Tuesday, May 19, 2020

The Supreme Court Gets a Little Less Awful


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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