By Kevin
D. Williamson
Monday,
June 19, 2023
About
the Supreme Court, the New York Times wants to know “whether the court’s decisions are
out of step with public opinion.” Here is the answer to that question:
It
does not matter.
The law
says what the law says. The job of the Supreme Court is to apply the law, not
to make up the law, not to reform the law, not to ensure that the law accords
with public opinion. If public opinion is opposed to the law, then the public
can elect new lawmakers and write new laws. It is not up to the Supreme Court
to do that for them. If representative democracy means anything, it is that the
law is made by lawmakers who are elected by the people and democratically
accountable to them.
Not that
the New York Times-reading progressive public actually cares what
public opinion says. Our progressive friends have been perfectly happy to use
the Supreme Court to overrule public opinion—and the law—for years, as long as
doing so meant they got their way without having to win legislative elections
and pass new laws. Public opinion was not in favor of the abortion
regime that Roe began to impose in 1973—nor did public opinion favor that
regime thereafter—but nobody worried very much about
that. The same with same-sex marriage and Obergefell and many
other “social issues” decisions. Most Americans believe that athletes should be required to compete on the
basis of biological sex rather than gender self-identification, but don’t expect to see any
demands that we defer to public opinion when that comes in front of the
court.
More to
the point: Public opinion should not come into play when those questions are
the subject of statutory or constitutional dispute. If we were simply to be
governed by public opinion, then we could do away with the Supreme Court
entirely—along with the Constitution and even written law itself.
Why not
just give the people—pardon me, Us the People—what we want?
There
are many good reasons for ignoring, frustrating, or overruling what the people
say they want. For one thing, the people often are wrong, often motivated by
hatred, fear, and envy to demand idiotic and tyrannical policies, and, in those
cases, the people have to be stopped. That is why we have the Bill
of Rights—the Constitution can be amended, but, as long as the First Amendment
is there, the people don’t get to take away anybody’s free-speech rights,
freedom to worship, etc. There are many progressives who wish the Second
Amendment were not there and did not say what it plainly does say, and many of
them have offered rafts of intellectually dishonest reasons why they and their
political allies should be allowed to run roughshod over the Bill of Rights—just
this once! for the children!—but, blessedly, the Supreme Court has not
permitted them to gut their fellow Americans’ civil rights. There are many
among us who believe that our intellectual-property law is wrongheaded and
unjust, and they are welcome to organize and agitate and electioneer to change
the law; but, as long as the law says what it says, it is not the job of the
Supreme Court to consider whether the law is popular, or even whether it is
just. The Supreme Court is not in the justice business—it is in the law
business. Bringing the law into accord with public opinion—or justice, which
is not the same thing—is the business of Congress and the state
legislatures, not the business of the courts.
Nobody
wants to live under a dictator. Bizarrely, some Americans want to live under
nine of them. But a dictator—or one-ninth of a junta—is precisely what a
Supreme Court justice is if he refuses to be bound by the law. Textualism is,
at heart, not an ideology or a system of legal interpretation—it is simply an
acknowledgment that the law says something and that its meaning is independent
of the private views, moral sensibility, or political commitments of a
judge.
That our
progressive friends have trouble understanding that has produced some amusing
consternation in this most recent Supreme Court term. Fresh after savaging the
court as an illegitimate institution after failing to get their way in Dobbs,
progressives have discovered strange new respect—however short-lived it is
going to be—for some of the court’s so-called conservatives. FiveThirtyEight
marvels that “two Supreme Court conservatives just
saved the Voting Rights Act,” as though we should be surprised that John Roberts and Brett
Kavanaugh did not set aside the rule of law to do something that gives Alabama
Republicans their preferred outcome. (That surprise is self-indicting.) In what
Mark Joseph Stern of Slate calls a “second surprise victory
for progressives,” Justice Amy Coney Barrett wrote an utterly conventional
opinion in the Indian Child Welfare Act case, joined by Roberts and Kavanaugh
along with Neil Gorsuch and what Stern calls “the three progressive
justices.”
And
there are “three progressive justices.” It is the progressives on the court,
not the conservatives, who most reliably vote as a political bloc. (For
example, the conservative-majority court that overturned Roe reached
the “conservative” decision, as reported by NPR, only 62 percent of the time. You’d think a majority that was
simply imposing its political preferences would score at least two out of
three.) A dedication to reading the text of the law does not ensure that every
textualist judge will come to the same conclusion; a dedication to delivering
one’s political allies whatever outcome they desire does ensure progressive
activist judges very often all will come to the same conclusion. There is no
world in which Sonia Sotomayor does not read the Democratic Party line on
abortion into the Constitution, irrespective of what the document actually
says. The two purported arch-conservatives in the Supreme Court’s recent
history—Clarence Thomas and Antonin Scalia—disagreed about some big things,
notably the federal government’s power to regulate marijuana and issues related
to due process for war-on-terror targets designated enemy combatants. If Robert
Bork had been on the court, you can be sure he would have disagreed with both
of them from time to time.
Even Nina Totenberg has noticed that the progressives on the
Supreme Court are more inclined toward bloc voting while the so-called
conservatives are more inclined toward intellectual disagreement. If your
bookie took bets on how individual justices were going to vote in any given
hot-button case, you’d make more money betting on the progressives, who are
predictable. When it comes to their most important political commitments, they
sometimes have reached their decision before the first arguments are
made.
If you
are worried about the legitimacy of the Supreme Court, that’s your problem—not
the fact that progressives sometimes (sometimes!) don’t get their way.
But
legitimacy is a lot like norms—everybody is worried about it until it becomes
inconvenient. The Biden administration ran as a return-to-normal, return-to-norms proposition—and
those of us who believed from the beginning that this was insincere horsepucky
have been vindicated. Take, for example, the administration’s Hatch Act
violations. I myself do not care very much about the Hatch Act, which purports
to limit the amount of politicking government employees do on government time;
further, I am not sure that I agree entirely with the Office of Special
Counsel’s ruling that the White House’s political rhetoric—specifically, its
repetitious use of the qualifier “MAGA” to characterize Republican
opposition—amounts to electioneering on the taxpayers’ dime. But the question
isn’t whether I think this is a big deal or whether Joe Biden thinks it is a
big deal—the OSC has made its ruling, and the White House has decided to ignore
that ruling.
Everybody
cares about norms and procedure and rules and all of that—until the ref makes a
call that goes against your team.
Nobody
in the White House cares about the Hatch Act, just like nobody in the
abortion-rights movement cares about what the Constitution actually says about
abortion—they care about having their way.
In that,
“MAGA” Republicans and run-of-the-mill Democrats are a lot alike.
Economics for English Majors
Beating
out Bud Light? ¡Si, se puede!
During
an earlier, more optimistic phase of my writing
career, I
kinda-sorta imagined something a lot like what we would now call “cancel
culture,” and I thought it was a pretty good idea. Specifically, I was looking
for ways in which we might use voluntary, opt-in, market-driven and
association-driven techniques to substitute for formal regulation. I had in
mind the famous Montgomery bus boycott, which was very effective on economic
grounds, but which did not actually persuade the bus company to end racial
segregation on its buses—that did not happen until the Supreme Court ruled that
Montgomery’s bus-segregation rules were unconstitutional. In spite of the
considerable economic damage inflicted by the boycott, segregation
endured.
Organizing
the boycott took a tremendous amount of work and imposed considerable transaction
costs on the boycotters. The necessity of organizing carpools and alternative
means of transportation created costs and vulnerabilities for the boycotters.
It has been estimated that upward of 90 percent of the black bus-riding
population honored the boycott, but from time to time there were those who did
not, because the personal cost of doing so was too high. (That is entirely
understandable—solidarity always has its limits.) But it seemed to me, at the
time I was writing The End Is Near and It’s Going to Be Awesome that
modern personal-financial tools could be tweaked in such a way as to put heavy
pressure on companies that behave badly but in a way that is short of illegal.
For example, you could offer a credit card that simply will not process (or
will at least flag) a purchase from a company that has environmental or social
policies that you would like for it to change. I don’t think that this kind of
thing would have been powerful enough to deal with what the civil rights
movement was fighting for, but not every social dispute or disagreement is
vicious segregation in Alabama, either.
I have,
for reasons that should be obvious, had second thoughts about all of that. Not
that I doubt the value of the mechanism—voluntary financial pressure from consumers
really can do things that regulation cannot do and should not attempt to do. I
still believe in the tool—it is the tool-users I have come to doubt. Populism
on the left and right, the cancel-culture hysteria that saw Starbucks firing employees in fits
of political cowardice and Lululemon apparently doing much the
same, the
scalp-hunting campaign to make an example of Bud Light—these things have me
doubting that the American public at large can be counted on to exhibit the
moral seriousness that supports the kind of free society I would like to see
emerge. I’m an old hand in the gender-ideology campaign—I once got fired by
the Chicago Sun-Times, a newspaper that didn’t actually employ me,
for writing a piece headlined “Laverne Cox Is Not a Woman”—but the childishness and hysteria
of the Bud Light episode is surely not the best way forward.
I
suppose it is a little like what I was talking about in a recent conversation
with my friend Charles C.W. Cooke regarding the legalization of marijuana: The
problem isn’t the weed, or the weed policy—it’s the potheads, who are
determined to be a nuisance whether marijuana is legal or prohibited. Boycotts
and other pressure campaigns can be useful tools for social change—but not when
they are run by ridiculous and hysterical ninnies over the most trivial of
grievances.
Words About Words
Some of
you will notice that The Dispatch has published a staff editorial on the most recent (as of this
writing) Trump indictments, only the third editorial we have published. I agree
with every word of it, and one in particular: “in.” The editorial reads, in
part:
[Trump] may well face additional federal charges related to the January
6 attacks and state charges in Georgia for his attempts—caught on tape—to bully
the Georgia secretary of state into cheating in his behalf.
One of
the little distinctions in English that is worth preserving is between “on
behalf” and “in behalf.”
A lawyer
or another representative may act on your behalf, i.e., he may act in your
stead, doing things that you would otherwise do for yourself. If you cannot
make it to the annual meeting of the American Committee for the Preservation of
Prepositions, you may send a representative to speak on your behalf. An
ambassador speaks on behalf of his government. Etc.
Someone
speaking in your behalf speaks in your interests, as an
advocate. That isn’t quite the same thing. If you have a parole hearing, your
lawyer may speak on your behalf, while character witnesses speak in your
behalf. Trump wanted the Georgia secretary of state to commit election fraud in
Trump’s behalf—in the service of Trump’s interests. Trump certainly didn’t want
him to do so on his behalf—as criminals go, Trump is an exceptionally dumb one,
but he knows enough to avoid making it too obvious that a malefactor is acting
in his place.
The
confusion comes from the fact that people who speak on your behalf often are
speaking in your behalf as well. In fact, they usually are, though people
speaking in your behalf often will not be speaking on your behalf.
Now,
some of our incontinently descriptivist friends will say that this is an overly
fussy distinction, that you can use “on behalf” to indicate either condition,
that there isn’t anything inherent in the words “in” or “on” that makes one
expression suited to one condition and the other suited to the other. The Swiss
linguist Ferdinand de Saussure wrote of “arbitraire du signe,” the
notion that the sounds and spellings of words are themselves arbitrary—e.g.,
there isn’t anything inherent in the words cat, kot, gato, biṛāla, māo,
goyang-i, etc.,
that is ineffably connected to the little furry creature that meows and purrs
and eats the faces of elderly women who die alone in apartments packed full of
felines. The basic phonemic units of language may indeed be arbitrary, but the
way we organize them into systems of expression is not: John murdered
Jack means something different from Jack murdered John.
There isn’t any grand cosmic reason why the sentence John murdered Jack couldn’t
mean that John suffered a homicide at the hands of Jack—lots of languages have
word-order conventions different from those of English—but, the thing is: That
isn’t how we do it.
Different
words—and different expressions—for different things.
Elsewhere
In Closing
Sunday
was Father’s Day, which I like better than I used to. But I think Father’s Day
should be moved to coincide with the Feast Day of St. Joseph, who is the model father.
Joseph
was certain to be seen as a man who had been humiliated. But Joseph did not see
things that way, and humiliation, intelligently understood, is something that
cannot be imposed from the outside by others, though they may try. A man’s
honor is his own. Convinced that he was following God’s command, Joseph took up
the invitation to shame, and he dutifully took on the burden of raising and
providing for a child who was—in either a natural or supernatural sense—not his
own. “Fear not,” Joseph was commanded, and so he had no fear: No fear of shame,
no fear of what people might say, no fear of the cost, economic or social, of
the course of action to which he had committed himself. Scripture does not tell
us that God reached down from Heaven and omnipotently plucked the fear from
Joseph’s heart—instead, it says only that Joseph was commanded to liberate
himself from that fear, which meant liberating himself from his pride and even
from his own righteous understanding of his honor, in the service of a higher
honor that transcends a man’s anxieties about his place in the world and the
estimate of his neighbors.
… The
Bible is filled with accounts of God demanding that His followers do
preposterous, unreasonable, and often horrifying things to satisfy Him, demands
that we would rightly understand as ranging from cruel to utterly insane if
they were made by a human being: Abraham and Isaac, Noah and the Ark, Jesus at
Gethsemane. The wild-eyed fanatic welcomes the flood and eagerly awaits “the
fire next time.” The reasonable man sips his scotch, straightens his tie,
clears his throat, and asks, circumspectly: Perhaps, Lord, there would
have been an easier way to make Your point? Joseph was a reasonable man.
And being reasonable wasn’t enough. He was commanded to go beyond what is
reasonable—to love beyond what is reasonable, to give beyond what is
reasonable, to take up burdens beyond what is reasonable.
God
bless the unreasonable men and the unreasonable women. Where would we be
without them?
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