I was talking with a friend last night about the Supreme Court vacancy, and as we started discussing the case history and the ideological leanings of the various short-listers, we soon realized we were getting all jumbled up trying to discern which were “conservative” and which were “liberal”. No deference for executive power, but bad on commerce clause wankery? National security apologist but a seeming comfort with striking down congressional legislation? The parlor game of trying to decide if Stevens drifted left over the years or the Court drifted right? What does it matter? Why do we insist on assigning ideological coherence to any of these grab-bag combinations? Why are we so attracted to the forced cohesion of seemingly irreconcilable policy preferences?
Anyway, we both realized that we very much like the idea of a Justice who has substantial political or professional experience, rather than someone who’s been a federal judge for twenty-five years.
Oliver Wendel Holmes said that the life of the law has not been logic, but experience. But the problem is that the life of the career judge has not been informed by experience, but by logic. Such a life would seem to inevitably lead to an ossification of thought and the erection of a fortified ideological prism through which all issues and controversies must first be squeezed through. As noted above, the problem is there is no one mental filter that can make a coherent whole out of the myriad of infinitely complex and disparate legal and political issues before us today.
I want somebody who knows what it’s like to have been responsive to the ebbs and flows of public passion, and who has been judged in that arena not by their fealty to an esoteric process of rationality, but by actual produced results for actual living breathing constituents.
Now the question is who would we have decide for us which results are prudent and which are to be avoided? Is the imposition of results the proper role of an unelected lifetime judicial appointee? It’s a difficult question, and the answer is sometimes yes, often no. People who consider themselves originalists or constructionists (again the prisms strangle our discourse and suffocate us all) would bristle at my “sometimes yes”. I’m quite aware that this sort of language is code these days for the dreaded, democracy-destroying “judicial activism”. But as Benjamin Cardozo said in 1921, he was not worried about whether a judge should take “some consideration of the social welfare, by my own or common standards of justice and morals” because, “I take judge-made law as one of the existing realities of life.” Judges have expansive legislative power, and spending your time denying that fact, rather than working to see that power wielded prudently, is to be ensnared in an arcane logic game at the expense of consideration for the well-being of actual people. That was a little inartful: I don’t mean to call it callous or immoral, or to say that strict constructionists are apathetic about the well-being of actual people. I just side with the Holmes view that says the law breathes only when we see it set to work, not merely when it appears to comport with a certain “approach” or process of thought while we’re staring at it on a piece of paper.
This veneration of intellectual process at the expense of lived experience got me thinking about Founder worship, and worship of the documents the Founders produced. It’s is a strange thing. The subject always brings to my mind a quote from Thomas Jefferson, writing to James Madison in 1789, “The earth belongs to the living, not to the dead; and the dead have neither powers nor rights over it.” He was talking about the extent to which one generation should be able to bind another to their habits, laws, or morals, and Jefferson took the view that this coercion from the grave was very dangerous. He actually thought the ability of future generations to repeal laws was not sufficient protection from this tyranny of the dead, and he instead wanted laws to have limited duration and expire after a certain period of time. That’s a rather unworkable view, no doubt, but it speaks to the way in which we summon and resurrect our ancestors to do our work for us, and in turn, we willfully acquiesce to their coercion.
Yesterday Ta-Nehisi Coates wrote a wonderful essay on Confederate Lost-Causers who seem to appropriate their dead ancestors to give color and direction to the present. Though it’s a different topic, I think it has resonance in things like how we interpret the law, the instinct behind Founder worship, and why a demand for ideological purity inexorably leads to intellectual ossification. Ta-Nehisi writes that, “It’s weak to manipulate the dead in order to reconcile our present, to force men to play our Gods”:
The Lost Cause is necromancy–it summons the dead and enslaves them to the need of their vainglorious, self-styled descendants. Its greatest crime is how it denies, even in death, the humanity of the very people it claims to venerate. This isn’t about “honoring” the past–it’s about an inability to cope with the present.
It denies their humanity by eliding their faults, by recreating and re-molding them each time we resurrect them anew, in order to “do the work that I would shy away from.” And as we enslave them to our present needs, so too are we enslaved by them: you cannot create gods out of the memory of men and then be surprised to find yourself under the thumb of their dictates.
In law just as in historical revisionism, we ought to more often eschew seance with the dead, and instead, take a step out of our houses which we know so well. As Rilke said, “Enormous space is near….”
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