What do you want to do when you retire, if you ever can? Those of us who walked away from the world of work a few years ago, to finally do what we want, found our means of doing what we want suddenly restricted. Yep, the economy disintegrated and what we’d put away was suddenly halved, and then halved again. All the cool options disappeared, although those who trusted their all to Bernie Madoff found they had no options at all. But you learn to make do. There are always options, just not the ones you expected. You deal with those. What might have been was always a fiction anyway. You deal with what is, or you end up bitter and whining. What you can’t control cannot be a concern – you’d go crazy if you fret about it, or get angry, or you sublimate your anger and spiral down into depression and despair.
And that’s an easy lesson to learn out here in Los Angeles – the freeways teach you that. You can fume when you’re stuck at a dead stop on the 405 for two hours – some folks even pull guns – but fuming doesn’t make the traffic move, and those road rage folks who start shooting end up in jail for a long time. And those who get depressed aren’t much better off. Deciding life is unfair and you’ve lost big time in the game of life, and nothing will ever go right again, certainly is an option, and in some sort of Camus-on-a-bad-hair-day existential way may be quite rational and amazingly honest – you know, the absurd and the Myth of Sisyphus and all that. But so what? You’re still stuck in traffic. So the lesson you learn, quickly or not, is to go all Zen. You accept the moment. You consider the sky, you admire the play of light on all the pastel metallic surfaces around you, you attend to the shadows that play across the dashboard – and the jazz station out of Long Beach is pretty good, as is the classic station from USC on the edge of Watts. You can get in the zone. Just don’t listen to talk radio. You’ll only get upset.
So you’re not going to be where you were supposed to be. Someone will be angry with you, or not. It’s not as if you can do anything about it. Ten cars behind you someone very, very important in a stretch limo is stuck too. It happens. And maybe you discover what seems to be the general rule of life – you’re not going to be where you were supposed to be. No one ever is.
Or maybe you’re exactly where you are supposed to be – only you hadn’t realized it. That’s the life-as-a-comic-joke theory, and the trick there is to manage to good-heartedly laugh at the joke. But that presupposes a cosmic jokester, and you do know you’re not that important, don’t you? Why would the universe, in the person of some hypothetical cosmic joker, conspire to pull a joke on you, specifically on you? What makes you so special? You’re just one of many who happen to be stuck in traffic at the moment. There’s no deep inner meaning to it. So it’s best to get in the LA Zone and chill. You can be happy enough, or at least at peace.
So they say people out here in LA are all mellow. It’s the traffic. You learn.
And retirement is like that, and it’s not bad being stuck in Hollywood. Yep, no more trips to Paris each December, and you live carefully, and quietly, spending as little as you can – but you’re stuck in the dream factory where we have an industry with the job to provide a way for America to imagine itself, and imagine the world. That’s what folks do out here – they spin tales about the life you’re leading, or wish you were leading, or fear you really are leading. It seems part mirror and part speculation, and all about capturing the zeitgeist and thus helping define it – giving it form. And it’s fun to watch.
So somehow retirement turned into watching America think about itself, and reporting on that, here, in words, and at the sister site in years and years of thousands of photographs. It’s kind of like being stuck in traffic. You’re not going anywhere, so chill and look around and groove on what you see. And watch America discover, and rediscover, again and again, that we’re not going to be where we were supposed to be. No one ever is. We muddle through – some enraged, and now with guns, and some depressed, and a few saying we work something out to approximate something that works.
And two recent items in Slate center on the gap between where we think we’re supposed to be, theoretically, or constitutionally. It’s a matter of how we think things are supposed to work, and who we are.
The first of these is from Dahlia Lithwick, their senior editor who covers legal matters, and the issue is the retirement of Justice Stevens and Obama having the opportunity to place a second justice on the Supreme Court. And the controversy over the first nominee was odd – the issue was empathy. As you recall, Republican senator after Republican senator was saying we just can’t have that – the law is about the law, not about having empathy for anyone. You apply the statute or declare it’s unconstitutional, and that has nothing to do with how you feel about anything at all. And Sonya Sotomayor was obviously too warm and full of joy, even if she was superbly qualified otherwise – she had once said a wise Latina woman would sometimes make a better decision, presumably a better decision than would a cold and detached old white man who had stopped feeling anything about anything decades ago. Sure, others said her name sounded funny, and Rush Limbaugh said she looked like a cleaning woman, and Pat Buchanan and others said that she couldn’t be that good about the law, even with her sterling reputation, because she was obviously someone who would not have gotten to where she is were it not for Affirmative Action, which meant even if she was qualified now, she shouldn’t be, because she didn’t get there fair and square. But that was all secondary. The issue was empathy. The courts should have nothing to do with that.
And that lead to Dahlia Lithwick’s item The Surrendered Court. And it starts with an anecdote:
Last Friday, Justice Antonin Scalia delivered the Henry J. Abraham Lecture at the University of Virginia law school. In defending his constitutional methodology of originalism, Justice Scalia started with a classic joke. I’ll paraphrase: Two hunters find themselves being chased through the woods by a bloodthirsty bear. The heavier one starts to huff and puff, and finally turns to the other and wheezes: “I don’t think we’re going to be able to outrun him!” The second hunter, jogging just ahead, replies: “I don’t need to outrun him; I only need to outrun you!”
Scalia’s point is that it’s not his responsibility to prove that textualism or originalism are perfect constitutional theories. It’s enough for him to demonstrate they are better than the alternative. And the alternative, says Scalia, is for a justice to “make the law what he thinks it should be.”
It was, in fact, an argument against empathy and for just sticking to the text, which is what Lithwick says Scalia does so well and what liberal constitutional thinkers can’t always manage.
Where he is pithy and clear in his prescription for judicial restraint, they get all tangled up in an effort to make their own jurisprudential theory sound perfect. Perhaps in advance of what is shaping up to be a galactic fight about President Obama’s next Supreme Court nominee, liberals should take Scalia’s adage to heart and content themselves just to outrun the other guy. In other words, maybe there is no time like the present to tell the country about the hazards and pitfalls of the conservative theories of originalism and textualism and the cult of balls-and-strikes-ism that has taken over the American jurisprudential debate.
Nothing will ever be perfect, and, it seems, empathy and common sense may not be such a bad thing after all. It depends on how you see the court’s job, what it’s supposed to do. And she notes that has gotten all mixed up:
The public conversation about the judiciary in recent decades has often conflated a broad fear of unelected judges with a clear definition of what judges should do. In the wake of the Jackson Pollock-style jurisprudence of the Warren Court, anxiety about overreaching judges morphed into a widespread sense that judges simply do too much. Conservative groups happily pushed the line that liberal judges were all merely unelected “activists” bent on “legislating from the bench.” But this says little about how a judge should decide cases and much about our fear of the bench. Originalism and textualism aren’t the only way to constrain judges, but they dovetail nicely with the idea that if you confine yourself to what the framers would want, you can’t make as much of a mess with the yellow paint.
That’s how judicial “activism” – a word we all should acknowledge is meaningless – turned into a catchall term for judges who did anything one didn’t like. They were, after all, acting. It’s only in recent years that we’ve discovered that the opposite of an “activist” judge is, in fact, a deceased one.
So if you live, you feel, and you might even have that dreaded flaw, empathy. And she reviews where we’ve been on that:
When John Roberts captured the hearts of America during his confirmation hearing, with his language of “minimalism” and “humility” and “restraint,” he brilliantly reassured Americans that at his very best, he would do just about nothing from the bench. This pledge was shored up by a complex web of doctrines guaranteed to ensure that, in case after case, his hands were tied. Long before he was tapped for a seat at the high court, Roberts had written approvingly of efforts to cabin judicial power, including his efforts in 1984 to promote court-stripping legislation, to circumscribe the reach of Title IX, and to stiffen standing requirements for access to courts. Since becoming chief justice, Roberts and his colleagues on the court’s right wing have continued to resolve cases by narrowing the authority of courts to solve problems. The Roberts court has worked to ensure that it’s harder for women to bring gender-discrimination suits and harder for elderly Americans to sue for age discrimination. It’s ever harder for those affected by pollution to prevail. Last term was the worst ever for environmental cases at the high court.
In short, courts really shouldn’t do anything much. And that hasn’t exactly worked out well, and on that matter she cites Jeffrey Toobin:
The kind of humility that Roberts favors reflects a view that the Court should almost always defer to the existing power relationships in society. In every major case since he became the nation’s seventeenth Chief Justice, Roberts has sided with the prosecution over the defendant, the state over the condemned, the executive branch over the legislative – and the corporate defendant over the individual plaintiff.
You can keep on characterizing this as merely “calling balls and strikes,” but it’s becoming amply clear to most Americans that with this court behind the plate, only big business ever gets to first.
And thus, Lithwick contends, we have a surrendered court, “an institution devoted to the principle that it is critically important to be seen as powerless and unimportant.” But it’s more than that – it’s “a court that has deployed filing deadlines and pleading requirements and standing doctrine to keep the courts out of the picture.” So it’s not as simple as “restraint” versus “activism.” And “maybe the opposite of an activist court is a court too passive to do justice at all.”
Justice? You don’t go to court for justice. You go to court for a legal ruling. That’s a different thing entirely. People often confuse the two.
But Lithwick concedes there is an argument to be made on the need to constrain the judiciary, but maybe not like you think:
There is a need for a thoughtful discussion about how to interpret the Constitution and what judges should take into consideration while doing so, and I dearly hope we will spend the coming weeks having it. My only point here is that most Americans, having been terrified by the specter of “liberal activist” judges legislating from the bench, should be equally terrified at the prospect of “humble judicial minimalists” who are institutionally powerless to do anything at all to protect America’s women, its workers, its minorities, and its environment. I suspect most Americans still want to believe that if they are the victims of discrimination or injustice or brutality, the courts are a place to go for vindication. As suspicious as we may all have become of ideological, activist judges, I imagine most of us would still like to believe that if we were to file something in a courthouse tomorrow, a judge would be available to do something about it.
So it’s all in how you think things should be, and where we’re supposed to be:
What we have heard, since the day of Stevens’ retirement, has been a sharp response from President Obama himself, who said he was looking for a justice who, like retiring Justice John Paul Stevens, “knows that in a democracy, powerful interests must not be allowed to drown out the voices of ordinary citizens.” Sen. Patrick Leahy has made the same point in the weeks since, insisting on the Sunday talk shows that under the guise of in-activism, the Roberts court has almost completely ceded its responsibility to see justice done in America.
Is that how it’s supposed to be, justice should be done? That’s a quaint idea. Where’d that come from?
Maybe it came from history, where the rulings used to be about justice. After all, the 1954 ruling that desegregated schools, served justice. On the other hand, the argument in Brown v Board of Education was about the relation of the Fourteenth Amendment to specific local laws and laws around the country – dry stuff. But justice was done. Can’t we have both? Some think that’s how it’s supposed to be. Apparently others don’t.
But history itself is a problem, and Ron Rosenbaum covers that in The Tea Party’s Toxic Take on History – and as Rosenbaum is the author of The Shakespeare Wars and Explaining Hitler this is not mild:
I am a great believer in used-bookstore serendipity. Sometimes when you’re thinking about how to express something, you find a perfect exemplification of it just by chance in the musty stacks of such an emporium. Here’s a remarkable example. I’d been trying to find a way to write about Tea Party ideology, and in particular about the fraudulent history and distorted language it indulges in. Listen to Tea Partiers on cable news – or read the signs they hoist or their Internet comments – and you frequently encounter the flagrant abuse, the historically ignorant misuse, of words such as tyranny, communist, Marxist, fascist, and socialist.
You hear them say, for instance, that we live under “tyranny” because one side lost a health care vote in an elected legislative body. And that, in all seriousness, the president is a communist. For many Tea Party members, the word is not just a vile epithet; it’s a realistic political description.
How did that happen? He suggests a video clip:
Check out this clip in which Tea Party “celebrity” spokeswoman Victoria Jackson flatly tells a flummoxed Fox News host, “The president’s a communist.” When the host (the Fox host!) starts to object, she responds that Glenn Beck has taught her that progressive is a code word for communist. …
Unless of course Obama is really a “fascist,” as some T.P.ers have it, because he’s a liberal, and liberals are fascists (as we all know from that magisterial work of history, Liberal Fascism by Jonah Goldberg). So instead of the hammer and sickle, draw a little Hitler mustache on Obama’s face on your T.P. hate signs. Or better yet, parade around with a swastika! (The Tea Partiers seem to get a special kick out of this, for some reason.)
Of course Obama is also probably an evil “socialist” which is apparently, in the Tea Party worldview, pretty much the same as a fascist or a communist. (One gets the impression that some T.P.ers have had major, life-changing, “aha!” moments when they first learned that Hitler’s party was the National SOCIALIST German Workers Party. Slam dunk!)
And if Obama’s not a socialist fascist communist, he may be – ooh, scary, kids! – a “progressive,” which, as Victoria Jackson learned from the erudite Glenn Beck, is really a secret “code word” for communist.
And they believe him!
And the odd thing this is a matter of how we think things should be, and where we’re supposed to be – and Obama ain’t it. But of course that’s like sitting at a dead stop on the 405 and screaming you’re supposed to be zipping along at sixty. Others might share your rage, but the traffic is still stopped.
And Rosenbaum says that rage is risky:
Most people with a basic grounding in history find Tea Party ignorance something to laugh about, certainly not something to take seriously. But I would argue that history demonstrates that historical ignorance is dangerous and that it can have tragic consequences, however laughable it may initially seem. And thus the media, liberals, and others are misguided in laughing it off. And educated conservatives are irresponsible in staying silent in the face of these distortions.
The muddled Tea Party version of history is more than wrong and fraudulent. It’s offensive. Calling Obama a tyrant, a communist, or a fascist is deeply offensive to all the real victims of tyranny, the real victims of communism and fascism. The tens of millions murdered. It trivializes such suffering inexcusably for the T.P.ers to claim that they are suffering from similar oppression because they might have their taxes raised or be subject to demonic “federal regulation.”
And he’s not pleased with the media chasing every Tea Party story out there:
These swastika nuts look ridiculous. But words matter, sometimes in a life-and-death way. Take for instance the Tea Party demonization of “federal regulation” as the instrument of the tyranny that’s been imposed on them. I would like every Tea Partier who has denounced federal regulation to write a letter to the widows and children of the coalminers in West Virginia who died because of the failure of “federal regulation” of mine safety.
Tell the weeping survivors that such regulation is tyranny, that their husbands and fathers had to die, but for a good cause: lowering federal spending so the T.P.ers could save a few pennies on taxes. That’s worth 29 lives snuffed out in a mine blast, isn’t it? They either don’t see the connection or don’t care.
Indeed the demonization of “federal regulation” could prevent cowardly legislators from strengthening protections for miners and other workers imperiled by unsafe conditions. But the happy T.P.ers will still go out with their swastika and Hitler-mustache signs, whining about tyranny. Wouldn’t it be great if there were a liberal politician who, in the wake of the mining catastrophe, had the courage to stand up and say that federal regulations are often a very good thing? Don’t hold your breath.
And worse is “the damage done by the injection of fraudulent history into the body politic by Tea Party ignoramuses and their enablers” which “will be more profound and lasting than one tragedy.” He argues that ignorance of this sort isn’t inconsequential:
Historical fraudulence is like a disease, a contagious psychosis which can lead to mob hysteria and worse. Consider the role that fraudulent history played in Weimar Germany, where the “stab in the back” myth that the German Army had been cheated of victory in World War I by Jews and Socialists on the home front was used by the Nazis to justify their hatreds.
It’s a historical lie, but it caught on, and Hitler rose to power on it, asking Germans to avenge the (nonexistent) stab in the back! It may be true that the Tea Party will disintegrate before it acquires any real power, as more and more of its leaders are revealed to be fanciers of racist jokes and bestiality videos. But one can’t be assured of it. It’s important to expose the lies for what they are before they further debase the language with their false use of words.
In fact he devoted a chapter of his book Explaining Hitler to the efforts of the Munich Post reporters to investigate the nature of Hitler’s nastiness in the years before he came to power. The Socialist reporters produced revelation after revelation, and got hammered. And don’t even get Rosenbaum started on lumping Obama in with communism, and communism with liberalism. That’s another long tale. History shows otherwise. Think Nikita Khrushchev and Solzhenitsyn’s novels.
So the courts should do next to nothing, and forget empathy, as that might lead to justice, and Obama is a socialist-communist-fascist.
What to make of all this? Well, it is fascinating to finally have the time to sit back and watch Americans explain where we’re supposed to be, and why we shouldn’t be stuck at a dead stop in traffic – and to document the anger and rage, and depression, as we try to provide a way for America to imagine itself, and imagine the world. But maybe that’s best left to Hollywood.
Come visit. You’ll see.