that is where awe is really, really useful to people
who would rather not talk too much about that sort of thing.
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