219. Power-worship

I've never wholly understood why lawyers, and particularly legal academics, are so prone to hero-worship.  Merely pointing out the fact that Brandeis was appointed by our most racist post-Civil War President, and did nothing at all to help Black people while segregation was descending upon them, is cause for apology - that is, apology by the person making the observation.  (See post 197.)

Brandeis, you see, is a Judicial Hero, and Judicial Heroes, by definition, can do no wrong.  This tendency is comically on display in Slate, which has run excerpts from the late Justice Brennan's private notes.  The notes reveal Brennan to be sanctimonious and malicious, a very unpleasant combination of attributes, but Jim Newton, who edits them for Slate, seems not to notice.  Brennan, you see, is another Judicial Hero.

(Newton recently published a biography of Earl Warren that, I think it's safe to assume, is worshipful.  See post 205.)

Why are lawyers and legal journalists so prone to hero-worship?  Partly, I think, it's the posse effect: these people exercise enormous power, and there is a certain personality that worships power, and needs heroes to personify it.  For example, we're informed that

Barry Bonds' buddies have become the biggest obstacle between the embattled slugger and the one-year, $20-million contract the San Francisco Giants offered him more a month ago.

Club executives are insisting the contract they offered to Bonds on Dec. 7 includes a proviso that would bar trainers, personal assistants, friends and other members of his entourage from the locker room at San Francisco's AT&T Park and other team facilities.

"The posse rule is the real sticking point in the Bonds deal," a baseball source familiar with the talks said. "Bonds doesn't see why anything needs to be different than in the past, or different from any other players."

Some people feel important, rather than degraded, when they attach themselves to the powerful.  The closer the object of their worship approaches perfection, the greater the importance of the worshippers.  Biographers have to fight to same tendency, because after all if the subject of their biography isn't worth years of the biographer's life, then ...  no, it's just not possible.  It can't be possible.

So one can think of law professors and journalists gushing on about Brennan and Brandeis as the towel boys following their judicial heroes - swollen not by steroids but by homage - around the robing room.

Another possible explanation involves the other type of posse, the ones wearing the white Stetsons.  The belief that there are good guys and bad guys, and that it's easy to tell the difference between them, and that once having made the distinction you never have to give the matter a second thought - it's very comforting. 

Anyway, Newton lists the great accomplishments of his two heroes this way:

The legacy Warren built and Brennan protected includes: the elevation of federal authority over state power; the protection of a robust press; the insistence on desegregation, then integration of public services and facilities; the development of rules of criminal procedure to protect suspects and defendants; the insistence on voting equality; the enshrinement of a right of privacy and its application to abortion.

What all of these have in common is not "liberalism" in the fuzzy way Newton apparently conceives it.   What, after all, is "liberal" about "the elevation of federal authority over state power"?  It's exactly like saying that the current Air Force One is more liberal than its predecessors.  Power is politically and morally neutral.

But note this: in the sixth year of the Presidency of George W. Bush, Slate is still airing the view that increasing federal power is inherently "liberal."  What better proof that lawyers (and legal journalists, too, evidently) don't accept the existence of reality outside the courtroom?  (See post 207.)

Next on Newton's list is "the protection of a robust press".  (He's not saying the newspaper business is robust, is he?  Or that monopolizing radio conglomerates have proved lively fonts of useful information?)  (See post 18.)   Now, I'm inclined to think that Brennan's "actual malice" compromise, while not actually based on the Constitution, split the baby between the first amendment absolutists and the common lawyers on the Court in a way that has proved fairly serviceable. 

And I personally think it's a good thing that "plaintiffs who won awards at trials [against media defendants] from 1980 to 2004 kept these awards in only about one-third – 35.9 percent – of cases."  But what that means, of course, is that the power to determine what is libelous has been decisively shifted from juries to appellate judges applying rules laid down by federal courts.

Newton then gives Warren and Brennan credit for desegregation and integration, which explains why tomorrow the federal government will be closed down in their honor.    As for those non-white non-judges who allowed themselves to be firehosed and set upon by police dogs - well, I'm sure the poor dears were doing what they thought best.  But it was the noble white men back in Washington who did the real work - work that consisted exclusively of undoing the evil their institution had visited on the nation during the previous 90 years. 

It was a very good thing that, after 90 years, the Court finally decided to allow portions of the 14th and 15th amendments to be enforced.  (It still prohibits enforcement of the privileges and immunities clause.)  But that shouldn't prevent us from recognizing that the Court's sole practical contribution to the Civil Rights movement it so belatedly joined was to increase the authority of federal courts over state institutions.  Like I say, that was a good thing - I'm foursquare behind Lincoln and the Union.  What, after all, was the Civil War if not the use of federal power to destroy state institutions? - institutions whose regrowth the  Court authorized during the 1865-1954 era.

Newton gives his heroes credit for "the development of rules of criminal procedure to protect suspects and defendants", by which he means transferring the power of deciding which acts of violence should be condemned by society from the people to federal judges.  This is another Air Force One example of liberalism.

As for voting equality, it certainly was a good thing that the Court, in the 1960s, finally began to back down from its refusal to allow American courts to enforce the 15th amendment.    But in practical terms it means that  congressional and legislative apportionment is decided by the courts rather than by democratic processes.  Stuart Taylor, Jr. has described  the Court's redistricting decisions as "wrong, stupid, and arrogant", which doesn't overstate the matter.

Finally, Newton lists the right to privacy and to abortion.   Roe v. Wade, the founding document of the religious right, declared that whether, and under what circumstances, a woman can seek a legal abortion is not a matter that the American people can decide for themselves by democratic means.

All of the items on Newton's list have one thing in common, and it's not liberalism.  All of them increased the power of unelected federal judges to control society.  The fact that Newton seems blithely unaware of something so obvious only goes to show, once again, that Orwell was right: "power-worship blurs political judgment".