Tag Archives: law

Contempt of court

Posted by Jason on

The Supreme Court’s recent upholding of the Muslim Ban is significantly worse than a mere “unconstitutional” violation of “religious liberty.” Indeed, the problem is precisely that it is not those things; it is entirely justifiable on legal grounds while also being plainly evil. It is, therefore, not a mere failing of the present composition of the Court, but an indictment of its very existence.

Arguing against something by calling it “unconstitutional” is facile in the best of cases (as with laws and standards in general, the mere existence of something says nothing about whether it’s right or wrong. Slavery was constitutional for a pretty long time), but here it’s just plainly false. What the constitution actually says about religion is the Congress shall make no law respecting its establishment. The executive branch is not Congress, and an executive order is not a law. In fact, the Constitution doesn’t really say a whole hell of a lot about any constraints on immigration policy, which is part of why various governments have pretty much made it up as they’ve gone along. We’ve had quotas before, you know. And in the absence of explicit legal standards, questions such as whether a face-neutral policy that was clearly motivated by religious resentment qualifies as “religious discrimination” or whether a particular action is justified in terms of national security ultimately have to be judgment calls.

Of course, this isn’t a slam-dunk case in favor of the ban, either. Just because an action is within the purview of the executive doesn’t mean that any such action is beyond reproach. And this is precisely the issue. As long as there is not a specific law addressing the exact case in question, the Court is, in a very fundamental sense, free to do as it wishes. And they’re not actually required to adhere to precedent, either, so ultimately the only thing preventing any given case from descending into a free-for-all is personal restraint. The question of whether to ban Muslims becomes simply the question of whether five lawyers want to ban Muslims.

Obergefell is an even clearer example. Scalia was entirely correct that the case was decided not because a particular decision was required by existing law, but simply because the majority wanted to legalize gay marriage. The reason he was full of shit is that the exact same argument applies to his own opinion. While he claimed that he didn’t care either way about the political question, the argument at issue was that gay people have the right to get married, so what this actually means is that he believed that gay people did not have such a right. This is exactly as much of an ideological position as Kennedy’s was – the only difference between the two is that Kennedy was a mushhead while Scalia was a liar. The only way to decide the case was to bring in a political opinion from outside existing law, and that’s exactly what both the majority and the dissenters did.

Given what’s been happening, this might seem obvious enough, but the problem is that it completely delegitimizes the existence of the Supreme Court, as such. That is, it is not the case that the Court is now illegitimate because it has become politicized. Its very conception is illegitimate a priori.

The reason the Supreme Court is an undemocratic and unaccountable body with lifetime membership is precisely because it is not supposed to address political questions. Its composition is explicitly intended to be unresponsive to democratic pressures. It’s supposed to be a technical institution, which is why it’s the only one staffed by actual professionals. And as far as the typical nitpicky lawyer case about whether a taco counts as a sandwich goes, this is all well and good. Cases with defined legal standards and without obvious political implications can in fact be adjudicated technically, by field experts.

But, while there are many such cases, their existence is ultimately a coincidence. Laws affect real-world material outcomes, so there’s never actually an “apolitical” law. It’s just that in some cases the political effects are narrow or obscure, and in others they’re obvious and far-reaching. In some cases, a legal question about whether a particular standard for operating a medical facility is justified is a simple technicality, while in others it is a fundamental judgment about whether abortion should be accessible or not. What distinguishes these cases is not the law itself, but the social circumstances surrounding it, which is why this problem is unavoidable. You can’t pick only the “non-ideological” cases for the Court to hear, because it is not the case itself that determines its political significance.

Thus, it is necessarily the case that the Supreme Court cannot function as intended. The question of whether this or that judge is a “moderate” or an “ideologue” is entirely beside the point. It is a logical impossibility. There will always be some number of cases whose outcomes are unavoidably political, such that the only way to judge them will be on the basis of political ideology. Which is exactly what happens.

It is important to emphasize, repeatedly, that this is not a matter of “corruption” or “decay” or “extremism” or what the fuck ever. It’s a matter of design. The “Founding Fathers” fucked this up: they designed a system that can’t work as intended, because they weren’t smart enough to figure out the stuff that I just described. I obviously have the benefit of hindsight, but wrong is wrong, and the design of the United States government is in this respect objectively wrong. You’re not going to get anywhere until you give up your childish fantasies about the “wisdom” of “great men” and start looking at how things actually function.

Except that’s not quite true either, because, despite the fact that the actual operation of the government today is quite far removed from how it was when it was first designed, there’s a significant sense in which we really do have the society that the founders wanted. “Democracy” for them meant something completely different than it does to us – there’s a reason they felt no compunctions talking big about it while denying the franchise to the vast majority of the population (and also raping slaves). What it meant for them was, rather than the rule of a specific class of elites (royals), rule by the elites in general. Non-elites did not, for the sake of political representation, qualify as people.

The reason we have a society dominated by businessmen and lawyers is that the founding fathers were businessmen and lawyers who wanted to dominate society. That’s the order they created, and it’s the order we still have today, with the Supreme Court acting as one of its most powerful enforcers. So, from one point of view, the founders were even wiser then they’re given credit for: even after thoroughly misunderstanding, distorting, and bastardizing their vision, we’re still pretty much doing what they wanted. (On the other hand, creating a new order just to re-replicate the same patterns that have existed for all of human history isn’t, like, particularly impressive.)

To be fair, though, there really isn’t a solution to this problem. If you have a society of laws, you do have to have some sort of body for adjudicating them, and doing so is unavoidably going to be a political endeavor a lot of the time. The solution for us, though, once we’ve cleared away the obfuscating fog, shines though with painful clarity. Because the Supreme Court cannot ever be relied upon for anything, it must never be the case that it matters at all to our political activity. The whiny liberals screeching about how important it is to Vote Democratic for the sake of the Supreme Court have it exactly backwards: if all you can rely on to advance your agenda is friendly judicial rulings, you have already lost. You are relying solely on rearguard actions that will never allow you to claim new territory.

The looming fate of Roe is the perfect example here. The only reason that decision matters is that abortion is already inaccessible, so its technical legality is the only thread it has left to hang on to. By contrast, this isn’t a problem for birth control in general. The same zealots would also love to ban birth control, but that aspect of their cause is a complete non-starter, because the battle for birth control has already been won. It’s a normal thing that everyone uses openly in their daily lives. Despite noble efforts from many quarters (well, one quarter), the same cannot yet be said of abortion. But that’s the only way to actually resolve this; a technical legal argument in favor of abortion doesn’t do anything for anybody. Avoiding the fight by adhering to the garbage status quo is a coward’s plan. The only moral option is to win the war.

Also, we really need to admit that Roe was a shit decision in the first place. Establishing a touchy-feely sort-of-right to abortion that came with built-in restrictions ensured that actual access would inevitably be chipped away by a bunch of bullshit pseudo-regulations while obligating absolutely no action toward helping people actually utilize their supposed rights. The correct decision is for abortion to be established as a positive right that the government is obligated to provide, based on the fundamental right to bodily autonomy – which is not enumerated in the Bill of Rights. Also, this is identical to the argument for universal health care, which is the only workable way to implement it. The Constitution won’t tell you any of that, though. You have to figure it out for yourself.

Jurisprudence is not going to save you. The political institution that is responsible for the advancement of values is you.

Everything is permitted

Posted by Jason on

The decision in Epic Systems Corp. v. Lewis has a clear, unavoidable, and devastating takeaway: the system doesn’t work.

Supposedly, we have this thing called “society” which organizes everything to allow for normal people to live happy and productive lives, as long as they follow the rules. If you behave and get good grades in school, you’ll be able to go to college, and then get a good job, which will allow you to participate in the market economy with the money you make and thereby pursue whatever goals you might have (because of course the market provides everything you could ever want). And if anything in this process goes wrong, there are also rules for how to resolve it. If someone steals from you, you can call the police in order to get your stuff back. Even in the case of outright unpredictable and unavoidable disasters such as tornadoes or earthquakes, we have insurance and emergency management services.

Naturally, nothing’s perfect, so there are plenty of times when things don’t go as they should: when cops kill the people they’re supposed to be protecting, when corporations don’t pay the amount of taxes that the law says they’re supposed to, when people make electoral decisions based on false or misleading information, etc. But these things aren’t necessarily system failures. They may just be unintended consequences, or mistakes in how a law was drafted, or new technological developments that haven’t been accounted for yet. So the natural recourse here is to reform: fighting fake news, closing tax loopholes, and retraining the police. This is also built into the rules: we have various mechanisms for making these sorts of changes when it’s recognized that there are problems of this sort that need to be corrected.

It’s important, therefore, not to respond to these types of things by changing the structure itself, because the structure is what allows you to respond in the first place. If, for example, you were to respond to police violence by delegitimizing the police, you would a) no longer have their protection, opening you up to more violence, and b) implicitly create a new structure without police protection in general, meaning no one would any longer have any recourse against unjust violence. (This is essentially the argument that cops have tried to make in response to Black Lives Matter, except that they’ve been too stupid to make it correctly; they’ve instead gotten defensive and petty and thereby conceded the moral high ground.) This means that more important than any particular violation of the rules is the rules themselves, because as long as we have the rules, we have a functioning society. It’s all well and good to try to fix things, but this must always be done through the proper channels, and never by attacking the channels themselves.

What the Epic decision demonstrates is that this is formally not the case. The rules are intentionally designed not to work for you, and this includes the rules that are supposed to account for the times when the rules fail. The case specifically concerned the fact that the company wasn’t paying overtime. In other words, they were stealing from their employees, meaning they were both breaching the contract they had with them and breaking the law. So this is already a failure of the normal rules. The recourse for this is supposed to be that the affected parties can file a lawsuit, and the only thing that an arbitration clause does is to remove this recourse; it specifically prevents the rules from being followed. Arbitration clauses are an explicit power grab by corporations, and the only reason they exist is that corporations have the power to make it so: they dictate terms that are not open to negotiation, and these terms include the clause that, if you get fucked, there is nothing you can do about it. And what the Supreme Court of the United States has just decided is that this is absolutely correct. Powerful people should indeed have free reign to ignore the rules for their own benefit.

So, as it turns out, there really is no such thing as society. There are individual teeth and claws. The thing that Hobbes was wrong about was the idea that the social contract gets us out of the state of nature. It doesn’t. The state of nature is still there, the whole time, waiting. Nothing can actually stop someone from murdering you; all society can do is provide sets of incentives and disincentives to affect people’s behavior. The kind of “law” that says you can’t murder people is qualitatively different from the kind of “law” that says that if you get shot in the face, you die.

Furthermore, the social contract itself is just another state of nature on top of the default one, because nothing prevents it from being exploited. A court of law can potentially arbitrate a dispute to reach a just resolution, but it can also allow an unethical lawyer with a vindictive client to destroy someone’s life just because they want to. And anyone capable of preventing this will necessarily have the power to commit the same abuse themselves (this is the “who watches the watchers?” problem: whatever the highest level of authority is in any given situation, someone at that level can simply choose to do whatever the fuck they feel like). Regardless of what kinds of “rules” and “regulations” there are, there’s always going to be underlying material conditions that determine what people can actually do, and what will (or won’t) happen to them as the result of particular actions.

This dynamic has seen some surface-level discussion recently in the guise of “norms,” but this has mostly been cheap handwringing about the fucking filibuster or whatever. The real issue here goes all the way down: to the home you live in, the clothes you wear, and the food you eat. You do not have a “right” to anything: you either have the ability to steal or the luxury of noblesse oblige. Your very existence is contingent on the random whims of senile jackasses and stunted sociopaths. The only reason you are alive is that no one has yet chosen to kill you.

This is cause for one type of fatalism: it means that utopia is logically impossible. Any possible society will include avenues of exploitation. More practically, in our current situation, it means that we never were and will never be in a situation where the “rules” and being “followed” and we are therefore “safe.” “Normalcy” is only ever a pocket of delusion created by fortuitous circumstances. Every atrocity ever committed was a free choice made by someone who had the power to do so, and the worst thing that will ever happen is, at this very moment, locked and loaded, waiting for someone to pull the trigger.

But this is also true of everything good that has ever happened. Nothing worthwhile was ever supposed to happen; it happened because people made it happen, the hard way. It happened because someone was willing to bloody their hands, or willing to scar themselves. But I’m not sure anyone has ever really learned this lesson. Pretty much everyone goes back to sleep as soon as they get an official proclamation or a law passed or a president elected or something. Indeed, the vast majority of the time people settle for almost nothing: they’re happy to get bread crumbs and call it a banquet. No one ever pushes the knife all the way in.

It’s not enough to simply have a court system and to say that it allows people to resolve disputes. Contracts don’t matter if one side can dictate terms that the other must accept, courts don’t matter if powerful people can force arbitration, and laws don’t matter unless something actually happens when you break them. In order for any of these things to do what they’re supposed to, we have to fill in the other side of the equation, and by the very nature of the problem, this cannot be done with “rules.” It must be done with force.

I don’t know how to do this. Like, I can assure you that I am not making a self-interested argument here. This is the worst possible conclusion for me. I am a child of order, and I do not know how to live wild. But I have to accept this, because the highest court in the land just told me that it’s not going to countenance any alternative. This is a war, and the only rational response is to act like it.