About This Blog

Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system.  It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist.  It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say.  I know what they do because I deal with the consequences every day. 

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power.  But it is the exercise of power itself that should command our attention, not the justifications.  Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it. 

American law professors have long liked to say they teach their students "to think like a lawyer."  Learning to think that way is a matter of internalizing certain assumptions.  The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question.  Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so.  Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions  rest.  

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links.  Many other blogs already do that, far better than I could hope to do.  (Check out these.)  Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine.  I hope to post new pieces several times a week.

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In Our Name
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Monday
Aug312009

380. Don't think of it

If you had told me six months ago that Americans could work themselves up into spittle-spraying rages in defense of their insurance companies, I might not have believed it.  Forgive me for doubting you.

The New York Times reported that in his Saturday radio address, Wyoming Senator Mike Enzi charged that they - you know, them - wanted to "intrude 'a Washington bureaucrat in the relationship between a doctor and a patient.'"  (Just one?)

At least he included the word "Washington."  In an earlier tryout of the same line, Iowa Senator Charles Grassley forgot the adjective:  "What we stand for is to make sure that no bureaucrat gets between the doctor and the patient."

Now, how many of the Iowans who cheered that line have ever known what it's like not to have a bureaucrat between themselves and their doctors?  I know I've never experienced it. I've always had  insurance.

Perhaps I've just been unlucky, but my experience with insurance bureaucrats is that they aren't universally as sincerely interested in my well-being as, for example, mail order telephone operators.  Those nice  L.L. Bean ladies don't send out statements with different amounts in the "allowed" and "authorized" columns, or drop computer-generated footnotes clumsily translated from binary code, or deliver 10% of the promised polo shirt because the rest went to the deductible and co-pay.

The anti-reform movement uses highly-theatrical tactics not just to "buy" free media coverage, but to keep people from thinking about alternatives.  We can all agree my doctor good, bureaucrats bad, and grandma shouldn't have to say "I'm not dead yet" every five years.

But the alternative is a system in which medical decisions are made by entry-level clerks working in Dilbertian cubicles, whose bonuses are keyed to their willingness to question the medical judgment of doctors.  One that provides the United States with by far the least-efficient health care system in the First World.  (That last link is a doozy, stat-wise.)  The one with the death panels.  You know, the status quo.

Not thinking about alternatives seems to be a kind of endemic mental disease in the temperate middle zone of North America.  It explains so much about so much, including (you knew this was coming) the administration of the criminal law.

Justice Scalia said that prohibiting states from prosecuting wife-beaters has "the effect of allowing the guilty to go free."  But does it also have an effect on the wife?  If so, you won't find any suggestion of it in Scalia's opinion. Like the town-hall ravers grooving on the anti-ecstasy of talk radio, he resolutely prevents himself from thinking in terms of complicating reality. 

This isn't a tic of the right.  Justice Stevens said that allowing the police to roust armed gangsters selling crack on street corners violated their first amendment right to sell crack on street corners.  But, needless to say, that's not how he phrased his opinion.  He never admitted in writing that he was writing about a choice between real-world alternatives.

The health care screaming matches and Scalia's and Stevens' opinions share an intellectual approach: conceptualize the dispute in the way most congenial to your prejudices, then deny that anything else is at stake. The key is to frame the issue as a choice between a noble abstract principle and the baseness that is its opposite, while refusing to permit your mind to consider the possibility that it's also a choice between two realities.

The difference is that the justices don't have to scream, except when they're writing a minority opinion.

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