About This Blog

Entries beginning with a number are a continuation of the old Judging Crimes blog, which was long focused on the two meanings of its name: the way crimes are judged in America, and the, uh... occasional defalcations and derelictions of the berobed.

Judging Crimes took a long hiatus for some of the reasons explained here.

Entries beginning with Book 'em! are book reviews and commentaries. No attention is paid to the imperatives of book marketing. As Calvin Trillin once pointed out, the average shelf life of a book in a bookstore falls somewhere between milk and yogurt, but in these days of long-tail online marketing that matters less to everyone, and I don't see why it should matter at all to reviewers. Most posts will be about books that have been around long past the time when yogurt would have solidified.

Other entries will be... well, I'm curious to find out what the others will be.

Powered by Squarespace
What's not to like?

Hit the "like" button on Facebook to be notified of mini-blog entries and new posts and columns.

Test Drive the Book!
« Sweet potatoes | Main | 439. Armed incoherence watch »

Getting back to blogging

It's been a refreshing nap. But now I think it's time to get back to blogging.

I came very close to burning through my remaining stock of idealism by writing Judging Crimes. 

Practicing law means chasing trivialities in the pursuit of great things. The criminal law's core subject is society's responsibility to protect its most vulnerable citizens from violence. Nothing government can do is more valuable than that. Indeed, protecting citizens from harm the prime justification for government, the reason our ancestors were emboldened to climb down from the trees.

When prevention fails, justice is the only thing that can restore the lost balance.

But almost nothing lawyers do in our day-to-day practices has anything to do with either safety or justice. It's mostly arbitrary tasks on short deadlines for results that, far more often than not, do nothing to serve the system's own purposes and sometimes actively frustrate them.

Evaluating the criminal law system in the august terms of its own purposes - protection of the vulnerable, justice to the victimized - will eventually provoke seasickness in even the most salt-stained old seadogs among us:

 (The graph is from the ever-informative, often-amusing Ranking America blog, which took it from the National Academy of Sciences.)

We manage that incredible level of violence despite imprisoning a gigantic proportion of our population - making it hard to avoid the conclusion that we've spent most of the last generation or two locking up a lot of the wrong people.

To sum up the data: The American criminal justice system doesn't perform its primary task.

If you spend too much time thinking about why the American legal system is so bad at protecting the vulnerable, and so awful at discerning which people are too dangerous to their neighbors to be permitted to remain in society, it becomes difficult to keep yourself from recognizing that it's the result of conscious policy decisions made by some very powerful people. 

I don't mean they intended the results. Gracious no. The key point is that the people who make the decisions have no responsibility for bad results, only good ones. 

Why is that? Because their job is simply to make correct decisions in the cases that come before them. In an exchange between two of the most hero-worshipped judges in American history, Judge Learned Hand supposedly advised Justice Oliver Wendell Holmes, "Do justice!" To which Holmes responded: "That is not my job. My job is to play the game according to the rules."

Or as Chief Justice John Roberts famously said, "Judges are like umpires. Umpires don't make the rules; they apply them... [I]t is a limited role. Nobody ever went to a ball game to see the umpire" - the last a weird non sequitur, because what does the expectations of fans have to do with the role of the umpire?

Both Holmes and Roberts were lying. I don't mean the game metaphor is misleading, though of course it is. I mean they were flat-out lying, because the job of a Supreme Court justice is precisely to make the rules. 

First they decide what result they want. Then they make a rule to achieve it. That's what Supreme Court justices do.

Which is why their decisions are always correct. Within the legal world's frame of reference, it is - quite literally - impossible for the Supreme Court to do wrong. Any judge's decision, at even level, is always correct until it is overturned.

That's why it was, in the Supreme Court's view, wrong for Martin Luther King to disobey an outrageously unconstitutional ruling by a racist judge. The outrageous and racist ruling was, in the legal scheme of things, wholly correct and proper right up until the instant it was reversed.

"Right" and "wrong," within the legal world, is a matter of power. Only if another court has the power to overrule it can a judge's rulng ever be wrong. And since no other court has the power to declare the Supreme Court's rulings wrong, it follows that the Supreme Court's rulings are never wrong. 

Simply by deciding cases, the Supreme Court decides them correctly. The actual content of a ruling is completely irrelevant to its correctness. It follows that if anything bad occurs as a consequence of the justices' decisions, it isn't the justices' fault, since they were merely applying the law... that they made up in the instant of applying it. 

That's why, if you visit to Supreme Court's ground-floor museum of self-adulation, you'll look up at a gigantic oil painting of the man who said that black men had "no rights which the white man was bound to respect." 

The man who wrote those words is revered as a god - today - in the seat of our government. (There's a marble bust of him, too, which does a better job of playing down his resemblance to a spider.)

He wrote those words in the opinion that originated the doctrine of "original intent," today most associated with Justice Antonin Scalia - the belief (or, more properly, bluff) that the Constitution means whatever Justice Scalia wants it to mean, because the Founders (whoever they were, exactly) would have wanted the same thing, if they'd ever gotten around to it.

Feeling faintly seasick yet?

I found that thinking hard about the criminal justice system wasn't compatible with practicing within it, and I still had a few years left before early retirement. I was recklessly burning up my fast-dwindling store of idealism, to the point that I had begun to suspect that "idealism" was just another word for willul self-deception. 

It was time for a nap.

This retooled blog won't give up the old obsessions. It will continue to draw attention to the huge gap between real life and the dumbed-down, ritualized dramas of the courtroom, and the theoretical desirability of a judiciary that tries to accomplish something more than orderly stage management within the context of amateur theatrics.

It will continue to point out the ludicrous extremes judges are obliged to go to before they can attract the censorious attention of judicial standards commissions - and the grim determination of many judges to prove themselves entirely capable of surpassing even those limits.

But it will talk about other things, too. Many other things. I don't know exactly what, yet, but I'm curious to find out. 

References (1)

References allow you to track sources for this article, as well as articles that were written in response to this article.
  • Response
    Response: news feed
    magnificent submit, very informative. I wonder why the opposite specialists of this sector do not notice this. You should proceed your writing. I am confident, you have a huge readers' base already!

Reader Comments (3)

It's about damn time, Joel! Great to have you back.
January 22, 2013 | Unregistered CommenterBen
Welcome back!
February 18, 2013 | Unregistered CommenterChuck
You say that the Dred Scott opinion "originated" the doctrine of original intent. So you're saying that Blackstone's support for that doctrine, predating the Dred Scott opinion by many decades, was completely fabricated?
May 1, 2013 | Unregistered CommenterAW

PostPost a New Comment

Enter your information below to add a new comment.

My response is on my own website »
Author Email (optional):
Author URL (optional):
All HTML will be escaped. Hyperlinks will be created for URLs automatically.