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One year ago today, I started this site with the following statement: “An attorney should always put a statement of the questions presented at the very beginning of any brief unless the rules forbid it.” In that opening post, I tried to map an approach that would guide content then unwritten:
… Setting aside the notion of persuasion, the judicial posture is a useful one for approaching the world.
On the national level of the American governmental apparatus, judges usually are considered passive entities. A court cannot reach out and take or create a case that is not properly before it, nor can it concoct a set of hypothetical facts and issue a decision based on those facts. Most of the time, courts cannot even rule on arguments or contentions the parties do not raise. This detached position encourages patience and allows one to receive an orderly presentation of considerations before making a decision. And judges must make some kind of decision. Judges are passive in posture, though not in nature. At the very least, they must issue a judgment– a verdict, decision, or ruling. By convention or rule, they need to be prepared to defend their decisions verbally or in writing. This requirement of eventual and substantial action reinforces and enhances the passive phase and its attendant values. Knowledge that one must later decide focuses the passive mind and encourages patience to allow for a full understanding of the matters at hand. There is mutually reinforcing energy between listening and deciding such that nothing is mere talk, and chatter has little purpose. As usual, time is a foundational consideration: listen, then decide, then defend, and then listen again.
Resource limitations are a part of our condition. When we choose to utilize our limited resources, we want to do so effectively. This applies to mental resources as much as it does to fuel and finances. Regardless of a resource’s renewability, other limitations will constrain its expenditure or utilization. Efficacy and efficiency are the best responses to this fact of limitation, here represented by the phrase “in the real world.” Many scholars are feeding their families today because of their ability to operate (in varying degrees) detached from the real world. Ideas are important. Theory is important. That’s the point of what you are reading and will read here. The seemingly unavoidable limitations on resources demand that we root ourselves in reality, while allowing ourselves to discuss, critique, and reevaluate that reality. This is a chance to find out what happens when keeping it real goes right.
What about the questions presented? Wasn’t that where this was supposed to begin? It was, and it is. Justice Scalia and Brian Garner emphasize the primacy of questions presented because those questions shape everything that follows. I’m not exactly sure what will follow, but I have some ideas and I know you do too. It’s time to start asking questions that matter.
My goal has been to try to ask real questions, not leading or rhetorical ones, in an attempt to reveal something about what underlies our assumptions, ideas, and viewpoints. I’ve tried to at least imply a question in every post, and where I did not, my approach was to put forth a position that invited responsive comments, of which the site received many. With nearly 3,500 views in the first year, I think we’re off to a good start.
Thank you for your readership and feedback.
U.S. Supreme Court Associate Justice Stephen Breyer visited Vanderbilt University Law School today to deliver a lecture, teach a class on administrative law (the subject he taught while at Harvard Law School, where he was a professor from 1967 to 1980), and sign copies of his book, Making Our Democracy Work: A Judge’s View. I have yet to read the book, but I have loosely kept up with Breyer’s recent interview tour. My interpretation is that the Justice, very frequently in the the minority in his years on the Court, felt the need to explain and preserve his judicial philosophy in an extrajudicial manner. There is precedent for judges setting out their jurisprudential views in book form, and even though Breyer probably wouldn’t admit it, Making Our Democracy Work feels a little bit like a response to A Matter of Interpretation: Federal Courts and the Law, a 1997 book by Breyer’s colleague, Justice Antonin Scalia. I plan to post a review here once I finish Breyer’s new work, and I am hopeful that it will be more timely than my last book review.
Breyer’s lecture began with an explanation of Alexander Hamilton’s vision of the role of the Supreme Court in the federal government, and, taking this as a launching point, sought to illustrate through examples the ways in which we have tried to answer a practical question the Founders could not: how will the justices navigate their role as unelected officials charged with making decisions that may contravene the actions of the elected branches. Breyer compared Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832), Brown v. Board of Education, 347 U.S. 483 (1954), and Bush v. Gore, 531 U.S. 98 (2000) with a focus on the enforceability of unpopular decisions. Following Worcester, President Andrew Jackson refused to adhere to Chief Justice John Marshall’s ruling that Cherokees living in northern Georgia were allowed to stay on their land, instead sending them on the Trail of Tears to Oklahoma. The tumult in Arkansas following the Brown decisions is a well-know part of American civil rights history. This time, though, the presidential use of the military was in obedience of the Court’s ruling. Finally, Breyer observed that, while anger and resentment followed the Bush decision, a peaceful transfer of power in accordance with the Court’s decision took place. Then and today, Breyer said that he thinks Bush was wrong, but he also noted his agreement with Senator Harry Reid’s view that this nevertheless was an appreciable moment in American history for the public’s response. See here. Breyer also commented on two additional controversial cases: Dred Scott v. Sanford, 60 U.S. 393 (1857) and Korematsu v. U.S., 323 U.S. 214 (1944). For Breyer, these two cases illustrate conflict between the Court and the Executive in a war context. Disagreeing with both outcomes, Breyer acknowledged that Korematsu raised the question of which governmental branch should be running a war– placing his theme of democratic deference in a difficult light– but seemed to argue that the facts were such that the Court could have deferred to the Executive without reaching the outcome it did. Despite a supposed attempt by Chief Justice Roger B. Taney to rule in such a way as to avoid a civil war, Dred Scott, Breyer said, is the Court’s worst decision.
I enjoyed Breyer’s remarks, and I liked how he incorporated rule of law and civic discourse and dispute resolution themes into the Hamiltonian framework he referenced throughout his talk. I also found helpful the way he presented the three cases in chronological order to highlight a developing answer to the question the framework implied. It was good to see the Justice, age seventy-two, in strong form, and I am looking forward to reading his book.
UPDATE: VULS has made available a video of the entirety of Breyer’s lecture:
On Saturday, Comedy Central’s The Daily Show host Jon Stewart and comic foil Stephen Colbert presented their much-advertised Rally to Restore Sanity and/or Fear on the National Mall in Washington, D.C. Most of the three-hour event played out like an extended live version of Stewart’s late-night comedy news show, with silly banter between Stewart and Colbert and video clips of public figures (primarily cable media hosts) making apparently absurd statements. High-profile musicians did much of the heavy lifting, as The Roots opened the rally and served as the house band for the duration, rarely leaving the stage. Singer and keyboardist John Legend soon joined them, Yusuf (Cat Stevens), Ozzy Osborne, and the O’Jays led a train medley (Peace, Crazy, and Love, respectively), Kid Rock debuted a new song with vocal support from Sheryl Crow and (via video) T.I., and Mavis Staples sang a duet with Wilco leader Jeffy Tweedy. A capella group Four Troops opened with the National Anthem, and Tony Bennett closed with “America the Beautiful.” Kareem Abdul Jabbar, Sam Waterston, Tim Meadows (via video), and Don Novello (as Father Guido Sarducci), were among the other celebrity appearances at an event that CBS estimates 215,000 people attended. (For a general overview, Brian Montopoli’s article for CBSnews.com is the most accurate I’ve seen. C-SPAN also has full video coverage.)
For a number of reasons, probably including Stewart and Colbert’s left-of-center politics and the apparently responsive nature of this event to Glen Beck’s Restoring Honor rally, many on the Right criticized Saturday’s event. (Stewart took heat from the Left as well.) Finding a coherent basis for that criticism has proven difficult, however, and most sound a bit curmudgeonly (e.g., it was too crowded, so I went home) or overly politically hostile (e.g., you attendees are unable to enunciate your mission or goals).
The latter critical example and linked video from Reason Magazine are unintentional reminders that this was a comedy and entertainment festival, not a traditional political rally. At most, it was a parody of political rallies like Beck’s, but even then only in form and not in substance. We should not be surprised that members of the audience were confused about the rally’s political message or aims or had conflicting views when the host of the event, Stewart, and everyone who appeared on stage make no reference to voting, campaigns, elections, or political officials (at least that I remember– I watched the whole event, but my memory may be faulty). And how could they? Just as the negative reaction to the rally was skewed based on a misconception of the nature of the event, so too was much of the positive reaction. Post-rally online comments to the effect of “keep the momentum going and vote on Tuesday,” and “none of this matters if we don’t vote,” see e.g., here and here, are confusing when considered against the actual happenings onstage at the rally. To the extent that there was a message coming out of Saturday’s rally, how exactly that message would direct one vote is not obvious. Stewart’s critical targets were the media (the “twenty-four hour political pundit perpetual panic conflictinator”) and perhaps bad attitudes. Tuesday’s elections offer candidates who may or may not want to dismantle the federal bureaucracy, our military presence abroad, and the separation of church and state (at least according to their opponents), but none who lead with a platform of reorganizing news media, reorienting and elevating national public discourse, and encouraging respectful relations between people. We do not have a Sanity Party in the United States, and to objective watchers, Stewart’s view appears clear that no existing party can lay claim to that title.
There was a serious message on Saturday, though, and Stewart dropped the funny for twelve of the rally’s 180 minutes to deliver a traditional speech, which, while it may never be canonized alongside Rev. Martin Luther King‘s “Letter from a Birmingham Jail,” has the potential to be important as a matter of civic discourse. Stewart’s speech (video below, text here) presented a vision of a postmodern America in which people with self-defined identities carry on respectfully with others despite conflicts in ideology.
Look on the screen. This is where we are. This is who we are. [Points to the Jumbotron screen that shows traffic merging into a tunnel.] These cars—that’s a schoolteacher who probably thinks his taxes are too high. He’s going to work. There’s another car-a woman with two small kids who can’t really think about anything else right now. There’s another car, swinging, I don’t even know if you can see it—the lady’s in the NRA and she loves Oprah. There’s another car—an investment banker, gay, also likes Oprah. Another car’s a Latino carpenter. Another car a fundamentalist vacuum salesman. Atheist obstetrician. Mormon Jay-Z fan. But this is us. Every one of the cars that you see is filled with individuals of strong belief and principles they hold dear—often principles and beliefs in direct opposition to their fellow travelers.
And yet these millions of cars must somehow find a way to squeeze one by one into a mile long 30 foot wide tunnel carved underneath a mighty river. Carved, by the way, by people who I’m sure had their differences. And they do it. Concession by concession. You go. Then I’ll go. You go. Then I’ll go. You go then I’ll go. Oh my God, is that an NRA sticker on your car? Is that an Obama sticker on your car? Well, that’s okay—you go and then I’ll go.
Stewart is describing postmodern thinker William Connolly‘s “bicameral orientation”: the notion that we should approach others with the simultaneous knowledge that we have our own, dearly held comprehensive worldviews and that everyone else has his or her own worldview, held just as dearly. The bicameral orientation thus directs individuals to “the engrained sense that you should exercise presumptive receptivity toward others when drawing that faith, creed, or philosophy into the public realm.” William E. Connolly, Pluralism 4 (Duke University Press 2005).
Postmodernism is only slightly easier to understand than nanotechnology, which means that even its proponents and closest students can be a bit nebulous in describing it. Stewart’s vision of America, as described in his speech on Saturday, nevertheless sounds squarely in postmodernism. He sees our country as pluralistic and cheers the times when people of possibly conflicting worldviews interact in a mutually respectful manner.
Most Americans don’t live their lives solely as Democrats, Republicans, liberals or conservatives. Americans live their lives more as people that are just a little bit late for something they have to do—often something that they do not want to do—but they do it–impossible things every day that are only made possible by the little reasonable compromises that we all make.
This, to Stewart, is sanity.
Finally, some considered it “sad,” or “a sign of the times” that it took a comedian like Stewart to bring attention to deficiencies in political discourse and behavior. He and Colbert, along with others like Chris Rock, have been presenting social commentary through comedy for years, not to mention Mark Russell before them, and the political cartoonists throughout the history of print media. If comedy is an art form, then comedians fit in well with the musicians, authors, poets, and visual artists who have utilized their craft to shine a light on or hold a mirror to society throughout human history. See, e.g., here, here, here, and here.
If you attended or otherwise took in or kept up with the rally, I welcome your reactions and alternative interpretations below.
The Roots – “The Seed (2.0),” Phrenology (2002)
Phish – “Sanity,” Junta (1988)