No Comment — June 28, 2012, 12:25 pm

Our Politicized Judiciary

The Supreme Court has held the news spotlight this week as at no other time in recent memory. The Court’s 5–4 ruling on this year’s cornerstone case, addressing challenges to the constitutionality of Obama’s health-care-reform legislation, proved anticlimactic: it upheld the law, though on somewhat different grounds than most constitutional-law scholars had anticipated before oral argument. Instead of validating the mandate to purchase insurance under the commerce clause, Chief Justice Roberts’s majority opinion called the mandate a tax.

But earlier in the week, in a ruling that may prove equally important, the Court expanded upon its 2010 ruling in Citizens United, striking down Montana’s efforts to impose campaign-finance restrictions on corporate giving. And in another ruling, the Court upheld challenges to an Alabama law that mandated life sentences for certain classes of juvenile offenders, finding that this punishment was “cruel and unusual.” Each of the three rulings contained some remarkably intemperate and partisan language—evidence of an increase in the political temperature within the high court. James Fallows of The Atlantic commented on the potential repercussions of this partisanship for American political process:

[W]hen you look at the sequence from Bush v. Gore, through Citizens United, to what seems to be coming on the health-care front; and you combine it with ongoing efforts in Florida and elsewhere to prevent voting from presumably Democratic blocs; and add that to the simply unprecedented abuse of the filibuster in the years since the Democrats won control of the Senate and then took the White House, you have what we’d identify as a kind of long-term coup if we saw it happening anywhere else.

Liberal democracies like ours depend on rules but also on norms—on the assumption that you’ll go so far, but no further, to advance your political ends. The norms imply some loyalty to the system as a whole that outweighs your immediate partisan interest. Not red states, nor blue states, but the United States of America. It was out of loyalty to the system that Al Gore stepped aside after Bush v. Gore. Norms have given the Supreme Court its unquestioned legitimacy. The Roberts majority is barreling ahead without regard for the norms, and it is taking the court’s legitimacy with it.

E.J. Dionne writes in the Washington Post that Justice Antonin Scalia should resign because of his shrill blog-style attacks on Obama, delivered in the guise of a legal opinion. Judge Richard A. Posner was equally disturbed, stating that Scalia’s writings seemed designed to be “quoted in campaign ads.” Law professor Paul Campos called Scalia a “ranting old man.” Others cited Samuel Alito’s decision to stand tall for the lifetime imprisonment of children, in a dissenting opinion in which he also libeled a prison superintendent by confusing him with an inmate, as an even clearer example of judicial foaming-at-the-mouth. The embarrassing passage was subsequently airbrushed out of the opinion.

Michael Tomasky, writing on the eve of the health-care decision, anticipated the worst and focused on how the Democrats should respond to it:

I’ll be watching for rhetoric, tone, even body language. And on those counts, they had damn well better dispense with the usual liberal woe-is-me hand-wringing and shoulder slumping and come out swinging. They had better communicate to their base that they stand for something, it’s important to them, and they’re pissed. And if they do it the right way, they can make the Supreme Court an issue this fall in a way that might even persuade some swing voters that the court overstepped its bounds. I’d go so far as to say that an aggressive response can reset and reframe the whole health-care debate, once Americans have had their minds focused on this by a blatantly partisan court.

Obama’s victory on the health-care front makes it less likely that the Supreme Court will provide frontline fodder for electoral campaigns: both sides will make their argument about the health-care process, but both now also appear prepared to accept that the issues it raised have to be addressed through the political process, rather than by the courts. But then, the Supreme Court only rarely figures prominently during presidential elections. The Dred Scott case in the election that brought Abraham Lincoln to power is the sole clear-cut example. Americans were contemptuous of the Dred Scott Court, regarding it as the last redoubt of slavery.

That era marks the court’s historical low-water mark, though the public’s view has moved steadily southward in the past twenty years, too; at present only 44 percent of the public support it, while two-thirds of Americans believe its decisions are at least sometimes influenced by its justices’ political views. Ironically, much of this disdain is the product of Republican campaigns targeting an “activist judiciary”—a perspective that seems not to have caught up with the fact that the American judiciary is overwhelmingly Republican and the recent activism has a decidedly G.O.P. slant. The controversial opinions issued by the Supreme Court this week may reinforce the impression that it is riven with partisan animus and further undermine the Court’s credibility, but the Roberts opinion seems to have been engineered to avoid just that result.

Lawyers are trained to avoid challenging the impartiality and integrity of courts. The perception of impartiality is essential to the successful functioning of a judicial system, after all. Nevertheless, the claim of impartiality is becoming threadbare. There are 874 federal judgeships in the United States. Many of these judges strive to uphold ethical standards, suppressing their partisan instincts and applying the law as they read it. Others are proudly partisan—and the Supreme Court, led by Justices Scalia, Thomas, and Alito, is now home to the most striking examples of partisanship.

We should be concerned about this development. The appearance of impartiality is important, and the Court needs to make a more resolute effort to attain it, and to more seriously police its own ethical standards. At present, each justice decides ethics questions for himself, a procedure that has triggered embarrassing laxity on questions of recusal and in travel and honorarium decisions. There is no reason why Supreme Court justices should be held to lower ethical standards than those imposed on other federal appellate judges, for instance—but they are.

The political partisanship of America’s judiciary is the result of constitutional choices made across centuries, including several that separate America from most other democracies—among them the failure to establish a professional class of judges who are recruited out of law school, insulated from political process, and promoted according to professional criteria. The American system of nonprofessional judges appointed with lifetime tenure via presidential appointment (subject to senatorial consent) only serves to heighten the risk of partisanship. Judgeships are frequently awarded to people who have played key roles in election campaigns or who have given generously to political candidates. This situation was as true of America in the nineteenth century as it is today. This system was perfectly sensible for the late eighteenth century, when notions of professionalism were just emerging and judgeships were largely a sinecure for wealthy landowners and aristocrats. But for a modern democracy it is rickety and embarrassing.

The Supreme Court reminds us this week that it is one of the three co-equal branches of government and that it has the power to make policy and law as forcefully as the others, but also that it will sometimes defer to the political branches, even when they enact legislation it obviously does not like. Yet it reminds us, too, that it is every bit as partisan as the other two branches. As the only branch now in the hands of the G.O.P., the Roberts Court has used its power to give its party an advantage on the electoral battleground, thanks to the Citizens United and Montana rulings, which together ensure Mitt Romney an enormous funding advantage in the coming battle. That’s hardly the way the Founders conceived the federal judiciary, but it is what the system they created permits.

Share
Single Page

More from Scott Horton:

Conversation August 5, 2016, 12:08 pm

Lincoln’s Party

Sidney Blumenthal on the origins of the Republican Party, the fallout from Clinton’s emails, and his new biography of Abraham Lincoln

Conversation March 30, 2016, 3:44 pm

Burn Pits

Joseph Hickman discusses his new book, The Burn Pits, which tells the story of thousands of U.S. soldiers who, after returning from Iraq and Afghanistan, have developed rare cancers and respiratory diseases.

Context, No Comment August 28, 2015, 12:16 pm

Beltway Secrecy

In five easy lessons

Get access to 168 years of
Harper’s for only $45.99

United States Canada

CATEGORIES

THE CURRENT ISSUE

October 2018

FEATURED ON HARPERS.ORG

Article
The Printed Word in Peril·

= Subscribers only.
Sign in here.
Subscribe here.

In February, at an event at the 92nd Street Y’s Unterberg Poetry Center in New York, while sharing the stage with my fellow British writer Martin Amis and discussing the impact of screen-based reading and bidirectional digital media on the Republic of Letters, I threw this query out to an audience that I estimate was about three hundred strong: “Have any of you been reading anything by Norman Mailer in the past year?” After a while, one hand went up, then another tentatively semi-elevated. Frankly I was surprised it was that many. Of course, there are good reasons why Mailer in particular should suffer posthumous obscurity with such alacrity: his brand of male essentialist braggadocio is arguably extraneous in the age of Trump, Weinstein, and fourth-wave feminism. Moreover, Mailer’s brilliance, such as it was, seemed, even at the time he wrote, to be sparks struck by a steely intellect against the tortuous rocks of a particular age, even though he labored tirelessly to the very end, principally as the booster of his own reputation.

It’s also true that, as J. G. Ballard sagely remarked, for a writer, death is always a career move, and for most of us the move is a demotion, as we’re simultaneously lowered into the grave and our works into the dustbin. But having noted all of the above, it remains the case that Mailer’s death coincided with another far greater extinction: that of the literary milieu in which he’d come to prominence and been sustained for decades. It’s a milieu that I hesitate to identify entirely with what’s understood by the ringing phrase “the Republic of Letters,” even though the overlap between the two was once great indeed; and I cannot be alone in wondering what will remain of the latter once the former, which not long ago seemed so very solid, has melted into air.

What I do feel isolated in—if not entirely alone in—is my determination, as a novelist, essayist, and journalist, not to rage against the dying of literature’s light, although it’s surprising how little of this there is, but merely to examine the great technological discontinuity of our era, as we pivot from the wave to the particle, the fractal to the fungible, and the mechanical to the computable. I first began consciously responding, as a literary practitioner, to the manifold impacts of ­BDDM in the early 2000s—although, being the age I am, I have been feeling its effects throughout my working life—and I first started to write and speak publicly about it around a decade ago. Initially I had the impression I was being heard out, if reluctantly, but as the years have passed, my attempts to limn the shape of this epochal transformation have been met increasingly with outrage, and even abuse, in particular from my fellow writers.

As for my attempts to express the impact of the screen on the page, on the actual pages of literary novels, I now understand that these were altogether irrelevant to the requirement of the age that everything be easier, faster, and slicker in order to compel the attention of screen viewers. It strikes me that we’re now suffering collectively from a “tyranny of the virtual,” since we find ourselves unable to look away from the screens that mediate not just print but, increasingly, reality itself.

Photograph (detail) by Ellen Cantor from her Prior Pleasures series © The artist. Courtesy dnj Gallery, Santa Monica, California
Article
Among Britain’s Anti-Semites·

= Subscribers only.
Sign in here.
Subscribe here.

This is the story of how the institutions of British Jewry went to war with Jeremy Corbyn, the leader of the Labour Party. Corbyn is another feather in the wind of populism and a fragmentation of the old consensus and politesse. He was elected to the leadership by the party membership in 2015, and no one was more surprised than he. Between 1997 and 2010, Corbyn voted against his own party 428 times. He existed as an ideal, a rebuke to the Blairite leadership, and the only wise man on a ship of fools. His schtick is that of a weary, kindly, socialist Father Christmas, dragged from his vegetable patch to create a utopia almost against his will. But in 2015 the ideal became, reluctantly, flesh. Satirists mock him as Jesus Christ, and this is apt. But only just. He courts sainthood, and if you are very cynical you might say that, like Christ, he shows Jews what they should be. He once sat on the floor of a crowded train, though he was offered a first-class seat, possibly as a private act of penance to those who had, at one time or another, had no seat on a train.

When Corbyn became leader of the Labour Party, the British media, who are used to punching socialists, crawled over his record and found much to alarm the tiny Jewish community of 260,000. Corbyn called Hez­bollah “friends” and said Hamas, also his “friends,” were devoted “to long-term peace and social justice.” (He later said he regretted using that language.) He invited the Islamist leader Raed Salah, who has accused Jews of killing Christian children to drink their blood, to Parliament, and opposed his extradition. Corbyn is also a patron of the Palestine Solidarity Campaign and a former chair of Stop the War, at whose rallies they chant, “From the river to the sea / Palestine will be free.” (There is no rhyme for what will happen to the Jewish population in this paradise.) He was an early supporter of the Boycott, Divestment, and Sanctions (BDS) movement and its global campaign to delegitimize Israel and, through the right of return for Palestinians, end its existence as a Jewish state. (His office now maintains that he does not support BDS. The official Labour Party position is for a two-state solution.) In the most recent general election, only 13 percent of British Jews intended to vote Labour.

Corbyn freed something. The scandals bloomed, swiftly. In 2016 Naz Shah, Labour MP for Bradford West, was suspended from the party for sharing a Facebook post that suggested Israel be relocated to the United States. She apologized publicly, was reinstated, and is now a shadow women and equalities minister. Ken Livingstone, the former mayor of London and a political supporter of Corbyn, appeared on the radio to defend Shah and said, “When Hitler won his election in 1932, his policy then was that Jews should be moved to Israel. He was supporting Zionism before he went mad and ended up killing six million Jews.” For this comment, Livingstone was suspended from the party.

A protest against anti-Semitism in the Labour Party in Parliament Square, London, March 26, 2018 (detail) © Yui Mok/PA Images/Getty Images
Article
Nothing but Gifts·

= Subscribers only.
Sign in here.
Subscribe here.

If necessity is the stern but respectable mother of invention, then perhaps desperation is the derelict father of subterfuge. That was certainly the case when I moved to Seattle in 1979.

Though I’d lived there twice during the previous five years, I wasn’t prepared for the economic boom I found upon this latest arrival. Not only had rent increased sharply in all but the most destitute neighborhoods, landlords now routinely demanded first, last, and a hefty security deposit, which meant I was short by about fifty percent. Over the first week or so, I watched with mounting anxiety as food, gas, and lodging expenses reduced the meager half I did have to a severely deficient third. To make matters even more nerve-racking, I was relocating with my nine-year-old son, Ezra. More than my well-being was at stake.

A veteran of cold, solitary starts in strange cities, I knew our best hope wasn’t the classifieds, and certainly not an agency, but the serendipity of the streets—handmade for rent signs, crowded bulletin boards in laundromats and corner grocery stores, passersby on the sidewalk; I had to exploit every opportunity that might present itself, no matter how oblique or improbable. In Eastlake, at the edge of Lake Union between downtown Seattle and the University District, I spied a shabby but vacant one-story house on the corner of a block that was obviously undergoing transition—overgrown lots and foundation remnants where other houses once stood—and that had at least one permanent feature most right-minded people would find forbidding: an elevated section of Interstate 5 just across the street, attended by the incessant roar of cars and trucks. The house needed a new roof, a couple of coats of paint, and, judging by what Ezra and I could detect during a furtive inspection, major repair work inside, including replacing damaged plaster-and-lath walls with sheetrock. All of this, from my standpoint, meant that I might have found a solution to my dilemma.

The next step was locating the owner, a roundabout process that eventually required a trip to the tax assessor’s office. I called the person listed on the rolls and made an appointment. Then came the moment of truth, or, more precisely, untruth, when dire circumstance begot strategic deception. I’d never renovated so much as a closet, but that didn’t stop me from declaring confidently that I possessed both the skills and the willingness to restore the entire place to a presentable—and, therefore, rentable—state in exchange for being able to live there for free, with the length of stay to be determined as work progressed. To my immense relief, the pretense was well received. Indeed, the owner also seemed relieved, if a bit surprised, that he’d have seemingly trustworthy tenants; homeless people who camped beneath the freeway, he explained, had repeatedly broken into the house and used it for all manner of depravity. Telling myself that inspired charlatanry is superior to mundane trespassing—especially this instance of charlatanry, which would yield some actual good—I accepted the keys from my new landlord.

Photograph (detail) © Larry Towell/Magnum Photos
Article
Checkpoint Nation·

= Subscribers only.
Sign in here.
Subscribe here.

Laura Sandoval threaded her way through idling taxis and men selling bottles of water toward the entrance of the Cordova International Bridge, which links Ciudad Juárez, Mexico, to El Paso, Texas. Earlier that day, a bright Saturday in December 2012, Sandoval had crossed over to Juárez to console a friend whose wife had recently died. She had brought him a few items he had requested—eye drops, the chimichangas from Allsup’s he liked—and now that her care package had been delivered, she was in a hurry to get back to the Texas side, where she’d left her car. She had a …
Checkpoint on I-35 near Encinal, Texas (detail) © Gabriella Demczuk

Chance that a woman in one of the U.S. military’s three service academies claims to have been sexually harassed:

1 in 2

Stimulating people’s brains with an electric current while they sleep can improve their powers of memory.

Paul Manafort accepts a plea deal; Brett Kavanaugh accused of sexual assault; Jeff Bezos gets into the kindergarten racket.

Subscribe to the Weekly Review newsletter. Don’t worry, we won’t sell your email address!

HARPER’S FINEST

Happiness Is a Worn Gun

By

Illustration by Stan Fellows

Illustration by Stan Fellows

“Nowadays, most states let just about anybody who wants a concealed-handgun permit have one; in seventeen states, you don’t even have to be a resident. Nobody knows exactly how many Americans carry guns, because not all states release their numbers, and even if they did, not all permit holders carry all the time. But it’s safe to assume that as many as 6 million Americans are walking around with firearms under their clothes.”

Subscribe Today