232. Is there life on earth?
When the previous Chief Justice talked about Bush v. Gore, he did so with a certain degree of haughty dignity: "[T]he Supreme Court of the United States became involved [in the presidential election] in a way that one hopes will seldom, if ever, be necessary in the future." (Seldom? Like, no more than once every eight years, unless the Democrats get in?) (Necessary?)
When Justice Scalia spoke about it recently, he said: "It's water over the deck -- get over it!" I wonder if he meant "water under the bridge" - a nice peaceful image. "Water over the deck," by contrast, implies storms. Freak waves. Swamping. Boats disappearing in an instant, like the famous cannibal yacht. The Wreck of the Medusa. (No, it's not just a Pogues song.)
Scalia was trying to be funny, but as Freud pointed out there's often an undercurrent of hostility in humor, and it's the thuggishness of Scalia's remark that made it newsworthy. But it could hardly be more wrong, and its timing could hardly be more grotesque: he made his "joke" in the same week we learned that 34,000 Iraqi civilians were killed in 2006.
For my children's sake I hope I'm wrong, but I'm afraid that in the future we'll look back on the period from November 9, 1989 to December 12, 2000 as a heartbreakingly brief golden age, one that we didn't even know was golden as we lived through it. I'm afraid that future historians will look upon Bush v. Gore as a crucial turning point in national history. If so, it won't be because of the words the justices used, or the pseudo-constitutional doctrine they announced, but because of the events they set in motion.
And so Scalia's remark reveals something very basic about the judicial project: judges' responsibility ends with the case. That's why, to a lawyer's mind, it seems so discordant - so wrong - to suggest that judges who prohibit the punishment of a quadruple murderer (see post 224 and post 225) are responsible for his subsequent criminal career. They decided the case, and then the case was over. The subsequent rape, the subsequent murder, the orphaning of three children - all of that was merely a "tragic set of circumstances", as one of the judges put it.
Well, it's tragic, all right. But can anyone dispute that it was also the foreseeable result of a deliberate, conscious decision by that judge and his two colleagues?
It's basic to the judicial project, and perhaps necessary for judges' mental health, to believe that nothing that occurs outside of the courtroom is the responsibility of judges. Only that which occurs inside the courtroom is real enough for a judge to take notice of it.
That's how Scalia could say, and in a delusional way perhaps even believe, that Bush v. Gore is "water over the deck."
Tuesday, January 30, 2007 at 10:53PM in Courtroom unreality, Holding reality at arm's length, Individual justices, Supreme Court's role
Reader Comments (2)
My point is simply that cases always have an afterlife. Often it's nothing significant, but sometimes it's tragic in the way Ealy's case is tragic, and once or twice in our history (Dred Scott comes to mind) it's been tragic in the much more profound sense in which this 2001-2009 era has damaged our country.
For Scalia to suggest the case is over is grotesque. We're living (and some of us, and many Iraqis, are dying) with the results every day. He wished the short-term result, as you say. But we're stuck with the long-term results.