Ozzie Guillen, the First Amendment in the Workplace, and Bromance

The Florida Marlins’ suspension of its manager Ozzie Guillen for his ‘pro-Castro’ remarks provides yet another teachable moment about the First Amendment and its relationship to the workplace. (Guillen has been suspended for five games.)  Guillen’s original remarks read:

 I love Fidel Castro. I respect Fidel Castro. You know why? A lot of people have wanted to kill Fidel Castro for the last 60 years, but that [expletive] is still here.

(As always with deleted expletives, I’m curious: What did he say? Anything worth reusing?)

After a storm of outrage from Miami’s Cuban community, the most ardent ‘anti-communists’ in the US (* see note below), and a quick suspension later, another familiar storm of outrage: How could this be possible in the US? Don’t we have free speech? What about the First Amendment, eh? Land of the free, Schmand of the Free!

In response to which: The Florida Marlins are private actors; they can abridge speech in their workplace as a condition of employment; and Guillen, if he doesn’t like it, is free to move to another employer more tolerant of his professed opinions. Employees have very few constitutional protections in the workplace; it is where we go to cease being citizens and start being minions. This confusion occurs most commonly with regards to the First and Fourth Amendments (“You mean my employer can search my stuff without a warrant?” Yes, they can). For some reason, most folks don’t think of Fifth Amendment protections in the workplace. Has anyone ever complained that he was forced to ‘testify’ to his boss? Has anyone ever tried taking the Fifth in a work meeting? Abandon all Constitutional Rights Ye Who Enter Here, indeed.

Of interest to me, too, was Guillen’s ‘defense,’ offered, in his own words, on his knees (can you back-pedal on your knees?):

This is the biggest mistake of my life…I’m on my knees. When you make a mistake this big, you can’t sleep. If I don’t learn from this I will call myself dumb. Today is the last day that this person talks about politics. Everyone in the world hates Fidel Castro, myself included, and I hate him for all the damage and all the hurt. I was surprised he’s still in power – that’s what I was trying to say.

I find Guillen’s clarification of his remarks quite convincing. This is because Guillen like many men, likes to express his maverick, contrarian self, his individuality, as it were, by expressing a kind of grudging admiration for other men found ‘too hard’ by the soft, weak, masses: ‘You all say he is an asshole, and I agree, but let me tell you, he’s one tough asshole, you gotta give him that! Don’t get me wrong; I don’t like the guy. But you gotta admit, he’s a tough dude.’ Or something like that.

Note: Two anecdotes: First, many years ago, a Cuban friend of mine bought a Yugo (don’t ask). His mother refused to ride with him in the car; not because she thought it was unsafe, but because it was manufactured in a communist country. Second, another Cuban friend of mine threw out her Billy Joel records–a good move in general, I’d say–after he toured the USSR. If it isn’t obvious, these stories date back to the 1980s, when anti-communist sentiment among Miami Cubans was–if it can be imagined–even more visceral than it is today.

Game Not On: Santorum Exit Left

Rick Santorum is not our man any more; the Republican candidate tree has been pruned, and suddenly, we are left with Mitt Romney (and, I believe, Newt Gingrich and Ron Paul). Now is the time for Rick to swallow the bile, and get on with the business of beating the Anti-Christ, er, Barack Obama, in alliance with Mitt Romney. This is bad news for the writers at the Daily Show and the Colbert show, and for those that like watching long, protracted primary campaigns, all the while fantasizing about dramatic nomination battles at party conventions. Santorum’s exit means, most visibly, an attenuation of the entertaining quasi-fratricidal disputes between Romney and Santorum.  We will now see another side of Santorum–the Supporter of the Party–as opposed to Distinctive Maverick, and this is bound to be far less likely to tickle the funny bone.

But I have to admit, at this moment, my concerns lie elsewhere. More specifically they are centered around a pair of teenage girls in Oklahoma. Haley and Camille Harris must be very upset. For weeks now, they–and the rest of the Harris brood i.e., four other siblings and their pastor father–have been celebrating Rick Santorum’s efforts to put the White back into the White House, with a memorable video of a song whose lyrics, go, uh, a something little like this:

GAME ON! Join the Fight/We’ve finally got a Man who will Stand for what is Right
GAME ON! Victory’s in Sight/We’ve got a Man who Understands that God Gave the Bill of Rights
 Oh, there is Hope for our Nation again/Maybe the First time Since we Had Ronald Reagan
There will be Justice for the Unborn/Factories back on our Shores
Where the Constitution rules our land/Yes, I Believe… Rick Santorum is our Man!
GAME ON! He’s got the Plan/To Lower Taxes, Raise Morale, To Put the Power in our Hands
GAME ON! Change is at hand/Faithful to his Wife and Seven Kids – He’ll be Loyal to our land
Oh It’s crazy, What’s been slipping through our hands/When we the People are still supposed to rule this Land/Rick Understands 

If you aren’t a Santorum fan, want to understand this nation’s political diversity and get some insight into the nature of Santorum’s constituency, this song and its video are genuinely illustrative: this is what you’re up against. When I first saw the video, my mind boggled, but it did serve to inform me of why this man, who I took to have the intelligence of an anemone, was doing as well as he was in the Republican primaries.

On a more serious note, while Santorum’s divisive campaign has come to an end, and provided some relief from the endless displays of ignorance that he specialized in, it also means his energies will not be diverted any more by Romney and can now be devoted elsewhere. If anything, his campaign suspension means that his atavistic pronouncements will have more of a focus, and that is bad news for anyone that, bizarrely enough, still holds out hope for elevated political discourse once the primaries are over.

The National Review Thinks There is No Sex-Discrimination in the Workplace

Last Thursday, Governor Scott Walker repealed Wisconsin’s Equal Pay Enforcement Act, which made it possible for victims of sex discrimination to further contest such discrimination in a Wisconsin circuit court–even if their cases were already on file with the federal Equal Employment Opportunity Commission, or in federal court, or with the Wisconsin Department of Workforce Development. Circuit courts could award compensatory and punitive damages; administrative-law judges could only offer remedies restricted to ‘back pay, attorney’s fees,’ and the like.

Walker’s repeal isn’t popular. And the editors of the National Review Online aren’t happy about the charges made against Walker, such as ‘turning back the clock on women’s rights in the workplace,’ ‘anti-woman,’ and ‘[undermining] not only women’s health care, but also their economic safety.’ The editors’ defense is simple: The law is superfluous and it produces worse outcomes; if there is sex discrimination, the laws on the books before the EPEA were adequate and moreover–tort reform anyone?–the EPEA makes ‘frivolous’ claims more likely.

The opening salvo of this defense is a curious one:

Regarding sex discrimination, the statistic most often bandied about is that women make 77 cents for every dollar that men make — but this number is useless, because it does not account for the fact that women enter different fields and make different employment decisions than men do. (For example, women are far more likely to leave the work force following the birth of a child.) Once these differences are taken into consideration, the wage gap shrinks substantially; some studies find that it disappears almost entirely. And of course, men and women differ in ways that are not easily measurable by researchers, and yet might still affect their earnings.

This is astonishingly glib, even for the NRO. This number is hardly ‘useless’ even if all the ‘accounting for the facts’ is carried out.

First, women do enter ‘different fields’ –they very often enter fields which pay less than the ones which men enter. For instance, if you attend a meeting in a boardroom of the the bright and gleaming corporate world, you will meet more women bringing you coffee and creamers than you will around the meeting table. Why do women enter such ‘different fields’? Could it because in ‘other fields’ paths for upward advancement are blocked by some legally addressable factor such as sex-based discrimination?

Second, why are women ‘far more likely to leave the work force following the birth of a child’? Could it because women, unlike men, are far more likely to have their career trajectories interrupted and mangled out of recognition by their temporary absence from the work force, an absence men don’t have to worry about? (Perhaps it is because child-care is still subject to a gendered understanding as the exclusive preserve of the mother and not supported in any meaningful way by our supposedly family-value conscious society and its workplaces.)

Third, it does not need an NRO editor to tell us that ‘men and women differ in ways that are not easily measurable by researchers, and yet might still affect their earnings.’ The latter, for instance, are subject to patriarchy and all its glib assumptions about the worth of a woman employee. Those that discriminate against women find comfort in the differences pointed to by the NRO editors; they are often able to brusquely justify their discrimination by pointing to non-quantifiable differences that they have somehow detected and made the basis of lower compensation for equal work.

If the NRO wants to defend the repeal of the EPEA, it’ll have to try some strategy other than the one that says ‘there ain’t no discrimination against women in the workplace.’ This is the modern political equivalent of flat-earthing.

The Campaign Trail: Where You Go To Say Dumb Things

Could there be a stupider foreign ‘policy’ decision than the one to strike Iran, ostensibly to disrupt its nuclear weapons program? (If the strike ‘succeeds’ it will: encourage Iran to build a nuclear weapon for, as its rulers are likely to notice, only nations with actual nuclear weapons don’t get attacked by the US; consolidate ‘mullah power’; unite the Iranians, current radicals and mullahs alike, against the US; destabilize the region even more as new, possibly more radical alliances than the current Hamas-Hizbollah ones are formed.)

That such a move is even being considered, is being lightly tossed around, by supposedly responsible statesmen, should be cause for some consternation. But viewed from another perspective, the casual trafficking in this threat is also unsurprising when we notice the venue of its proclamation: the election and campaign trail. Where else would something this stupid be said? The invocation of armed power as a solution, indeed, the only viable one, for dealing with a foreign policy problem that requires instead finesse, patience, and a great deal of nuanced, region-specific, historically and culturally sensitive knowledge is a reminder, once again, of how utterly divorced from reality the campaign season can make politicians. And it raises again the question, always worth keeping handy, of the pernicious effect on politics and democracy that the business of elections, electioneering and campaigning can have.

It is now April, the fourth month of the year, and Election Day is almost exactly twenty-eight weeks away. Till then, election-related material will blanket the air waves, newsprint, and the various physical media that bring us the Internet. There will be many more campaign gaffes and ‘gotcha’ moments (Etch-a-Sketch will be reincarnated in many forms; Obama will, in all probability, be asked to backpedal on ‘race issues’; and so on); and more often than not, candidates desperate to rouse the faithful will reach deep into the bag of Dumb Things and pull out one grand exhibit after another. (As it would only be honest to note my political biases, I should point out that I expect more Dumb Things to be said by the Republican candidate than by Obama; the latter seems less relatively inclined to shoot from the hip in these matters.) But none of these differences between candidates will obscure the central issue that the extended election season and the length of the campaign trail are increasingly conducive of the production of a coarsened discourse combined with the  technological efficiency, scope and reach of the modern election’s media apparatus. Sure, there is ‘airing of the issues’, but there is also time and space enough to air half-baked thoughts and pander relentlessly.

A persistent confusion about democracy arises in assigning elections disproportionate importance over and above the creation, maintenance and sustenance of the rest of its crucial economic and political infrastructure; the extended election season with the ample opportunities it provides for Quality Not Quantity, for the production of Things Better Left Unsaid, is the worst, most dispiriting instance of this misplaced priority. Here, the election, supposed centerpiece of democracy, seems more like a malign interruption, a gigantic roadblock to quality political discourse, which, I have been assured, is a rather crucial part of a dynamic polity.

Tourism and the Invented Tradition

Ian Johnson interviews Tian Qing (New York Review of Books Blog, April 6th, 2012), the head of China’s Intangible Cultural Heritage Protection Center, “an institution set up by the government to protect China’s native traditions in the performing arts, cuisine, rituals, festivals, and other forms of culture” in an attempt to figure out whether these cultural forms are “being recovered as living traditions or as objects for urbanized Chinese to enjoy as tourists in their own land?”

In the course of his interview, Johnson asks whether modernization can be reconciled with the imperatives to protect, preserve and promote culture:

Can’t one unite the two? For example, Bach’s sacral music is now more often than not performed in a concert hall. The music has been preserved but has a different function in society.

Tian replies:

It’s possible. But it can lead to horrible things too. In Yunnan Xishuangbanna [a popular tourist area in China’s far south] there’s a Water Splashing Festival of the Dai minority. It’s related to the birthday of Sakyamuni and used to be once a year. But now people splash water on you every day. As long as tourists come, they splash water. It’s lost its religious function. Or after [the director] Zhang Yimou filmed Red Sorghum and showed the bride in a sedan chair. That used to take place in a really small area of Shanxi province. Now across the country at every tourist spot are people with sedan chairs for hire—hey, for 50 yuan you can ride in it. Tourism. It’s terrible.

Here tourism has performed a function similar to mass-manufacture: it has taken an artifact, possibly one crafted and custom-made, available only to a few in particular contexts and settings and suddenly, dramatically, made it available to all, to ‘the masses.’ In doing so tourism has made it more generic; its accessibility has increased, but it has lost a placement that made it possible, for instance, to possess the “religious function” whose loss Tian is concerned about. So, ironically, the ‘preservation’ of the cultural artifact or ritual require its displacement from those ‘privileged’ locations in time and space that granted that ritual its original meaning and raison d’etre. Its displacement from those locations preserves it by granting it popularized longevity at the cost of an acquired ordinariness.

And as Tian notes, now the ritual has a new function, that of ‘tourist-pleaser’, one that in time could acquire new significance;  future generations might view the water splashing followed by 21st century Dai residents of Yunnan Xishuangbanna as one about welcoming tourists;  presumably, this would be an interesting discovery about our times. In the case of the sedan chair ritual a cinematic force brings about the creation of a tradition; once the origins of the ritual are  forgotten, a new creation myth can come about which might ascribe that ritual a more elaborate and elevated provenance.

So tourism and cinema then most broadly can be seen as  bringing about what Hobsbawm termed the ‘invented tradition‘:

[R]esponses to novel situations which take the form of reference to old situations, or which establish their own past by quasi-obligatory repetition.

The interventions of the Intangible Cultural Heritage Protection Center are bound, then, to create new cultural forms even as they seek to preserve older ones.

Schopenhauer on the Pernicious Influence of Copyright on Writing

Modern debates on the ‘intellectual property’ front involve several, overlapping, recurring themes. One persistent pair of inter-related concerns is: How are creators, authors, artists, ‘content producers’, and the like to be compensated for their ‘contributions’ to our commons? and, How indispensable are the protections of the various legal regimes that are termed ‘intellectual property’ (and its related economic arrangements) for the continued sustenance and facilitation of ‘artistic production’? The answering of these questions almost invariably involves a reckoning with fundamental issues of artistic motivation and innovation. The pedigree of those kinds of debates is, of course, older than modern Internet-related intellectual property disputes, and unsurprisingly enough, the pronouncements of those who have approached the puzzles of artistic provenance in the past are relevant for them. Sometimes those pronouncements can be especially, pointedly, on target and serve as useful reminders that skepticism about ‘intellectual property’ predates the Internet.

From Arthur Schopenauer’s “On Authorship and Style” (from Essays of Schopenhauer, University of Adelaide E-books repository):

There are, first of all, two kinds of authors: those who write for the subject’s sake, and those who write for writing’s sake. The first kind have had thoughts or experiences which seem to them worth communicating, while the second kind need money and consequently write for money. They think in order to write, and they may be recognised by their spinning out their thoughts to the greatest possible length, and also by the way they work out their thoughts, which are half-true, perverse, forced, and vacillating; then also by their love of evasion, so that they may seem what they are not; and this is why their writing is lacking in definiteness and clearness.

Consequently, it is soon recognised that they write for the sake of filling up the paper, and this is the case sometimes with the best authors….As soon as this is perceived the book should be thrown away, for time is precious. As a matter of fact, the author is cheating the reader as soon as he writes for the sake of filling up paper; because his pretext for writing is that he has something to impart. Writing for money and preservation of copyright are, at bottom, the ruin of literature. It is only the man who writes absolutely for the sake of the subject that writes anything worth writing. What an inestimable advantage it would be, if, in every branch of literature, there existed only a few but excellent books! This can never come to pass so long as money is to be made by writing. It seems as if money lay under a curse, for every author deteriorates directly he writes in any way for the sake of money. The best works of great men all come from the time when they had to write either for nothing or for very little pay….The deplorable condition of the literature of to-day…is due to the fact that books are written for the sake of earning money. Every one who is in want of money sits down and writes a book, and the public is stupid enough to buy it.

Incidental aside: The indictment of writing-as-if-paid-by-the-word is pungent and on point; the wisdom of “I coulda written less but I didn’t have the time” lives on.

The Dirt on the Clean

Some three years ago, when I first started learning the clean at Crossfit South Brooklyn (CFSBK) my Coach Extraordinaire David Osorio said it would take two thousand repetitions to get the clean ‘right.’ As I’m fond of saying to my fellow CFSBK’ers, I’m not sure I am at two thousand reps yet, because I don’t think I have the clean right. I certainly clean more than I used to three years ago;  my heaviest clean is now at 175 pounds, and I remember feeling ridiculously pleased when back in September 2009, I first went past 125 pounds. But the mere fact of being able to hoist a greater number of pounds from the floor into something that approximates a finish position does not mean that the lift has been accomplished in technically correct or aesthetically pleasing fashion.

For as more than one coach has noted, on more than one occasion, when I’m done with my lift, while I might not have pulled off  ‘a foul rep’ insofar as I didn’t drop the bar, fail to catch it, or anything else like that, the lift has still ‘gone bad’: my elbows have not come around fully, I have landed too wide, I have pulled ‘too early’, I didn’t ‘set my ass back’ properly. And without fail, on the clean, there is a progression: some twenty pounds or so beneath my maximum lift is where my form is at its best, and above that, my form starts to break down. My max clean, as noted is 175 pounds, and my ‘cleanest’ heavy clean occurs at about 155 pounds (i.e., one where my coaches don’t feel compelled to roll their eyes, grimace, shake their heads, or otherwise give indications of severe distress). Needless to say, the max clean is one ugly baby, so ugly that no one in their right minds would kidnap it.

On the clean, it seems, one never stops learning, never stop getting little insights into the lift that are revelatory, helpful, and contribute to a greater understanding of this complex, powerful movement. These little moments of insight, ludicrously small as they might seem, all add up in contributing to the effective execution of the lift. For instance, in recent weeks, I’ve learned to become more conscious of two cues that help me manage the complexity of the ‘three pulls’: one, as you deadlift the barbell up and past your knees, don’t move it around the knees, rather, get your knees out of the way. (That this is an ‘insight’ tells you how confused I might have been in the past; after all, the first pull is just supposed to be a deadlift up to the pockets, innit? And aren’t you supposed to get your knees out of the way when you deadlift?)  And then, as you reach the ‘pockets’ and ready for the explosive hip-opening pull, cue yourself by brushing the barbell off the pockets, (audibly even), as you pull it up, get under, and rack the barbell.

Competency in the clean feels like a moving target, as an attempt to fix one component of it results in another going wrong. No other lift quite induces the feelings of Sisyphean labors the way the clean does: seemingly, almost every improvement in the max weight cleaned results in technical competency at that weight breaking down so that having mastered competency at one weight, one moves on to try and get better at the next step. I’m better now at 155; a year and a half ago, that was my one-rep max, my 155lb lifts were all ugly, and my 135lb cleans were, ahem, cleaner. So there is hope here then: at least, there is a slow and steady graph of improvement, even though as one’s strength improves it seems that all the old insecurities about being able to pull off the lift well return.

No other lift, also, I think, quite makes the lifter want to do it well even as he struggles with it. A well-executed clean is a thing of beauty so a sensitive lifter can feel the aesthetic imperative of the lift acting on him. The desire to achieve competence in the clean can burn strongly in a motivated lifter, not just because he wants to lift more weight but because he wants to do it correctly and perhaps even ‘well’; an ugly clean is never satisfying and the lifter knows it.

So, hail to you, the mighty clean. You never fail to stay out of my reach, but in doing so, you make me work just a little harder.

Oakeshott, the ‘Practical Past’, Ancestors, and Psychoanalysis

For Michael Oakeshott ( ‘Present, Future, and Past’, from ‘Three Essays on History’ in On History, Liberty Fund, Indianapolis, 1999), the ‘practical past’ is:

[A]n accumulation of symbolic persons, actions, utterances, situations and artefacts, the products of practical imagination, and their only significant relationship to past is not to the past to which they ambiguously and inconsequentially refer but to the time and circumstances in which they achieved currency in a vocabulary of practical discourse. (48)

Elsewhere Oakeshott notes that the contents of this practical past are ‘capable of being enlisted to help us respond to our current situations’ (42) and goes on to recount an anecdote in a footnote:

When we were children, out for a walk in difficult country, tired and disposed to lag or to subside on a grassy bank, my father used, half-seriously, to exhort us to further effort by invoking record: this, he would say, is not what Trojans would do. But Trojans were not long-perished people, the intricacies of whose lives, performances and fortunes only a critical enquiry could resuscitate from record; they were living and to us familiar emblems of intrepidity. (42, fn.11)

Oakeshott thus theorizes a sentiment frequently heard in recollections of those long-departed: they live on for us in some way, perhaps by inspiration, perhaps as bad examples. In this manner, giants still stalk the land, monsters still haunt us in our nightmares and fantasies,  and loved ones still comfort us. They are residents of the practical past.

But so too, of course, are our ‘previous selves’ so to speak; those entities that we see ourselves as the current incarnations of,  connected us to by, among other things, memory. They too, serve, as inspiration and bad examples. So this practical past is also the ‘didactic past’:

The  present contents of a vast storehouse into which time continuously empties the lives, the utterances, the achievements and sufferings of mankind…this storehouse has acquired such a reputation as a collection of potentially useful objects that there is now a profession of persons, who for a fee, will rummage through it on your behalf, coming up with perhaps the disconcerting or gratifying news that you are somebody quite other than you supposed yourself to be. (43)

Oakeshott’s reference to psychoanalysis is cleverly and colorfully done but is worth amending just a little bit. The ‘rummaging’ carried out in the ‘storehouse’ is not performed alone by our helpful guide; rather we assist them a great deal, providing pointers and directions. Furthermore the results of this rummaging are not merely presented to us as gifts that we can simply take on board and walk away with. We must know what to do with them, how to make use of them, now and later. To extend Oakeshott’s analogy a bit further, while we might be led to these contents of our storehouse of the ‘didactic past’ by our guide, we need to bring them back home, to figure out how they can be slotted, integrated, and configured for our current abode, and how we may go on living with that piece aligned and arranged with other possessions of ours in that ‘didactic’ storehouse.

There is more to say here, of course, and I hope to take both threads up later in a longer post.

That Scalia Sure Chopped the Individual Mandate Like Broccoli!

I’ve now taught Philosophy of Law twice: first, in Spring 2007, and then later, two sections in Spring 2011. An important section of the class syllabus, once we have completed a comparison and discussion of natural law, positivist, and legal realist theories of the law, is legal reasoning. And invariably, an important topic in legal reasoning is reasoning by analogy (which is often introduced as a part of the section on reasoning from precedents). This is introduced and highlighted as an important component of what it is that lawyers do; because many of my students aspire to go to law school, I point out to them that they will often be exposed to reasoning by analogy in many of the cases they study, that they should become good at it and that learning how to effectively reason by analogy is part of making you ‘think like a lawyer.’ My students and I read, for instance, Cass Sunstein’s “On Analogical Reasoning” (Harvard Law Review, v. 106, pp. 741 ff.), study standard examples and case studies where reasoning by analogy has been used–for instance Donoghue vs. Stevenson (1932 S.C. 31)–in a critical effort to evaluate the applicability and validity of this mode of reasoning. It is one of the most enjoyable sections of the semester; my students and I spend considerable time arguing about whether a particular analogy works or not and what role reasoning by analogy has in legal reasoning in general.

In the light of these considerations, I have one overriding reaction to the Scalia Broccoli-Is-Like-Broccoli Analogy. This is an embarrassment, or should be, to Scalia and his acolytes. (These shrieking hordes are found, most commonly, in the Federalist Society of any major law school; I have it on reliable authority that they all aspire to be Scalia when they grow up.) I wonder if Scalia realizes what a bad advertisement for legal reasoning he is. The man went to a top law school, had a long career in the law, serves on the Supreme Court, and this is the analogy he constructs? Of what use such expensive education? But this apparently was not an embarrassment enough for some folks. Predictably, Scalia’s reasoning was defended as a zinger, an awesome putdown that put the Obama Administration on the mat. With cheerleaders like that, anyone can be a Superbowl MVP.

Days after the analogy was made, I’m still wondering: How is broccoli like healthcare? Because you can buy both? Because both are ‘good’ for you? Perhaps Scalia could have said, “So the government could compel you to buy a round-the-world-ticket airfare because travel to foreign lands is good for you?” Wouldn’t his Federalist Society fans have found that even funnier? I’ve come to suspect that Federalist Society fans think of Scalia as the Joker on the Supreme Court, grinning away furiously, zapping one counsel after another with, “Why so serious? This is all just political shenanigans! Say whatever you want – we know which political outcome we’d like to get our hands on.”

Scalia reminds me of that Dana Carvey rockstar who brings in broccoli, because, well, he just wanted to:

Breaking News: The US Supreme Court is a Political Institution

Yesterday in Florence vs. Board of Freeholders, the US Supreme Court ruled that if you are arrested–for any reason whatsoever–the law-enforcement officials in charge of you can strip-search you. Over at ScotusBlog, Lyle Denniston sums it up a little better:

Insisting that it has no expertise in how to run a jail or prison, the Supreme Court divided 5-4 Monday in ruling that every person arrested and held temporarily can be subjected to a routine strip search, so long as it involves only a visual inspection without touching or abusive gestures.  The prisoner, however, may be told to manipulate some part of the body….The Court explicitly refused to limit the authority to use strip searches only to situations in which a specific individual gave officers a reason to consider that prisoner to be dangerous or likely to be carrying a concealed weapon or drugs.

Justice Oliver Wendell Holmes once said the law was best defined as a prediction of what judges or courts would do. In that sense, this Supreme Court offers stable law: take any case, imagine what a  run-of-the-mill-conservative would suggest as a ruling and write down ‘4’ next to it; do the same for a run-of-the-mill-liberal. Then, for the deciding ninth vote–Justice Kennedy’s–you could toss a coin or roll a dice or inspect tea leaves.

This confidence in predicting ‘conservative’ and ‘liberal’ votes stems, of course, from voting patterns but also from the transparent displays of ideological commitments by Supreme Court Judges in their spoken pronouncements and their writings. For instance, in Florence vs. Board of Freeholders, the Supreme Court’s majority ruled that in this domain, it had to defer to jail and prison managers, that it possessed no relevant expertise that could be brought to bear on their activities. This is a striking admission of limitations, one that we can be sure will not be expressed any time in the future when a conservative outcome is required.

I could carry on like this, picking apart each point of the majority ruling, but it would be a far better use of my time to simply note what many have done since Bush v. Gore: the US Supreme Court is just another political institution (This politicization of the institution does not back only to 2000, of course. It is just that in Bush v. Gore, the court’s politicization was made overt in, I think, a previously unprecedented manner.) The US Supreme Court  has an ideology; it has political preferences; it most assuredly has dogs in the fight, and it will back them by any means necessary; it has political rhetoric at its disposal, and when it wants an otherwise weak or untenable legal argument to carry weight it will back it up with just that rhetoric.

In this situation, there is something quite touching about the gallons of ink spilled, by our nation’s legal class, on intricate legal analysis of fact patterns and the like, in an effort to predict and analyze Supreme Court judgments.  One might think that legal analysis never offered any cause for hilarity; but in matters like these, it most assuredly does. And this is not restricted to those that analyze Supreme Court rulings but even those who write them: the painful, intricate, attempts to cover up straightforward political preferences with long-winded, superficially sophisticated legal arguments can only be chuckle-inducing. Better, I think, to be honest, and simply use my method of prediction above. It is concise; it is honest; it gets you the same predictions as a fancy Harvard or Yale lawyer might.

Who would have thought it: law can be politics by other means.