114. Holy Writ
American courts lay on the religious symbolism pretty thickly. The judge goes into a room closed to the public inside a public building, where he or she puts on a priest's black robe - judges and the clergy do their shopping at the same places. Then, in most American courthouses, the judge steps through a door or curtain in the manner of an Orthodox priest stepping through the Royal Door of the iconostasis.
Following a route open only to the elect, the judge takes a position behind an altar-shaped structure at one end of a large, high-ceilinged room. The bench is typically raised on a platform like that of a chancel. Spectators, arranged on wooden pews facing his end of the room, rise to their feet as the judge enters the room. The front part of the room is divided by a low barrier, much like an altar rail, beyond which only the elect (and their clients) are permitted to pass.
The business with the robes is not necessarily such an ancient tradition. According to Sheldon Novick's biography of Oliver Wendell Holmes, Jr., justices of the Massachusetts Supreme Judicial Court didn't wear robes until the Anglophile Holmes climbed into their midst. Judge Jack Weinstein of Brooklyn, original author of a fabulously-successful treatise on the Federal Rules of Evidence, makes a point of not wearing the robe. The only purpose contributors to PrawfsBlog could see for the robe was the projection of power, and it's hard to see why a robe would project power but for the religious overtones.
Washington State goes as far as to house its Supreme Court in something called the Temple of Justice. You can just about smell the incense wafting from the page when you read certain Supreme Court opinions, as when Justice Brennan included in a single sentence "solemn", "sanctity" and "Writ."
Still, I didn't realize that the parallels went deeper than symbolism and occasional excessive self-regard until I listened to the Recorded Books version of Hans Kung's The Catholic Church: A Short History. In the 11th century, for instance, Humbert of Silva Candida (a lawyer, as it happened) developed the doctrine that the "papacy was the source and norm of all laws, its supreme authority, which could judge all but could not itself be judged by any." That's rather in the spirit of Justice Ginsburg telling members of Congress they have no right to criticize the Court that strikes down so many of their enactments as unholy, er, unconstitutional.
The Pseudo-Isidorian Decretals were a collection of forgeries that influenced many, including Thomas Aquinas, over the course of centuries, before their falsity was exposed in the 16th century. Their purpose was to create a false history that served the interests of one church institution in its struggle against others, rather as the faux-history of the Supreme Court (see post 30 and post 81) is intended to convince us that everything the Court does is sanctified; the fact that it also aggrandizes the Supreme Court is serendipity.
Pope Leo X (whom Kung characterizes as a "superficial playboy") responded to Martin Luther and the Reformation by demanding "submission to the teaching of the church, presupposing that the church, the pope, and the gospel were identical." Certainly members of the Supreme Court see no distinction between their opinions and the Constitution; violating the "clear rule" of one of the Court's constitutional opinions is, ipso facto, a constitutional violation
The doctrine of papal infallibility was first mooted around the turn of the 14th century, championed "by an eccentric Franciscan by the name of Petrus Olivi" who might mainly have hoped to bind future popes to Pope Nicholas III's decree recognizing the Franciscan order. In 1324 the doctrine was condemned in a bull of John XXII "as the work of the devil, the father of all lies".
The doctrine was nonetheless adopted at the vigorous insistence at Pope Pius IX, whom Kung characterizes as "an emotionally-unstable man untroubled by intellectual doubt who evinced the symptoms of a psychopath". But the doctrine has, in its short lifetime, entangled the Church in numerous contradictions. Kung reports that "no pope has ever ventured to repeal the unpopular decree Haec sancta on the supremacy of the council or to declare that it is not universally binding, because of the damage that would do to the notion of papal infallibility."
The doctrine also makes it difficult for the Vatican to deal with the legacy of the now-beatified Pius IX and the canonized Pius X, the anti-modernism crusaders and would-be temporal rulers of central Italy who did so much to make anti-Semitism something very close to the official policy of the Church, as documented in painful detail by David Kertzer in his books The Popes against the Jews (given a much better title in its English edition) and The Kidnapping of Edgardo Mortara.
How, after all, can the papacy reject their grotesque errors, or the horrible unintended consequences of Pacelli's diplomacy and (after his coronation) his silence on the Holocaust? To criticize them, even to characterize them as less than saintly, would be subversive of the very notion of infallibility.
Our Supreme Court works itself into similar corners by its reluctance to admit its own past errors. The reason Justices Souter, Kennedy and O'Connor gave for not overruling Roe v. Wade was that it would delegitimize the Court if it were to admit one of its most consequential constitutional rulings was erroneous.
To this day the Court prohibits America's lower courts from directly enforcing the privileges and immunities clause of the 14th Amendment. Rather than admit that its 1873 decision (the ironic genesis of which is told here) was fallible, the Court has, over the course of a hundred cases, ruled piecemeal that the privileges and immunities granted to American citizens are enforceable against the states through the due process clause - a typical Rube Goldberg mechanism by which the Court creates exceptions to its own rules, which were themselves exceptions to previous rules, and so on back to the original sacrosanct error.
The alternative to this process of building constitutional edifices on foundations of sad errors is to admit either that five of the Court's members didn't understand what the Constitution actually meant, or that they understood its requirements but consciously ignored them. O'Connor, Souter and Kennedy had a point.
Wednesday, May 24, 2006 at 09:40PM in Religious symbolism
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