The Tuesday

Law & the Courts

The Supreme Court Gets a Little Less Awful

(Bill Chizek/iStock/Getty Images Plus)

Lyle Denniston, a legal journalist who began covering the Supreme Court in 1958 for the Wall Street Journal, is not happy about how the Supreme Court is conducting its business during quarantine, insisting that the current turn-taking arrangement “harms equal status of each justice, gives the [chief justice] arbitrary power, diminishes cross-bench exchanges, promotes wool-gathering by lawyers, prizes order over depth, lets technology triumph, [and] looks amateurish. If it is thought that this is the wave of the future, I’ll take decisions based solely on the briefs. To call this ‘argument’ is to impoverish the word.”

Each item on that indictment is worth considering, but one is of particular interest: the charge that the procedures put in place to allow the justices to work remotely — the traditional open format has been supplanted by a system in which the justices ask their questions one at a time in order of seniority — “looks amateurish.” (It certainly is not a triumph of technology; technology here has won by default.) The inclusion of that purely aesthetic criterion among the substantive political and procedural complaints is not by any means trivializing. The appearance of amateurism may be the most consequential entry on Denniston’s list.

Part of our political debate is over relatively straightforward things such as who gets taxed how much and what the money is used for. Some of our political discourse is simply the noise generated by the intellectual violence of complex issues being forcibly oversimplified. But much of our disagreement is about things we rarely speak to directly, including the cultural character of the state, what it looks like and feels like, how it sounds when it talks, what its manners are like. Among the many great fault lines in American life is the one that runs between small-r republicans such as myself who, for example, see the State of the Union address as a contemptible pseudo-monarchical spectacle unworthy of a free people, and those on the other side, including members of both parties, who desire majesty in government, who can’t imagine a free people managing their own affairs without a great deal of “oo ee oo aa aa, ting, tang, walla walla bing bang.”

This is a debate as old as the United States: Poor John Adams was savagely ridiculed for his often-caricatured belief that the president of the United States should be addressed by some exalted title. Adams had entertained “His Highness, President of the United States and Protector of Their Liberties.” His preferences later escalated to “His Majesty.” (On this and much more, I recommend Richard Brookhiser’s great America’s First Dynasty: The Adamses, 1735–1918 and the very interesting The Problem of Democracy: The Presidents Adams Confront the Cult of Personality, by Nancy Isenberg and Andrew Burstein.) Adams’s worry seems quaint in retrospect: That the president would not be a sufficiently strong national figure, that he would get pushed around by the legislative branch, that his want of pomp and majesty would render him pitiable and impotent among the world’s princes.

The modern American presidency is the love child of Caesar Augustus and P. T. Barnum, no longer an administrative post but a sacral kingship. That is why our fights over it are so bitter. It isn’t that we don’t care about internal bureaucratic debates over interpretation of Section 4(b)(1) of the Occupational Safety and Health Act or things of that nature, but it isn’t the question of due process under Title IX sexual-harassment procedures that causes some people to hate Betsy DeVos. They already hated her, they hated her from the moment they saw her, and 99 percent of the Left’s tantrum about the Department of Education under her leadership is simply backfilling in a rationale for that hatred. Democrats were wrong in their insistence that conservatives’ revulsion at Barack Obama was a matter of race, but they were correct that it was not primarily a matter of policy. Barack Obama, like Donald Trump after him, was a cultural totem and a signifier. If American democracy is Lord of the Flies as presented by C-SPAN, then the presidency is the conch — the power to dominate the conversation, the power to convene, a symbol of legitimacy. While one tribe glories in possession of that bauble, the other cannot bear being deprived of it.

The need for majesty is obvious from the king’s point of view. A kingdom is what you get once organized crime becomes a monopoly and by dint of age attains a patina of respectability — Mancur Olson’s “stationary bandit.” Thomas Paine had nothing but contempt for the belief that kings should be treated with some kind of awe:

This is supposing the present race of kings in the world to have had an honorable origin: whereas it is more than probable, that, could we take off the dark covering of antiquity and trace them to their first rise, we should find the first of them nothing better than the principal ruffian of some restless gang, whose savage manners of pre-eminence in subtilty obtained him the title of chief among plunderers; and who by increasing in power and extending his depredations, overawed the quiet and defenseless to purchase their safety by frequent contributions.

That is the use of awe: ensuring compliance, obedience, and civil quietude.

The Supreme Court’s appearance of amateurism diminishes its carefully cultivated sense of mystery — it functions as a Greco-Roman mystery cult, complete with ceremonial robes and occult knowledge available only to initiates — and that thins the awe it inspires in the American people.

Without that awe, certain previously unthinkable thoughts become thinkable.

The Supreme Court has handed down many illegitimate decisions over the years — Dred Scott, Roe v. Wade — that were illegitimate not because they produced horrifying outcomes (though many of them did) but because they were preposterous as legal arguments. But for the Left, the only time the Supreme Court’s legitimacy is in question is when the Left thinks it may not get its way. It has become an amusing media cliché, like “Republicans pounce!” It is never the Left’s policy agenda that is in peril, but only the Court’s legitimacy — or John Roberts’s reputation, as preference dictates. Justice Kagan has argued that the Court suffers from a “legitimacy deficit” and that the proper response is to frankly politicize the Court and move it in her direction, which she of course calls “the center.”

(The center of what, exactly?)

Roe is a textbook example of outcome-oriented jurisprudence, the Queen of Hearts model of legal reasoning. And yet we are expected to abide by it — and Supreme Court nominees are expected by Democrats to affirm the sanctity of it — even though it is, as every honest person knows, legally indefensible, a purely political decision. But purely political decisions are the order of the day, especially when it comes to the so-called liberals on the Supreme Court. John Roberts and Clarence Thomas may surprise you from time to time. The late Antonin Scalia often followed the law to places where his political preferences would have preferred not to wind up. But will Elena Kagan ever surprise you on anything of real consequence? Sonia Sotomayor? To ask the question is to answer it. They are party-line voters, and they might as well not even show up at the courthouse. Ruth Bader Ginsburg has in recent years abandoned any pretense of being anything other than a bare-knuckled political operative and a tribune who understands her role on the Supreme Court as making good on policy deliverables for the Left at every opportunity.

So, the question is: How many illegitimate decisions can a court make before we question the court’s legitimacy?

And that is where awe is really, really useful to people who would rather not talk too much about that sort of thing.

Words about Words

Some of my conservative friends have been mocking this passage from a Washington Post profile of Stacey Abrams, one of the women under consideration for the vice-presidential spot on Joe Biden’s ticket.

Pandemonium ensues as she walks to the far left of the stage, like a runway supermodel, stops on a dime, poses, tilts her head slightly and smiles. Camera flashes explode. She next pivots and walks slowly to the center of the stage, freezes there and repeats the pose. Again, the flashes explode. Abrams is summoning her inner actress, and she is both enjoying the moment and getting through it to get to the conversation.

Stephen Miller asks, rhetorically: “How is every journalist employed by the Washington Post not named Jennifer Rubin not completely embarrassed by this Stacey Abrams profile. [sic] How does something like this even make it past editors who care about their reputations?” Well. The profile, by Kevin Powell, is indeed friendly. But what, exactly, is wrong with the passage above? As an editor, I would have taken out “pandemonium ensues” and “on a dime,” but such clichés are not unusual for American print journalism. As for the rest of it — that’s what happened, no?

I suppose Powell could have written, “Before being seated, Abrams stood on stage and briefly posed for photos.” But would that have been accurate?

Public events have moods and emotional resonances of their own, and communicating those is part of good reporting. I’d have made some edits, but from what Powell wrote I can see in my mind’s eye exactly what happened. Powell’s livelier prose probably offers a better feel for what actually happened than a blander account would have. The Post and the Times generally prefer dry, dull prose in the mistaken belief that such boring writing denotes seriousness. But the people who come out to rallies and campaign events mostly are not bored — they are excited. The reporters may be bored, and the political professionals may be bored, but if the crowd was hopping and if Stacey Abrams was doing a supermodel impersonation on the stage, then that’s what actually happened.

It is in fact very difficult to write an accurate and complete report of a campaign rally or similar event without including one or two things that make the star of the show look good — these events are designed to do just that. That is one reason many reporters do not spend very much time writing about such events. (I like to cover an event like that every now and then, because sometimes you actually see something worth writing about.) But if you are going to write about what happened, then you are going to write about what happened. If you are going to ask people questions, then you are going to report what they said.

Most of the objections and criticism that one hears of these pieces amounts to, “But I hate that person! And they’d never be that nice to somebody from my party!”

Alrighty.

The Washington Post writes from a generally progressive (and much more specifically Democratic) point of view. It is going to have bias problems whether its writers are aggressively boring, as so many of them are, or interesting, or if they are just trying to be interesting, as in Powell’s case.

One of the many downsides of the current situation in which American journalism has been almost completely colonized by opinion and commentary is that media partisans are obliged to adopt and defend ridiculous positions. Donald Trump Jr. can smear Joe Biden as a pedophile and it is all good fun, but a Washington Post writer doing a magazine profile tries to write what he saw at a public event, and we’re all supposed to be shocked and outraged by it.

And so the moronization of our political discourse continues.

Sometimes, young people ask me what they should do if they want to go into opinion journalism. I tell them to go cover the police beat in Philadelphia or the school board in Albuquerque for a couple of years, and hold off on the commentary writing until such a time as they know something about something. But much of our professional commentariat has skipped that step.

Maybe get off the sidelines and off your asses and try doing some journalism.

Rampant Prescriptivism

Several correspondents ask for a vitriolic denunciation of “should of,” “would of,” and “could of.” Do not write these. The mistake is understandable: We like to use contractions, and, in spoken English, should’ve is indistinguishable from should of. If you cannot tell which of those a person is saying, then assume it is the right one.

Speaking of spoken English, that’s oral English, not verbal English. Those words do not mean the same thing. Verbal applies to words in general, oral to words that are spoken. An unwritten contract is an oral contract; every contract is a verbal contract, i.e. a contract composed of words.

Speaking of composed of — it’s never comprised of. The parts compose the whole, the whole comprises the parts, and comprise can generally be used interchangeably with include — and you’d never write “included of.” The musicians compose the orchestra; the orchestra is composed of musicians; the orchestra comprises many different kinds of instrumentalists.

Send your language questions to TheTuesday@nationalreview.com.

Home and Away

The Obama administration’s abuse of counterintelligence powers in the service of parochial political interests follows a familiar pattern from his administration, e.g. the abuse of the IRS for similar ends. The curators of Barack Obama’s legacy insist that his administration was free of scandal — but what it was free of was accountability. More in the New York Post.

You can buy my forthcoming book, Big White Ghetto: Dead Broke, Stone-Cold Stupid, and High on Rage in the Dank Woolly Wilds of the “Real America,” at Amazon and other retailers.

My National Review archive can be found here.

Listen to “Mad Dogs & Englishmen” here.

My New York Post archive can be found here.

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In Closing

Sarah Vowell has written one of those “Woe is me, a Democrat in a red state!” columns in the New York Times. It is a pretty good exemplar of the genre. Vowell begins: “The only reason to be a Democrat running for statewide office in Montana is that, alas, you are one.” About that: The two highest statewide offices in Montana currently are held by Democrats, Governor Steve Bullock and Lieutenant Governor Mike Cooney. Presumably, reelection is a reason to run, too. The governor before Bullock was a Democrat. So were the two lieutenant governors before Cooney.

Montana’s state house is Republican, but it’s a 58–42 split, not a Republican fief. Vowell is unwise to suggest that Democrats “assume that everyone you talk to is a Republican or an independent.” Democrats had a majority in the state senate as recently as 2009.

John McCain beat Barack Obama by about 2 points in Montana in 2008; Hillary Clinton, on the other hand, barely managed to get a third of the vote there in 2016. Maybe Mrs. Clinton was the problem. That certainly was the view from much of the country.

Ross Perot did pretty well in Montana in 1992 and 1996, getting 26 percent of the vote and 13 percent, respectively. Montana likes third-party candidates: Fighting Bob La Follette got a bigger share of the vote there running against Calvin Coolidge than Mrs. Clinton did running against Donald Trump.

Maybe Montana isn’t that Republican.

But that’s the power of the totemic presidency. Like Montana, Kentucky is a “red state” in the popular mind even though Democrats ran the state house from 1921 until 2017, even though it has a Democratic governor, even though it has a Democratic lieutenant governor, etc.

All that matters is fealty to the Big Kahuna, His Excellency, President for Life, Field Marshal Snout, VC, DSO, MC, Lord of All the Beasts of the Earth and Fishes of the Seas, and Conqueror of the British Empire in Arkansas in General and Toad Suck in Particular.

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