On Trusting Experts

Except for neurosurgeons, no one thinks they’re a brain surgeon, and no one who isn’t a rocket scientist claims to be one – in fact we have that turn of phrase when we want to say someone is making things far more complicated than things need be – hey, it’s not rocket science. And after eight years of actual prosperity and relative peace with that big emotive goofball Clinton as president, who couldn’t keep it in his pants, the nation decided the same sort of thing about that office. How hard could it be? We took a chance on the sneering frat-boy, Bush, as kind of a caretaker president, who would have adult supervision with the seasoned old hands, Cheney and Rumsfeld and the rest, taking care of the hard stuff, if it ever arose. Everyone agreed that was the concept and a rather comforting one – see the CNN discussion on the day Bush announced Cheney as his running mate. How hard could it be? Bush would have adult supervision and would be fine. This wasn’t rocket science nor did it require a brain surgeon. After all, even that hopeless bubba, Clinton, could do the job well enough.

That didn’t work out well and the nation made the necessary corrections, even if that how-hard-could-it-be notion persists. See the quite serious Christine O’Donnell for President talk going on with the Tea Party crowd – Sarah Palin is too much of an intellectual or something.

That’s odd, but not unexpected – and you can probably blame the internet for that. Anyone can look up anything and be as much of an expert as any so-called expert. In fact, Palin and her cohorts in the Tea Party crowd are always ragging on the so-called experts, who think they’re so damned smart. You know the routine – they’ve looked at the data and there is no global warming, and the economists are wrong, especially the Krugman fellow with his fancy-pants Nobel Prize, saying we need more stimulus and the rich should have to pay what used to be the normal tax rate for them. And Christine O’Donnell looked it up – there’s far more evidence that God created the earth in six twenty-four hour days, a little over six thousand years ago, than in Darwin and anything in the field work of all the scientists who followed him. She says you too could look it up. Glenn Beck makes thirty-two million dollars a year doing the same sort of thing, saying that the so-called experts, all the historians with their fancy degrees, are wrong – Teddy Roosevelt was a communist and the Founding Fathers were evangelical born-again guys who wanted this to be a purely Christian nation. You could look it up, or attend his online university.

But it’s more than the internet. There’s advertising – all those commercials for new prescription drugs where the warm voice-over fellow tells you to tell your doctor to prescribe Zubbadobadoft or some such thing for you, because you saw this commercial and he only went to med school, so what does he know? You know you have Restless Leg Syndrome or Chronic Incipient Flatulence – and if he doesn’t think those are serious medical conditions, or medical conditions at all, you know better. You did pay attention, didn’t you? Hell, the commercial ran ten times an hour. And now you know better.

Doctors must find that a tad irritating, but then they’re only so-called experts, aren’t they? At least their irritation is ameliorated by wads of cash and fancy gifts and cool trips to exotic places from the major pharmaceutical companies. That helps. But then lawyers don’t get those goodies, and everyone now thinks they’re a lawyer. That must be really irritating. But what would you expect after two decades of Perry Mason then a decade of LA Law and then Boston Legal, with more than two decades of Law & Order and its variants? We all know the law now. We need no so-called experts.

And you know what that leads to. There is the lawyer, in securities law, who tells his tales of clients who bluster in and demand that this or that be done, and there’s no point in telling them that what they want done is on the far side of unethical and out there in dead-flat-illegal territory. They don’t believe it. But he gamely spends his day telling clients what the actual law is – and they sometimes get it. Divorce lawyers probably face the same sort of thing – no, you cannot have your ex neutered, and there are actual rules for the division of property. You cannot keep that major league baseball team the two of you own all to yourself.

That one is actually playing out here in Los Angeles, where the couple who own the Los Angeles Dodgers is in the middle of a messy divorce, and it’s getting nasty:

An attorney acknowledged under oath Tuesday that he changed a key word in the contested property agreement between Frank and Jamie McCourt – after the parties had signed the agreement and without informing either one.

In the most riveting trial testimony to date, Jamie McCourt’s attorney relentlessly attacked the actions of Larry Silverstein, the Massachusetts lawyer responsible for substituting language that could decide whether the Dodgers are Frank’s alone or property he shares with Jamie.

Gee, after the papers were signed and notarized, all on his own he went in and changed the language – he changed the word “exclusive” to “inclusive” to indicate the Dodgers were the husband’s sole property and not subject to California community property law. Cool. He said it was just fixing the document to reflect what both parties had agreed to, really. The wife, who is also a lawyer, says that’s bullshit. And she is a bit unhappy with all this, as are the Dodgers – they were just mathematically eliminated from the pennant race and Joe Torre, the manager, just quit. No one knows quite what will happen next. Maybe the team will be auctioned off to the highest bidder. It was a bad year – no one’s heart was in the game.

But the law, filled with actual experts, not so-called experts, isn’t that cut and dry. In fact two Supreme Court justices are having a bit of a cat fight, as Making Our Democracy Work: A Judge’s View by Stephen Breyer just hit the bookstores:

Justice Breyer discusses what the Court must do going forward to maintain that public confidence and argues for interpreting the Constitution in a way that works in practice. He forcefully rejects competing approaches that look exclusively to the Constitution’s text or to the eighteenth-century views of the framers. Instead, he advocates a pragmatic approach that applies unchanging constitutional values to ever-changing circumstances – an approach that will best demonstrate to the public that the Constitution continues to serve us well.

It sounds like an attack on Antonin Scalia, doesn’t it? There may be two ways of looking at this, and Fat Tony could be wrong? This is something to watch from the sidelines, when you’re no expert.

And in fact, in the Los Angeles Times, Jim Newton, the Times’ editor-at-large and the author of Justice for All: Earl Warren and the Nation He Made, has a go at providing a handy guide for us amateurs on the sidelines, opening with this:

The United States Supreme Court likes its mystery: Cases are argued in public, briefs are available for all to read, but its real work is carried out in conferences attended by the nine justices alone. So private are those deliberations that in the rare instances when they are interrupted, it is by a knock on the door; the junior justice, by tradition, answers, is passed a note, closes the door, and then delivers the news to the brethren.

Ah this is arcane and mysterious stuff, but Newton is pleased that Justice Stephen Breyer has stepped up to the plate and attempts to “thoughtfully place the court in the larger context of American democracy” – always a good thing. But Newton sees the book as a mixture of “wisdom, modesty, incisiveness and a touch of naiveté.” Newton doesn’t much care for naiveté.

But apparently a lot of this is basic stuff – Breyer reviews the development of judicial review, beginning with John Marshall and the idea the court really can rule that a law is unconstitutional and Congress really ought to try again or give it up, and he also covers the court’s later failure to protect the Cherokees but how they came through in Brown in spite of Southern resistance to the decision, even if that led to Eisenhower sending the 101st Airborne to Little Rock to maintain order.

Newton also notes that’s all just set-up – this is about the craft of judging and what Breyer sees as the court’s greatest duty, the protection of individual liberty. And there’s the rub:

Practical and gentle, Breyer stands in stark contrast to his more voluble counterpart, Justice Antonin Scalia, who is never named in “Making Our Democracy Work” and yet whose presence and philosophy run through this book. Breyer’s most pointed passages turn on his cutting dissection of originalism, the faux-philosophy that Scalia affects to justify his decisions.

As Breyer writes: “Originalists hope that judges will find answers to difficult constitutional questions by proceeding objectively, almost mechanically, to examine past historical fact.”

The idea here is that this is not all that easy:

To begin, there’s the problem of context. When the framers banned “cruel and unusual punishment,” they had no intention of banning flogging, which was practiced in their day. Should the court today uphold flogging, or should it prohibit it as cruel, unusual or both? When the authors of the 14th Amendment wrote that all Americans were entitled to the “equal protection” of America’s laws, the same members of Congress oversaw segregated schools in the District of Columbia. Was the court thus wrong to rule in 1954 in Brown vs. Board that segregated schools violated equal protection? Originalism supplies unsettling answers to those questions.

Then there are the problems of modernity. The 4th Amendment, for instance, recognizes the right of people to be protected from government intrusion in their “persons, houses, papers and effects.” How about their e-mails? Or their cellphone calls?

But there’s a more serious issue:

Originalism is usually offered in dissent. It did, however, manifest itself in a recent decision over the meaning of the 2nd Amendment. The amendment in its entirety reads: “A well-regulated militia, being essential to the security of a Free State, the right of the people to keep and bear Arms, shall not be infringed.” Does that suggest an unfettered, individual right? Should the mentally ill be able to buy arms? Convicts? And did the Framers envision developments in firepower? Is it only the right to own a musket that’s protected? How about a bazooka? A machine gun? A nuclear weapon?

Breyer is calling out Scalia, but indirectly, and asks this question:

He resolves it most eloquently by relying on the words of the late Justice Robert Jackson, an ardent advocate of judicial restraint and the best writer to sit on the Supreme Court. “Just what our forefathers did envision or would have envisioned had they foreseen modern conditions,” Jackson wrote and Breyer recalls, “must be divined from materials almost as enigmatic as the dreams Joseph was called upon to interpret for Pharaoh.”

But then there’s the naiveté:

If Breyer’s analysis is penetrating, however, his remedy is less satisfying. He argues that judges should expand their review of cases to include not just text, precedent, historical context and traditions, but also “purposes and consequences.” That’s useful – undeniable in one sense – but Breyer’s effort is to fashion a more harmonious government, one in which the court works in partnership with the president and Congress in part by engaging in a good-faith analysis of what those officials’ “purpose” was in enacting a law or executing an order.

It flows from Breyer’s principled sense of duty that he’s interested in such a partnership, but the court does not always function well when it looks to help out. To take just one example that Breyer discusses, Franklin D. Roosevelt’s “purpose” in ordering the internment of 110,000 Japanese and Japanese Americans during World War II was, misguidedly, to protect the nation from their illusory threat. The court’s shame was that it gave too much deference to that purpose.

But here’s the real problem:

Breyer genuinely is a gentleman. He imagines himself in an important but civilized exchange of ideas. “However closely divided a controversial decision may be,” he writes, “the justices maintain good relations with one another.”

That’s frankly hard to believe, and certainly not true historically. Justice Felix Frankfurter referred to Justices William Douglas and Hugo Black as “the Axis.” Black and Jackson loathed each other. When Chief Justice Fred Vinson died, Frankfurter remarked that he finally had proof of the existence of God. If the court is enjoying an era of good feeling, it’s a recent one. I suspect that it says more about Breyer than the court that he imagines such goodwill.

And Newton is onto something. See Adam Cohen, a lawyer and a former member of the New York Times editorial board, with this:

Leave it to Supreme Court Justice Antonin Scalia to argue that the Constitution does not, in fact, bar sex discrimination.

Even though the court has said for decades that the equal-protection clause protects women (and, for that matter, men) from sex discrimination, the outspoken, controversial Scalia claimed late last week that women’s equality is entirely up to the political branches. “If the current society wants to outlaw discrimination by sex,” he told an audience at the University of California’s Hastings College of the Law, “you have legislatures.”

What was THAT about? Cohen says it’s that same old guy, who is not exactly a gentleman:

It’s been more than four years since he answered a reporter’s question about his impartiality in religion cases with an under-the-chin hand gesture that some commentators said was a Sicilian obscenity. (A Supreme Court spokeswoman insisted the gesture was “dismissive” but not obscene.) And it’s been about as long since Justice Scalia called his refusal to recuse himself from a case about Vice President Dick Cheney’s energy task force – after he had just gone on a duck-hunting trip with Cheney – the “proudest thing” he has done on the court.

But now he’s really pissed. It’s the Breyer book:

Justice Scalia’s attack on the constitutional rights of women – and of gays, whom he also brushed off – is not just his usual mouthing off. One of his colleagues on the nation’s highest court, Justice Stephen Breyer, has just come out with a book called Making Our Democracy Work: A Judge’s View, which rightly argues that the Constitution is a living document – one that the founders intended to grow over time, to keep up with new events. Justice Scalia is roaring back in defense of “originalism,” his view that the Constitution is stuck in the meaning it had when it was written in the 18th century.

And there it gets hot:

Justice Scalia likes to present his views as highly principled – he’s not against equal rights for women or anyone else; he’s just giving the Constitution the strict interpretation it must be given. He focuses on the fact that the 14th Amendment was drafted after the Civil War to help lift up freed slaves to equality. “Nobody thought it was directed against sex discrimination,” he told his audience.

Cohen thinks Scalia is a bit nuts here, as the idea that women are protected by the equal-protection clause is not new or even particularly controversial:

In 1971, the Supreme Court unanimously ruled that they were protected, in an opinion by the conservative then Chief Justice Warren Burger. It is no small thing to talk about writing women out of equal protection – or Jews, or Latinos or other groups who would lose their protection by the same logic. It is nice to think that legislatures would protect these minorities from oppression by the majority, but we have a very different country when the Constitution guarantees that it is so.

And Cohen argues that is precisely why Scalia in on the wrong side of the debate here:

The drafters could have written the Constitution as a list of specific rules and said, “That’s all, folks!” Instead, they wrote a document full of broadly written guarantees: “due process,” “freedom of speech” and yes, “equal protection.” As Justice Oliver Wendell Holmes explained almost a century ago, the Constitution’s framers created an “organism” that was meant to grow – and to be interpreted “in the light of our whole national experience,” not based on “what was said a hundred years ago.”

The Constitution would be a poor set of rights if it were locked in the 1780s. The Eighth Amendment would protect us against only the sort of punishment that was deemed cruel and unusual back then. As Justice Breyer has said, “Flogging as a punishment might have been fine in the 18th century. That doesn’t mean that it would be okay … today.” And how could we say that the Fourth Amendment limits government wiretapping – when the founders could not have conceived of a telephone, much less a tap?

Well, there is that, but Cohen argues that Scalia doesn’t even have consistency on his side:

After all, he has been happy to interpret the equal-protection clause broadly when it fits his purposes. In Bush v. Gore, he joined the majority that stopped the vote recount in Florida in 2000 – because they said equal protection required it. Is there really any reason to believe that the drafters – who, after all, were trying to help black people achieve equality – intended to protect President Bush’s right to have the same procedures for a vote recount in Broward County as he had in Miami-Dade? (If Justice Scalia had been an equal-protection originalist in that case, he would have focused on the many black Floridians whose votes were not counted – not on the white President who wanted to stop counting votes.)

Even worse, while Justice Scalia argues for writing women out of the Constitution, there is another group he has been working hard to write in: corporations. The word “corporation” does not appear in the Constitution, and there is considerable evidence that the founders were worried about corporate influence. But in a landmark ruling earlier this year, Justice Scalia joined a narrow majority in striking down longstanding limits on corporate spending in federal elections, insisting that they violated the First Amendment.

It is a strange view of the Constitution to say that when it says every “person” must have “equal protection,” it does not protect women, but that freedom of “speech” – something only humans were capable of in 1787 and today – guarantees corporations the right to spend unlimited amounts of money to influence elections.

My, my, my – this is getting hot. But where do you stand? You’re as much of an expert as these two guys, right?

But it’s not just these two guys. Senator Chuck Grassley, the Republican from Iowa, just said this to a group of Republicans – “Americans want and Americans deserve the real original Constitution: A strong military, lower taxes, jobs through the private enterprise, border security, no apologizing for America. And most importantly, respect for life.”

And Ian Millhiser was amused:

Grassley’s call for a return to the “original Constitution” – a term that normally refers to the Constitution before it was amended – is downright terrifying if he actually means it. Slavery was permitted under the original Constitution; women and minorities were denied the right to vote; and basic human rights such as the freedom of speech or the right to choose your own faith were unprotected. Although, to be fair, it’s much more likely that Grassley simply didn’t understand what he was saying when he claimed that Americans deserve this “real original Constitution.”

Steve Benen flagged that and adds this:

That’s probably a safe assumption. Grassley has a tendency to simply make up whatever he thinks sounds good at the time – remember the “sheer idiocy” he offered during the health care debate? – which leads him to think the “real original Constitution” includes provisions that exist only in his imagination.

A refresher – Grassley first endorsed the notion that health care reform might include “a government program that determines if you’re going to pull the plug on grandma” and Joe Klein called Grassley’s comments “sheer idiocy” – the senator “either (a) hasn’t the vaguest notion of what’s in the bill or (b) he is so intimidated by the ditto-head-brown-shirts that he is trying to fudge a response to keep them happy. Either way, he should be ashamed.”

And Grassley has offered tacit support for “Tenther” theories – states can ignore federal laws they don’t like, like health care reform, which may be unconstitutional:

I’m not a lawyer, but let me tell you, I’ve listened to some lawyers speak on this. And you know, it’s a relatively new issue. I don’t think we’ve ever had this issue before of having to buy something. And a lot of constitutional lawyers, saying it is unconstitutional or at least in violation of the 10th Amendment. Now maybe states can do this, but can the federal government? So, I have my doubts.

Any sentence that begins with “I’m not a lawyer, but” is part of the problem, and Benen adds this:

Oh, and did I mention that Grassley will likely be chairman of the Senate Judiciary Committee if Republicans take back the Senate?

Next Grassley will be saying it’s not brain surgery and not rocket science, and the so-called experts are wrong, or there are other experts you could look up. But we do live in the age where everyone’s an expert. Heaven help you if you need actual brain surgery. And how about them Dodgers?

About Alan

The editor is a former systems manager for a large California-based HMO, and a former senior systems manager for Northrop, Hughes-Raytheon, Computer Sciences Corporation, Perot Systems and other such organizations. One position was managing the financial and payroll systems for a large hospital chain. And somewhere in there was a two-year stint in Canada running the systems shop at a General Motors locomotive factory - in London, Ontario. That explains Canadian matters scattered through these pages. Otherwise, think large-scale HR, payroll, financial and manufacturing systems. A résumé is available if you wish. The editor has a graduate degree in Eighteenth-Century British Literature from Duke University where he was a National Woodrow Wilson Fellow, and taught English and music in upstate New York in the seventies, and then in the early eighties moved to California and left teaching. The editor currently resides in Hollywood California, a block north of the Sunset Strip.
This entry was posted in Conservative Thought, Constitutional Law, Supreme Court Issues and tagged , , , , , , , , , , , , , , , . Bookmark the permalink.

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s