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The Personal Life of Judge Neil Gorsuch

How does a Supreme Court Justice’s personal life affect his ability to rule on law?

That question won’t get much airtime in this week’s Senate confirmation hearing for Judge Neil Gorsuch. That’s because the rule of law—the bedrock of meaningful political systems—insists that objective legal principles, rather than subjective human beings, must be our ultimate authority. While lawmakers and presidents have leeway to make decisions based on personal morality or politics—by doing what they think is right, or what they think will play with constituents—a hard and fast prohibition remains for judges. Judges are the last bulwark in any society governed by rule of law. They are the ones who must be objective, and who insist that our collective rules must be followed. As Chief Justice Roberts so eloquently said in his confirmation hearing over a decade ago, “I will decide every case based on the record, according to the rule of law… and I will remember that it’s my job to call balls and strikes and not to pitch or bat.”

Chief Justice Roberts’ image of the Justice as impersonal umpire has real appeal in theory. Judge Gorsuch certainly agrees with it, although he had a different sport in mind when he compared his job to an instant replay reviewer at an NFL game. While Democrats and Republicans agree that stability is found in a system run by objective rules, critics and legal realists have long argued that claims like Roberts’s hide a more cynical reality. There’s a striking concurrence— many people say—between the personal beliefs of conservative originalists and the decisions they reach through supposedly objective jurisprudence. Why is that the case? Are those judges being dishonest about the way they make decisions, or is there something more complex going on?

As Jeffery Rosen points out in an excellent article in the Atlantic, Judge Gorsuch’s principled, Jeffersonian version of originalism doesn’t always lead him to conservative decisions. Like Justice Scalia before him, Gorsuch’s objective methodology sometimes forces him to make decisions that are ‘liberal’ or permissive. Rosen thinks this might play out for him on the Supreme Court in administrative cases, if he limits presidential power more than his conservative predecessors did. Rosen’s argument lends support to the claim that Justices can be objective, that their personal lives don’t need to have significant influence on their legal opinions.

Dahlia Lithwick, in her brilliant piece arguing against Judge Gorsuch, also admits that he can be consistent in method. Lithwick shows how Judge Gorsuch has long sided with religious freedom, even when the religion in question does not concur with his personal values as an observant Catholic/Episcopalian (Wait… both at once? Well, yeah… it’s a long story.…). While she attacks Gorsuch’s fierce adherence to protecting religious freedom at all times, even in situations when those freedoms come into direct conflict with secular peoples’, or, on occasion, with the scientific facts, she does not attack the consistency of his principle. She agrees that he can follow an objective rule, and that he does his best not to waver.

Neither Rosen’s nor Lithwick’s arguments examine the many ways that judges personal opinions affect not only their moral beliefs but also their methodologies. That’s likely because such examinations are speculative, and nearly impossible to confirm. But the personal lives of Supreme Court Justices affect everything about their thinking and decision-making. The forces that influence their private lives—schools, religions, their families’ values and choices—also determine the principles that guide their intellectual work. While a great Justice might indeed be able to think objectively about cases, and to let the rule of law guide their decisions, it is impossible for any human being to be entirely objective about their world-view. That is true for everyone; judges are no different. The Justice’s subjective world-view is the elephant in the confirmation room. The subtle personal influences are often ignored by those who write seriously about law.

While Judge Gorsuch’s Jeffersonian originalism might be an objective system that he uses to make his decisions, only an examination of Neil Gorsuch’s personal life will reveal how and why he thinks that system is the best way to be objective. Any examination of his life will necessarily involve fundamental ethical, moral and philosophical questions. What does he thinks a person is or should be? What role should religion play in a person’s life? A society’s? What are the moral limits of a person’s rights and responsibilities when they encounter another’s? What is right and what is good? Are we ever able to be right and good? Do men and women differ from one another? What about race? And so on. Thankfully, there is no room in a Senate confirmation hearing for lawmakers to conduct a philosophy seminar with their would-be Justices. It remains the private responsibility of each Justice to rigorously examine his or her own beliefs, and to discover the ways in which their world-view influences their decision-making process at every step. That self-examination should be a required part of the job.

A great Justice is a self-aware Justice. A great Justice is one who understand she will never be able to separate her personal story from her professional decisions. She must acknowledge that hard fact, even though it goes against her necessary belief in the rule of law. In her self-examination, she must learn to balance her subjective instincts with her sworn duty to uphold the law. She must begin every case by admitting her fundamental failure to be objective, and then she must do her best to claw back from that failure. She must work her entire life to be as objective as she possibly can.

Ironically, anyone who actually admits that their personal life influences their jurisprudence gets attacked for their indiscretion. Several years ago, Justice Sotomayor admitted as much. “I would hope that a wise Latina woman with the richness of her experience would, more often than not, reach a better conclusion [than someone without that background].” Justice Sotomayor had to retreat from that statement in her confirmation hearing. She reportedly told Senators that her ‘wise Latina’ comment was “a poor choice of words.” But it wasn’t a poor choice of words at all. It was an admission of fact.

Only the rare Justice who admits her personal biases has any chance to mitigate the effects of those biases on her legal reasoning. Only the person who knows herself intimately can ever step away from herself for long enough to assess whether or not she is being objective.

It is no wonder that most Justices are incapable of that self-examination. To excel in law school and in the professional world, they have to master logic and argument, legal history, philosophy and technique, but they do not have to master themselves. Genuine self-examination works against the very skills they needed to succeed. Lawyers are instructed to be objective and impersonal. They argue both sides of a case. They must remove personal bias and uphold rule of law. The very people who succeed most in those admirable intellectual skills—the Justice Scalias of this world—are often the most clueless about their own personal biases. They have been trained to ignore personal bias. They are always the best in their classes.

And so there are several questions I want answered by would-be Justice Neil Gorsuch. Only these questions, and his ability to answer them successfully, will help me decide his worthiness to adjudicate the law. Unfortunately, these questions won’t be asked by any Senators this week.

“Please, Judge Gorsuch, describe for us your world-view in detail. What are the most important personal and professional influences in the formation of that world-view? How do you feel about it now? And how have you seen your fundamental beliefs change and develop in recent years?”

 

Trumpillo: How Donald Trump resembles Rafael Trujillo

Today in the US election, Donald Trump tried to “revoke” the Washington Post’s press credentials. This affront to the free press – one of the basic norms of democracy – comes on the heels of Trump’s other unprecedented anti-democratic attack this month, against an independent judge, Gonzalo Curiel. Trump’s behaviour, while shocking, is perfectly consistent with other historical narcissist, would-be dictators’. They often want to ban a free press (as much as they can) and attack the independent judiciary because they see the State as an extension of themselves. An attack on the leader as an individual is indistinguishable from an attack on the State, and in their minds it should be treated as such. But to call these positions ‘fascist’ is to overstate their coherence as ideology. Trump is no right-wing ideologue with a grand and aesthetic world-view built on deep-set hatreds. His tradition is in the smaller, sordid, New World tradition of a closer neighbour. Trump is more like the infamous Dominican dictator, Rafael Trujillo.

Whereas Hitler tried to maintain an ideological consistency along side of his rampant narcissism, Trump, like Trujillo, cares about only two things, both of which are inexorably tied to his myth of himself. Trump values strength and wealth, and not much else. The particular aspects of his political ‘program’ are secondary to his two cornerstone values. His hatred of Muslims and Mexican immigrants could easily switch focus towards any other group or class of people if need be, if circumstances change. Muslims and Mexicans aren’t the point for Donald Trump – all that matters is that they are ‘other’, that they are here, and that he can act strongly and decisively against them. A similar crass narcissism can be found in Trump’s economic ‘program’. Donald Trump is no believer in capitalism as a system; he certainly does not have any faith in the free-trade global capitalism that so many neoliberals espouse. He is interested in wealth, only wealth – not free flowing capital or open markets per se. Donald Trump doesn’t care where the wealth comes from or how it was made, as long as he and ‘his’ country can have it. He would just as easily support feudalism or outright theft as global capitalism, as long as he can personally get rich from it. Again, Trump’s classic narcissism allows him to understand his own, personal success and/or failure as the same as the State’s. Personal wealth acquisition is the root of his ‘system’. If he can get rich doing something, it must also be good for the country, right?

Strength and wealth, as Donald Trump understands them, are essential qualities of a successful man – and that’s why Trump’s mythologized masculinity is, in fact, his single-most defining feature. In Trump’s mind, great men are always ‘strong, powerful and rich’. They are patriarchal and paternalistic; they protect women and kids and lesser men. Trump imagines that a great man who exhibits these ‘strong’ qualities in business and in his personal life is entirely qualified to lead his nation.

Trump’s comic vanity (whether in his clothes or hair or his buildings’ décor), his glorification of wealth over any functional economic system, his racist hatred of some ready and easy ‘other’ (but mainly to show his own ‘strength’ in protecting lesser citizens, without much regard for any internal qualities of the people supposedly hated) – all these qualities Trump shares in abundance with Rafael Trujillo. Trujillo was another right-leaning, wealth-obsessed, ‘strong-man’, who despised (and murdered) those darker skinned Haitian immigrants encroaching into the Dominican Republic from across its only border. Like Trump, Trujillo was not an ideological person; he was more pragmatic: an over-masculinized narcissist. That leads to the key similarity between the two men. The primary way Trujillo’s toxic masculinity manifested itself was in the way that masculinity always manifests itself: extraordinary misogyny.

Rafael Trujillo’s sexual abuse of young women was infamous and extreme. By the end of his 30 year reign of terror, Trujillo was capturing and raping a different young girl every night. He raped someone new, every night, for years on end. (Shocking dramatizations of Trujillo’s endless rapes can be read in Mario Vargas Llosa’s The Feast of the Goat, in Julia Alverez’s In the Time of the Butterflies, and in Junot Díaz’s The Brief Wondrous Life of Oscar Wao, as well as in “Bottlecap”, my own story about Trujillo’s adolescence in The Iron Bridge). Trujillo’s misogyny wasn’t some terrible by-product of his entitlement and absolute power; misogyny was his foundation as a person and a leader. When authoritative masculinity is believed to be the only quality necessary for real leadership, daily misogyny is the most powerful way to exercise and practice that all-important ‘skill’. Men who value masculinity above all have to be misogynists. Control and abuse of women is never a by-product for men who believe in masculinity with such faith.

It almost goes without saying that Donald Trump is another rampant misogynist, although not quite in the Trujillo tradition, and that his life-long misogyny is tied to his own shocking ideas about strength and leadership. The best document of Trump’s misogyny that I’ve read is right here, Franklin Foer’s piece for Slate. Foer’s piece should be read closely, along side of any brief biography of Rafael Trujillo. The similarity will be clear. Trumpillo.

A Reminder: Merrick Garland is the Only Legitimate Nominee

I’ve been growing more and more frustrated with the Democrats lack of force around the open Supreme Court seat. The sitting President of the United States has chosen his nominee for the Supreme Court. That is the end of the story. Unless President Obama withdraws Merrick Garland’s name, any other nominee is illegitimate. The Senate will break the law if it holds a vote for someone other than Merrick Garland.

The Senate has the power to ‘advise and consent’ the president’s choice. Some members of that body advised Obama not to put forward a nominee this year. That’s within their right – it is giving their ‘advice’. But Obama didn’t take their advice. He is not required to do so. Now the Senate has to fulfill the second part of its constitutionally mandated responsibility: it must consent to, or deny, this nominee. The Senate can filibuster the vote, which effectively denies Garland, as it did with Abe Fortas in an election year, but it is still required to hold that vote. Senate Democrats should forcefully attack Republicans, every day that this farce continues, for not doing their duty.

It does not matter whether the next president is Donald Trump or Hillary Clinton, Bernie Sanders or Ronald McDonald. He or she does not get to choose this nominee for the Supreme Court unless this sitting president leaves office without having put a name forward. And why does only President Obama get to choose? Because he was in office when the seat became vacant.

Many people are worried that a President Donald Trump would be a dictator with fascist tendencies. It’s an understandable concern, but there would be little to worry about if United States government officials followed the Constitution. That document is built to thwart dictators and kings. A dictator is only possible in the United States if other branches of government do not do their jobs. A dictatorship is a system of government, not the actions of a single, all-powerful leader. There is no dictatorship unless everyone around the leader allows him to behave as one.

So this is a test. Every Senator and Congressman needs to make more noise. And every sitting Supreme Court Justice has an immediate obligation to publicly criticize the Senate for refusing to vote on Merrick Garland – as Ruth Bader Ginsburg did, obliquely, this week. Their own legitimacy as the third branch depends on it. If the Justices do not speak out on this basic, non-partisan, reading of the Constitution, they are no longer acting as the last bulwark against tyranny.

When a branch of government makes up new Constitutional rules on the fly – rules such as “the advice and consent of the Senate for SCOTUS nominees does not apply in election years” – the seeds of dictatorship are planted. Those seeds will eventually grow into ugly blooms. If the Senate is allowed to disobey rules on their whim, if they can act with impunity, then so can a President. That is why any nominee that does not arise from the constitutional text as plainly stated is illegitimate.

Scalia at Sea

Justice Antonin Scalia was never shy in his defense of originalism, the widely influential theory of Constitutional interpretation to which he subscribed. Only by sticking close to the Constitution’s original intent, which is strictly encoded in its words, can a Justice remain objective in his decision making. “Once you abandon what they [the founders of the Constitution] thought,” Scalia claimed, in a 2009 debate with Justice Breyer, “you are at sea.”

You are at sea – it’s the powerful image Scalia returned to time and time again. For Justice Scalia, originalism was a stable life-raft on an otherwise swirling sea of subjective legal argument. Using originalism meant that his reasoning wouldn’t be exposed to the whims of his personal values, his own sense of right or wrong. Originalism, in contrast to other approaches, removed the subjective values of the judge, and thus offered uniformity and integrity to his rulings.

Many on the left were skeptical of Scalia’s claim. It seemed more than a coincidence that so many of Scalia’s ‘objective’ rulings fell in line with his personal beliefs. Scalia’s most important opinions and dissents – on an individual’s right to firearms, on gay marriage and sodomy, on campaign finance reform, on Bush v. Gore – were so strongly partisan. I have often wondered myself if Justice Scalia was more of a political animal than a pure legal mind, more interested in getting particular results than in sticking to his strict theory of Constitutional interpretation. That, of course, implies that Scalia was repetitively lying about his so-called objectivity.

But Scalia had many friends and admirers, both liberal and conservative, who uniformly paint a portrait of him as honest, passionate, brilliant and kind. Most importantly, everyone who knew him agrees that he was adamantly dedicated to the rule of law. His defenders use his strong – and relatively liberal – 6th and 4th Amendment rulings, which protected the rights of criminal defendants, as proof of his objectivity, examples of his faith in a neutral theory of interpretation. Although there are exceptions to his originalism (many of them well explained in Jeffery Rosen’s excellent piece in The Atlantic), Scalia did generally follow his own set rules. So I have ended up believing his defenders. I don’t think he was dishonest about his objectives or methods. But it is also clear to me that Scalia possessed a huge blind spot when he utilized his own rules. There was something crucial about his own process that he simply didn’t understand.

Too often we assume that a judge’s subjectivity applies exclusively to their values and beliefs. We think it is ruling for what they believe in, getting the results they want, that makes them ‘subjective’. (Scalia claimed as much in the above mentioned debate with Justice Breyer.) But any judge’s personal belief is only a small part of his or her subjectivity. Equally important is her methodology: how she decides the legal questions that she must face. In Scalia’s case, originalism was far from an objective methodology; it was the product of his own subjective life experience.

In “The Constitutional Catechism of Antonin Scalia”, a 1990 article in The Yale Law Journal, George Kannar argues, persuasively, that many of Scalia’s legal opinions show the strong influence of familial and cultural forces. Kannar outlines two of those forces in particular, one literary, one religious.

Scalia’s father was a poetry professor committed to New Criticism, the mid-century literary theory that said – roughly – all poems should be read and analyzed independently of their ‘purpose’, of their author’s intent. Each poem needs to stand on its own feet; the intention behind its writing does not determine its meaning for the reader. That theory was a powerful and important reaction to the dominant historicism of the time, persuasive to many scholars. It was also the bread and butter of Scalia’s intellectual world at home. New Criticism, which has since been amended and attacked by other theories, must have served as a powerful force in Scalia’s life, as it is shockingly close to what he practiced in his own Constitutional interpretation.

In addition, Antonin Scalia was educated in pre-Vatican II Catholic schools, when the Baltimore Catechism was the primary text students memorized and recited, word for word. Doctrine, for American Catholic students of Scalia’s age, was rooted in that text. If you wanted an answer to a religious question, you looked to the precise wording of the Baltimore Catechism to find it. Answers were always available; they were real and concrete; and they were found in the plain meaning of the catechism’s words. This second religious force is also easily recognizable in Scalia’s brand of originalism.

There were, of course, other key forces in Scalia’s life that Kannar doesn’t explore in the same depth: a military school background, his family’s respect for authority and tradition, an immigrant son’s ambition, his only-child status. All of these forces were equally subjective and influential on his intellectual development. I don’t think it’s a coincidence that Scalia’s interpretational methods as a Supreme Court Justice – as well as his integrity as a person – matches up so seamlessly with the linguistic and cultural values of his youth. That claim, of course, stands in direct refutation to what Justice Scalia declared about originalism. It says, in contrast, that Scalia’s methodology was his personality. It says Scalia’s particular brand of originalism was highly subjective. It says it was him.

The personal quality that most amazed me about Antonin Scalia was not his extraordinary brilliance, but rather his blindness to his own origins. How did someone so astonishingly perceptive and intelligent live so unaware of his own method’s subjectivity? How did Justice Scalia remain so unwise?

Excelling in the legal profession is not at all synonymous with learning about and confronting your own biases, your own subjectivity. On the contrary, great law has always been more aligned with limiting and ignoring your subjectivity as much as possible. A preeminent legal mind is supposed to rely on objective methods and techniques, not personal opinions. She is supposed to be profound in reasoning, but stoic and restrained in humanity. While the purity of that division has been long attacked by legal realism and other related critiques, the basic bias holds. Whenever a judge calls attention to his or her own subjectivity, even in a minor way – as Justice Sotomayor did with her ‘wise Latina’ comment in her confirmation hearing – her ability to administer justice is called into question. Judges are encouraged to self-abnegate, not self-investigate. And that encouragement must have been especially strong in a family like Scalia’s, where his father’s professed New Criticism meant ignoring the whims of historical ‘purpose’, the whims of any writer’s or interpreter’s personal history. It makes perfect sense, actually, in the wider culture of law, that a man with as little self-knowledge as Antonin Scalia, but with as much intelligence and acerbic wit, could rise as high as he did and influence so many.

Justice Elena Kagan wrote, in her memory of Scalia, that his opinions will be read in a hundred years, and that his method of interpretation will live on. While that is certainly true, I suspect her comments are colored by her personal affection for a brilliant, warm friend. There is another, parallel truth to Justice Scalia’s legacy. History will not be kind to his opinions. Many of them have a strain of ignorance running along side their erudition. If Scalia had had more self-knowledge, he would have practiced his originalism with the same vigor, but with greater sensitivity, and more refined results. He would have won more important cases. And, most importantly, he would have been a more just, fair and humane judge.

Without self-knowledge, a Supreme Court Justice is lost at sea in the worst possible way – Scalia’s way. Justice Scalia swirled in a storm of personal bias in the very moments he thought himself most objective, most grounded. Worse still, in the blindness of his storm, he dragged down with him millions of suffering Americans – gay Americans, disenfranchised Americans, victims of gun violence – every time he wrote one of his controversial, ‘objective’ opinions.

Individual Rights – Our Gift and Our Curse

I’m a liberal. When those disgruntled ranchers in Oregon stormed and occupied federal land, I agreed that they should be arrested and tried. When gay marriage was legalized in the United States, I cheered – and only mumbled displeasure that Americans didn’t do it back when Canadians did. I’m clear about my opinions – but then there’s great hypocrisy in what I believe, in rejecting one brand of activism while supporting another. Something crucial is shared by libertarian Oregon ranchers and urban gay-rights activists alike, and although few of us acknowledge that shared belief, it can’t be denied. We all love our individual rights.

The American legal system is based on Enlightenment values, which boldly declare the sanctity and integrity of the individual. The vast majority of Americans believe that the US Constitution defines us as discreet individuals, with inalienable rights possessed from the moment we’re born (or earlier, some say), who have – after that fact – agreed to join together in a nation and society. Each person is a castle, this interpretation says, with particular walls (or rights) that cannot be legally breached. For hundreds of years we’ve argued over the relative boundaries of those walls, but few of us ever question their existence in the first place. Some of us believe our individual rights apply most profoundly to our property and our guns – those ranches and arms that the government can never take away without exercising extreme tyranny. Others believe our individual rights apply most importantly to our bodies, lovers and voices – the human integrity that can never be infringed without the government exercising extreme tyranny. Both positions are grounded in a sacred respect for individual rights that isn’t, in fact, an objective truth, or even a 100% clear postulate of the Constitution. It’s an Enlightenment principle – an ideological position – that we have internalized and accepted as the foundation of our law.

In short, we didn’t have to structure our society as a gathering of castle-like people, each with isolated, impenetrable walls – but we did. That historical choice has made us individually strong. It has also made us hypocrites.

Our collective hypocrisy (or, more generously, knowing irony) was made most clear to me recently during the Oregon standoff, when mischievous Americans sent the self-sequestered ranchers boxes and boxes of sex toys. One rancher, in disgust, and in a hilarious video, mocked and dismissed the gifts by sweeping them off the table – as if the individual rights implied by sex toys had nothing to do with the individual rights he was willing to fight for. In response, the merciless mocking of the ranchers on twitter and other social media – while understandable to me – also showed a similar blindness. In terms of legal theory, those ranchers are not so dissimilar from radical progressive rights activists – they are each arguing vociferously, sometimes violently, for the sanctity of their declared castle walls. Personally, I think one set of individual rights should be limited (our access to guns and 100% sanctified property) while another set should be untouchable (our marriage and abortion rights, and free speech) due to their relative impact on other people. But, philosophically, isn’t that argument suspect? Isn’t it an act of ideological hypocrisy to chose one set of individual rights over another, simply because I think they’re better, because my life experience has taught me that?

The greatest gift of Enlightenment law is also its greatest curse. There’s an arrogance and belligerence in our voices whenever we declare our individual rights: Back off, government, I am allowed to say whatever the hell I want to say. I can own my ranch and my own gun without you taking it away. I get to marry whomever I want and it’s none of your damn business if that person is a man or a woman. I have integrity as an individual – that’s what we’re all saying. The draw bridge is up, and you’re not allowed to breach my castle wall. It should be obvious, then, that for every individual right we claim – whether conservative or liberal – there is a corresponding violence exercised on our community.

In some societies and cultures, especially historical and non-Western, the community trumps the individual. In those societies, people don’t live in individual castles; they are more like porous shelters adjacent to one another, with the only impenetrable walls those surrounding the entire community. Individual rights, in these societies, can be subordinate to the needs of the group. This, or course, exercises a kind of violence on the individual – excommunication, exile, burning at the stake. There can be an oppressive demand of conformity (sexually, socially, politically), and fidelity to community that we, as an Enlightenment society, have largely rejected.

But even in Western societies that enshrine the individual, there are cultures that lean towards one side of the spectrum or another. Americans, as we all know, legally and culturally, are (in theory) at one extreme of that spectrum, profoundly locked in individual castles. A striking comparison to Americans can be seen when we look at the ‘duty to rescue’ in the French civil code (and other countries’ civil codes, too). In American tort law, if you’re running alone on a beach and you see a person drowning – and you think you could save them without hurting yourself – you are still not legally required to come to their aid. There is no duty to rescue. Ultimately, your individual castle wall is sacred, and you do not have to breach it. In French law, however, in that same scenario, you are required to come to the endangered person’s aid. You are liable for tort damages if you don’t help someone when you can. In short, the French person’s castle wall is more porous than the American person’s wall. Certain situations require a citizen to breach his or her boundaries. This cultural and legal difference in individuality is why, I suspect, French café and communal life is so famously robust compared to the English. It is also why English speakers in France (and plenty of Algerian immigrants) can sometimes feel subsumed and oppressed by the communal beast of French culture.

The irony seen in that video I mentioned earlier arises when we, who have all agreed to live inside our individual walls, criticize other members of our larger cultural/legal community for living inside the wrong type of walls. Both libertarian ranchers and human rights activists have largely sanctified the individual over the community. We have built precarious ‘communities’ made up of discreet individuals, who are only called a community because they have all accepted one set of rights while rejecting another. That’s certainly not a ‘community’ in any old fashioned sense. And because of the utter disgust we have for each others’ politics, and our attempts to distance each other from the positions we find repugnant, we have largely refused to acknowledge the shared Enlightenment values that have led to our fractured communities in the first place.

Here’s another example: both Oregon rangers and Michael Moore are enamoured with individual rights. Moore cherishes his free speech right – and all the ways in which that right sanctifies him personally. He uses the sacred wall of free speech to garner respect and integrity for himself (by waving the flag ironically, by featuring himself as a celebrity in his every documentary, by acting as a potent commentator and relevant pundit on issues that matter to Americans). But there’s a discernable arrogance and belligerence in his voice; that tone often comes up when someone stakes a claim. Moore’s arrogance reminds me, strangely enough, of those ranchers, puffed up proudly with delusional fantasies of their own integrity.

It’s true, of course, that some political movements and leaders double down on the building of sacred walls (ehm… Trump), while others actively try to breach those walls in an attempt to connect us to each other with rickety bridges (Sanders). Either way, in Enlightenment-based, American law, hypocrisy is never far from the surface. Personally, I’m willing to acknowledge my hypocrisy boldly, and to stick with the still relatively precarious bridges of a Bernie Sanders movement (unless we want to start rethinking what an individual is, in law, from the US Constitution on up). But I’ll never do that in a strident tone. Acknowledging hypocrisy should have the effect of making us understand those we disagree with, even those we vehemently disagree with, instead of hating and ostracizing them. We are not necessarily ideologically pure; they are not necessarily ideologically corrupt. Of course, there is little desire for introspection of any kind on the right these days, and that’s a crime we’re all paying for. I only fear there is less and less of a desire for introspection on the left as well.

We should face the ugly facts: the Enlightenment, as we’ve interpreted it, enshrines us each in our individual castles. We have long decided that the walls surrounding us are sacred, and we’ve largely believed and internalized our lesson. The substance of those walls might look radically different to one group or another – whether it means property and gun rights, or sexual and social rights – but structurally they’re the same. The first amendment is one line away from the second. We are all children of the Enlightenment, and nothing is gaining by denying our shared parentage.

David Souter’s Quiet Resistance

Think for a moment about what could’ve been.

In 1990, Justice William Brennan retired from the US Supreme Court, and George H. W. Bush, early in his presidency, replaced him. This was a conservative president’s dream; Bush couldn’t have been more excited by the opportunity. Brennan was not just your average, middle-of-the-road Justice, but rather one of the most activist liberals in the history of the Court, a prime driver in hundreds of signature progressive cases stretching from the 1950s to the late 80s. Brennan was a liberal champion of issues like affirmative action and busing, the right to privacy, abortion and women’s rights, restrictions on presidential power, the death penalty, and search and seizure. There was no doubt in anyone’s mind that President Bush would find a staunch conservative to take Brennan’s coveted seat, and that Bush’s replacement would immediately redirect the law severely to the right.

There was only one problem. The highly-publicized Senate confirmation process for Supreme Court Justices had grown more and more contentious recently. In 1987, Robert Bork, a well-known conservative judge, had been rejected by the Democrat majority Senate because his written views were too extreme, and too well documented. Although Bush would’ve loved to appoint someone just like Robert Bork, it was risky. Any judge who had served for a long time on the federal bench would have too much of a paper trail, would be too well know, and would likely not get past the Democratic Senate. What Bush needed was a stealth candidate: a radical conservative, but relatively unknown. Someone who could sneak through the Senate process without giving away too much of his or her judicial philosophy, and who would then deliver extreme right-leaning opinions on the Supreme Court for the next twenty to thirty years.

Bush’s Chief of Staff, John Sununu, knew just the man. David Souter was a life-long Republican from Sununu’s home state of New Hampshire, a former state Attorney General and judge on the superior court. He had only very recently been appointed to the federal bench. He had virtually no paper trail, no way anyone could pin controversial conservative rulings on him. And best of all, Sununu could assure President Bush that Souter was the real deal, a conservative in the mold of Robert Bork, but without Bork’s past. He was the perfect nominee.

Bush interviewed Souter, and agreed. And so when Souter’s nomination came before the Senate there was no real ground to strike him down. Although nine of the most liberal Senators, including Ted Kennedy and John Kerry, acted on their fears of who he might be, and voted against him, the majority let Souter pass.

For a year or two, Justice David Souter appeared to be just the man that President Bush had wanted, and that the liberals had feared. But it didn’t last. Souter’s ‘switch’ was heralded by a 1992 case, Planned Parenthood v. Casey, the most important abortion-rights suit since Roe v. Wade. Souter’s position in that case wasn’t exactly liberal, but he did, in a joint concurrence, vote to uphold Roe’s central right to abortion. To everyone’s great surprise, a woman’s right to abortion, while curtailed, wasn’t going to be fully surrendered under Souter’s watch.

In subsequent years, more relatively liberal rulings followed. Souter proved to be no Robert Bork.

In my opinion, Justice Souter’s increasingly liberal rulings in his almost nineteen years on the Court make him the most important Justice of the past fifty years. That importance is largely due to his limiting force rather than his transformational force, so it’s easy to overlook and to underestimate. Souter was not the most liberal Justice of the past half century, not by a long shot, nor did he have the most influential jurisprudence (that honor, so to speak, probably goes to Justice Scalia), but Souter’s vote was the one that should’ve gone the other way on every significant case. If Souter had been the Justice that President Bush had wanted, the Justice that Bush thought he was getting, then abortion would most likely be illegal in the United States, and the first amendment Establishment Clause would no longer have the same limiting force, and that’s just the beginning. When Souter retired – reportedly out of disgust for his job, thanks in part to the extreme partisan ruling in Bush v. Gore – he made sure to wait until a Democrat would replace him. President Obama had that honor, and filled Souter’s seat with Sonia Sotomayor. Without Sotomayor’s vote, many other key cases – on gay marriage and on the Affordable Care Act, just to name two – would’ve certainly gone the other way. And so while the period from around 1970 to today is characterized by a conservative revolution in law, a revolution led by numerous judges and politicians, that revolution is only partially realized. Its limitation is largely due to David Souter.

President Bush got the Justice he wanted and expected in his second appointment to the Supreme Court in 1991. Justice Clarence Thomas, another relative unknown, was chosen to replace the staunchly liberal Thurgood Marshall. Justice Thomas did what was expected – he pulled the law radically to the right. He remains the most reliably conservative member of the Supreme Court today, and was named the model Justice for the second President Bush’s appointments – Justices Roberts and Alito. Souter should have been like Clarence Thomas. Many people thought that he would be like Thomas. If he had been like Thomas, he would’ve joined a clear majority that would have radically transformed the law.

The big irony of Souter’s ‘liberal transformation’ is that all he actually did was maintain the traditionally conservative doctrine of stare decisis – respect for precedent. Ever since Edmund Burke, conservatism has been defined by some version of stare decisis: don’t move too quickly on any change, keep what’s ‘good’ about the past, don’t be seduced by revolution. For decades, the Republican party defined itself by respect for precedent, socially, politically, legally. Ironically, what has happened to the Republican party over the past fifty years is nothing other than radical revolution; the party’s values have little in common with traditional conservatism. This is as true in law as it is in politics. Souter was merely an old-fashioned conservative from a quainter era, a New Hampshire conservative, a man who believed that the legal decisions of previous Courts should never be thrown out automatically, a judge who practiced stare decisis. The irony of Souter’s liberalism is really the irony of all of today’s politics. The so-called liberal progressives are behaving like conservatives (they are trying to conserve the values and legal trajectories of yesteryear), while the so-called conservatives are behaving like radical revolutionaries, of the right-wing variety.

There’s a bigger question behind Souter’s liberal transformation. Why was Souter, a solid Republican, able switch positions on so many key issues when other Republicans could not, when they simply rode the right-breaking wave of a radicalized party? The answer lies, I think, in Souter’s humanism. Souter has always been a wide and vast reader, a history buff, a lover of the humanities. He hated the stale legalism of the Supreme Court, despised the many ways in which the law retreats into legalistic, intellectual arguments. Robert Bork once called the work of a Supreme Court Justice “an intellectual feast”; Souter called his job on the Court an annual “intellectual lobotomy”. This is a telling contrast. Many right-leaning Justices eschew humanism and its teachings – they are too busy thinking about strict, original readings of the text. They love to think about the law as a stale document, a set of rules and restrictions that we can cling to in a cultural storm, instead of as a living tradition that affects real people in the real world. To think actively about the human beings affected by your cases requires empathy, historical perspective, and love. It’s the kind of lesson that David Souter must have learned from the humanities, and it’s the quality in his character that allowed him to resist – for all Americans – a radical revolution in American Law.

UPDATE: John Q. Barrett of St. John’s University writes an interesting and persuasive critique about how Bush never really vetted Souter properly, and about how the President shouldn’t have been surprised by the Justice’s liberal results.

Bush’s recent biographer, Jon Meacham, claims in an interview that President Bush was, in retrospect, disappointed with Souter and pleased with Clarence Thomas. Meacham says the former President told him as much.

Limited vetting notwithstanding, Souter’s dramatic effect shouldn’t be underestimated.

The Shield of Aeneas

My favorite image in all literature – every book I’ve ever read – might very well be in Book 8 of The Aeneid. Like most plot points, characters and images found in Virgil’s epic poem, Aeneas’ shield is, on one level, just a Latin rip off from a Greek source: it strongly resembles Achilles’ shield in Book 18 of The Iliad. Both are gifts from the hero’s goddess-mother, forged by the god of fire, to be used in an upcoming battle. (Virgil didn’t do a very good job of disguising his source.) But there are also key differences between the two. Virgil’s epic poem is as political as it is mythological, and so while Achilles’ shield is decorated with ahistorical scenes drawn from the full range of life – scenes of war and peace, prosperity and suffering, heavens and oceans – Aeneas’ shield is decorated with specific events taken from Roman history, including the recent victory of Augustus at Actium against Mark Antony and Cleopatra. Achilles’ shield is the stuff of myth, but Aeneas’ shield is the stuff of propaganda.

The propagandistic value of Aeneas’ shield is not the reason I’m so into it as an image. I don’t care much about Roman history. I don’t pick Augustus over Mark Antony, and I don’t have any need to legitimize his god-like rule. I find it kind of interesting to see how Virgil used Greek images for Roman political ends, but that’s it, really. It’s nothing more than interesting.

The events portrayed on Aeneas’ shield are historical, but they are taken from his future, not his past. They are the scenes of glory that will arise from his Fate. Aeneas is destined to defeat his Latin enemies and found a new city. His direct descendants, on this very spot of land, will eventually found Rome. Aeneas is told his Fate on several occasions throughout the poem, so it’s not new information, but when he receives his shield all the implications of it, the ultimate meaning of his life, are made most clear. It’s all laid out in burnished bronze before him.

A shield like that is the ultimate protection a person could have. We should all be so lucky to go into our battles with such armor. Aeneas will be guarded – quite literally – by the future that Fate has promised him, a glorious future. His shield is the promise from the gods that not only will he win his present battles in Italy, but that those battles will eventually have great meaning for the world. His shield functions as a clear message and command: everything you do is worthwhile; everything is meaningful. All arrows, spears and blows directed at you will bounce right off your perfect shield – you know that for a fact. Your future, after battle, is already promised. So act with that knowledge. Be brave, be reckless, fight ruthlessly. Nothing will ever touch you. You are entirely protected.

Back here, in the real world, this world with a shaky economy, a precarious climate, rampant drug use, massive inequality, and plenty of nativism and racism, Aeneas’ shield looks like complete bullshit. It’s an enticing and beautiful image, the kind of assurance and meaning we all desire, but it’s also an illusion. There is no shield that promises we will all mean something in the glorious future. There is no promise that we fill found a new Rome. (But then, concurrently, there is no promise of apocalypse either.) And so, just as The Aeneid can be read as propaganda justifying an empire, Aeneas’ shield can be read as our personal or communal propaganda – those stories we tell ourselves to justify our countries, our politics or economics, our fantasies of triumph or destruction, our personal choices and desires. You could argue that we are paralyzed without those imagined shields – they display our dreams of the future, our fantasies of worth; they are imbued with the public or private, conscious or unconscious, faith we have in that future. Where are we without such faith, without illusions? How can we have the strength to act if we are not protected by our dreams?

It’s easy to read The Aeneid with a Jungian focus – the hero’s journey mimics our personal passages through mid-life. Back in Troy, as a young man, Aeneas had a pretty good idea of what his future would look like. He had reasonable expectations – illusions of a blissful life in Troy with his wife Creusa and his son. But then Troy falls disastrously, his wife dies, and Aeneas is exiled into uncertainty, suffering, and despair. His expected future proves to be an illusion. This – Jung might say – is what happens to all of us in mid-life. Those expectations we had as young people don’t feel so real anymore,  even to those people whose lives have played out in the best possible way. And when the terms of life are not what we expected, we feel unmoored, cast out to sea. We must endure private, epic, heroic journeys. We must gain the physical and moral strength to face uncertainty without despair; we must act to improve ourselves and our world even when it seems completely hopeless or useless. It takes mammoth strength to live in such uncertainty. And, moreover, we need to be extremely lucky, which few of us are. The epic Jungian journey is a powerful story for individuals, but also for communities and nations. And because that story appeals to me, and that Jungian reading of The Aeneid appeals to me, whenever Aeneas is told his Fate, and especially when he receives his perfect shield, Virgil’s poem feels condescending, indulging in a brazen act of denial. No, no – says the shield – you don’t have to worry about your uncertain future. You don’t have to rebuild yourself from scratch, rebuild your whole world in the face of an empty helplessness. I know you lost your old illusions of Troy, but guess what? Here’s a new illusory story for you, a better lie to protect you. You’ll love it. Take it. It’s yours!

I love the image of Aeneas’ shield even though I don’t believe in it. We all tell ourselves those illusory stories. And, furthermore, just as Virgil’s shield is a rip off from an earlier source, our false stories are rip offs from established tropes. Our fantasies of fame, money, love, sex, whatever – they are ultimately just versions of what we’ve already seen played out by others, of the perfection we think is out there, waiting for us in the future. We’re all pretty much Romans stealing fancy shields from the Greeks.

I lose interest in The Aeneid after Aeneas gets his stupid shield. There’s a lot of vicious fighting in the poem afterwards, but no real suspense. Worse still, the wonderful suffering human being we’ve read about and invested in the earlier sections calcifies into a stock caricature, a paint-by-numbers hero. Aeneas can’t teach me anything when he is standing behind his shield. He can’t live authentically, with any kind of vulnerability. He can’t move me to tears, as he did when forced to leave Dido, forced to abandon another beautiful but illusory life in Carthage. He wanted so badly to cling to that life, but he’s an exile – there’s no known future here, no guarantees. Aeneas standing behind his shield is the default we see all the time around us; it is US and Canadian politics at its ugliest; it’s false hope and false despair; it’s believing in our own fantasies and mistaking them for truth. I see it on a day to day level in the people I know who retreat into acts of personal denial instead of enduring, openly, the precariousness of life. Aeneas standing behind his shield is probably my favorite image in all of literature because in it I see myself at my worst.