The Crisis of the Court

There is a lot I could say about Sonia Sotomayor , but for a moment I want to beat a strategic retreat to some more theoretical ground about the Supreme Court and our intensifying problem with it.

The motivation for this move is uncomplicated. There is something deeply tiring about gearing up — as a blogger, but, I imagine, also as a politician, a staffer, or even a plain citizen — for yet another totalitarian conflagration in a teacup, another all-out war in what is now a long series. At a certain point, my dread, for instance, over what Sotomayor might be like on the bench is eclipsed or overcome by a longing to regain at least dispositional control over the situation. And by ‘the situation’ I mean less the nomination of Sotomayor than the deep, structural crisis tightening and tightening around the Supreme Court and its role in our political society.

One way of describing this motivation is therapeutically: I shift my approach to an issue trending against my preferences in a bout, so to speak, of self-medication. This might be true, but it needn’t be; I might simply have been worn out in a department of human character more general than courage or tenacity. I might have gotten the sneaking suspicion (perhaps it snuck up all at once, or I turned around all of a sudden to see it) that the current approach to the nomination of a ‘bad judge’ to the Court — the fever of mobilization and infomania, the rapt attorneylike combat and the eye-popping anger over the stakes and the personalities — has become counterproductive on an essential human level. I mean counterproductive as in disorienting, draining, and straining to a point that imposes its own kind of self-reflective moment of exhaustion or pre-battle pause. To cease hitting one’s head against the wall is not, as far as we can make sense of the term, therapeutic.

But it’s the height of therapy to reconcile oneself to the continued existence of the wall by celebrating the end of head-hitting as a great advance in the war on suffering. So the dilemma or test that I face is similar to Nietzsche’s, insofar as Nietzsche always had to struggle to prove, to himself not least of all, that the ethic of affirmation was not a mere strategy — perhaps the crowning strategy — of a therapeutic techne . Even worse, perhaps even more vulnerable to the charge of mere therapy is a Rortyan pragmatization of affirmation, adopting it as an ethic insofar as it works, not insofar as it invests our lives or selves with ultimate meaning. Therapy is a slur in this context because it’s seen to evacuate or crowd out politics, the aspect of the world in which there areand must always be winners and losers. Therapy — as Hunter Thompson put it, learn to enjoy losing.

So I think, unsurprisingly, that there really is a political advantage to be gained from backing out of the cornered-rat approach to dealing with the Sotomayor nomination and taking a wider view — a view in which what matters is the crisis of the court writ large. That crisis is captured in the spasmatic furor that surrounds the nominating process, but it’s not coextensive with it. The crisis, put simply, is this: increasingly, Supreme Court justices are seen to give us the worst of both the legislative and judicial worlds. They are too arbitrary, yet not independent enough; they are too ideological, yet also too personal; they are too inclined to think of ruling as mere voting, yet also too inclined to think they rule. To be sure, combining the worst of both worlds gestures toward despotism, but that word ill serves us here. Justices have no executive power, after all; the strange combination of emotivism and technocracy captured in the latter-day lawyer’s art is very unlike the fiat of a Nero, who, like all despots of the democratic imagination, was cruder in both directions. Increasingly, it is devilishly difficult to critique a would-be Justice on a basis other than their attitude. The stakes are too high to sit back, arms crossed, and skeptically wait for them to issue a few opinions and rulings before passing judgment. We must weigh their personality, their whole person, their them — and we must do it now , before it’s too late.

We, in this instance, means last and most of all the Congress. Pathologically, our representatives are pressured to vote for or against would-be Justices on an uncannily similar basis to the one on which ‘bad judges’ rule — reaching behind the data to get to the hidden desires and character beneath. To combat the packing of the Court with despotically enlightened hermeneuts of suspicion, our representatives are to get increasingly despotic in their own suspicion as they interpret their way to the truth about a nominee.

Some will argue that bad judges actually wear it on their sleeve — that Sotomayor’s badness is self-evident, or, to be more Real America about it, plain as the look on her face. But the point I wish to emphasize is the intensity with which this claim is lodged has to be registered within our broader, and justified, anxiety about what’s become of the law. The law, we now understand, is a realm in which any opinion can rule if it is asserted with the right techno-linguistic expertise. The classic fear of politics — servitude under rhetorocracy — has returned outside of politics in law. To us, politics is now law for dummies — but law is beyond good and evil. We long for rhetorocratic lawyers who idiosyncratically share our idea of the good, and we find ourselves with no way to secure the enjoyment of this felicity but clobbering one another with the votes of our representatives every time a new candidate appears to fill out the bench.

In consequence, Supreme Court Justices become mere representatives by proxy — metarepresentatives in the very untheoretical sense that they are the elected representatives of our elected representatives. The effect is something like holding a national vote on Bush v. Gore every time someone retires from the Court. But instead of simply holding that vote and having done with it, the vote becomes a combination of the Siege of Stalingrad and the Children’s Crusade. Neros all, we fiddle so hard to beat our devils that our whole house of mirrors goes up in smoke. And, as Abraham Lincoln forever counsels, a sinister flaming funhouse divided cannot stand.