Rio Pierce wrote this post for Law & Mind Blog:
Marbury v. Madison, Miranda, and Brown v. Board of Education are hallmarks of a judicial canon that preaches a heroic vision of Constitutional Law arbitrated in our highest tribunal. These cases tell a story of the judicial process that reflects a flattering normative vision of the American government. These are the cases that may be most likely to be emphasized when a middle or high school student is first introduced to judicial review. Running concurrently alongside this set of cases is an antinomian canon, constituted of cases such as Dred Scott, Plessy v. Ferguson, and Bush v. Gore, that tells a story of the court as a political institution, embedded in the culture of its time. A particularly notable subset of these decisions occur during wartime. In cases such as Korematsu, the Supreme Court upholds dramatic, discriminatory suspensions of civil liberties that are justified on the basis of necessity, created by a perceived existential threat. Then, inevitably, the existential threat disappears, the threat that the case generated begins to seem overblown and ridiculous, the decision is dismissed as an unfortunate mistake, there’s a general sense that we’ll ‘do better next time’, and then next time comes, and the whole cycle inevitably repeats itself. Particularly notable, in cases such as Korematsu, is our general view of WWII – a heroic time for the ‘Greatest Generation’, and our relative shame about the Korematsu decision. This bifurcation is a more complicated stance than the universal scorn that we now hold for slavery, and a representative decision of that stance, such as Dred Scott. But is there more to these judicial opinions than mere hypocricy?
The rhetoric of the judicial opinions in these cases themselves is intriguing; these judges state, at least in their opinions, that they are making a neutral balancing between the rights of the individual and the needs of society at large. The opinions insist that the individual, a member of the group producing the existential threat, may win; although the balancing seems to be conducted on a rigged scale.
For instance, in Justice Black’s majority opinion in Korematsu he states that ‘all legal restrictions which curtail the civil rights of a single racial group are immediately suspect…..Pressing public necessity may sometimes justify the existence of such restrictions; racial antagonism never can.’ But of course, here there was a pressing public necessity to detain indefinitely a large group of American citizens of Japanese dissent… “In the instant case, temporary exclusion of the entire group was rested by the military on the same ground. The judgment that exclusion of the whole group was, for the same reason, a military imperative answers the contention that the exclusion was in the nature of group punishment based on antagonism to those of Japanese origin.”
Justice Frankfurter’s concurrence in Dennis, a First Amendment case concerning the imprisonment of members of the American Communist party who were advocating the overthrowal of the government’ develops this argument further. Frankfurter insists that Federal sovereignty is not unlimited ‘But even the all-embracing power and duty of self-preservation are not absolute. Like the war power, which is indeed an aspect of the power of self-preservation, it is subject to applicable constitutional limitations.’ After conducting an extensive examination, Frankfurter ultimately concludes that the constitutional limitations do not happen to be applicable.
Pragmatically, Frankfurter’s rhetoric seems to border on the absurd. Will the United States relinquish its power of self-preservation because of ‘constitutional limitations.’ It’s a pretty, Kantian vision of the constitution as a categorical imperative which the United States will follow, if necessary, into oblivion. But of course, there is enough slack in the constitution, and enough nimble reasoning in any Supreme Court Justice’s pen to assure that in a time of seemingly existential power, the constitutional limitations, just in this instant case of course, are not so stringent as to require oblivion. Furthermore, these judicial decisions seem to happen when all, or almost all of society is united, against an external threat. (Society at large seems to be mimicking, in these times, the famous Robbers Cave experiment, where two groups of boys at camp, induced into conflict by the manipulations of observational psychologists, united together when their overall community seemed to be under threat.) In such instances, the judiciary has no strong minority upon which to base their support. Furthermore, the judiciary is constituted of individuals who are members of the community, to expect them not to be swept up by the larger rhythms of the community seems to embrace an utterly unrealistic portrayal of the act of judging. The judiciary also must depend on other branches of the government in order to enforce its orders; to overturn a detention, and then lack an enforcement mechanism, would mockingly reveal the gaps and assumptions that underlie our system of divided government. The judiciary is designed to be countermajoritarian, but to expect it to be counter-consensus, considering all of these factors, seems to be ridiculous. I believe, however, that something more is going on in these opinions, although it may just be a theoretical gloss on this cynical take.
Terror Management Theory is a growing body of scholarship that discusses a human, or a society’s reaction, in a time of existential threat. The scholarship finds that political, and other belief systems give people a sense of value when they need it most; when themselves or the society they belong to seems to be under threat of annihilation. Awareness of one’s mortality, as is obviously produced by a global war or the events of 9/11, has been found to produce ‘greater patriotism, a stronger endorsement of the unique validity of one’s own religion, greater attention to established norms of procedural fairness, and a generally stronger preference for aggressive responses to individuals and groups who are perceived as threatening to the cultural worldview.’
When society as a whole experiences these responses, the judiciary is left in a unique position. First, an existential threat will make our society unify itself around the concept of ‘America’ and ‘American values.’ Much of what defines America, in our self perception, is our constitution, perhaps the closest thing we have to a secular religion. As our society searches for a way to define itself in contrast to the hostile other, the constitution, and its embedded values, seems the natural object upon which we can justify our own ‘unique validity.’ Furthermore, TMT suggests that we will continue to value at least theoretically, ‘procedural fairness’; this seems particularly likely in this circumstance, as the procedural values of the constitution are one of its distinctive and most emphasized values. But, of course, at the same time, we will also want to aggressively respond to anyone that we perceive as threatening our existence. The judges, as upholders of the constitution and by extension ratifier of our own ‘specialness’, have a critical role to play in the response dictated by TMT. On one hand, they must act in a way that affirms our specialness, they must demonstrate that we are ‘better than the other guy’, that the secular religion of the constitution is genuine. Yet, at the same time, the decision they reach must, on a zero sum level, ratify the aggressive response we wish to enact upon our enemies. The opinions, in cases such as Korematsu, can be seen to fulfill both of these contradictory goals. On the one hand, the judge affirms that ‘Our Constitution has no provision lifting restrictions upon governmental authority during periods of emergency, although the scope of a restriction may depend on the circumstances in which it is invoked’ or that ‘The First Amendment…..exacts obedience even during periods of war; it is applicable when war clouds are not figments of the imagination no less than when they are.’ On the other hand, the judge reaches the necessary result, and upholds the ultimate punishment of our enemies. The judiciary is producing the response that our society psychologically needs at such a time, it is beautifullyreiterating our values even as it affirms actions that, when our passions have cooled, will seem to contradict the values that we find.
‘Legal interpretation takes place in a field of pain and death’ wrote Robert Cover in his memorable essay, Violence and the Word. The decisions discussed above, consciously written during times of terror, seem to directly acknowledge the pain and death they inflict. There is, impressionistically, a certain thinly veiled pride in these opinions; the judges seem to see themselves as soldiers in a larger societal struggle, playing their part to uphold the society, just as surely as the soldier with his gun. The above paragraphs have painted, I think, a pessimistic view of the role of the judiciary in these moments of existential crises. There is a more sympathetic interpretation available.
Martha Minow, in a response to Cover’s essay wrote of the possibilities of ‘rights discourse.’ Minow focused on the transformative possibilities of rights discourse for minority communities. Rights discourse allowed minority communities to participate in a broader community dialogue. By staking rights claims, these minority groups were able to participate in a broader communal dialogue. Furthermore, rights talk emphasizes the power of words to restrain community action, to stay state power, and to work as a form of persuasion which reconfirms community. To Minow, ‘legal language can be the possessions of the dispossessed.’
The legal arguments of the dispossessed, of Korematsu and Hamdan, seems to clearly qualify as the potentially positive form of ‘rights interpretation’ which Minow believes to be a beneficial practice. Conversely, to term the rhetorical articulations of the judiciary, enacting state power at the behest of the majority will, rights talk seems to border on the perverse. However, the American tribal community is a private community which does not perfectly align with the institutions of government. Furthermore, this tribal community generally lies dormant, a backdrop identity which is assumed but has relatively little weight in intra communal dialogues. Inter communal conflicts, even if the inter is simply a member of the community who can be labeled as an ‘other’, reawaken this community and the normative commitments which it holds dear. The judiciary, and the decisions it writes, engages in a process of ‘rights interpretation’ which emphasizes the possibility of staying state power, and restraining community action. These possibilities serve to define the American community; even if, in the practical reality of a situation such as this, it is so unlikely, as to border on the impossible, for it to be exercised. By engaging in a process of ‘rights interpretation’, even though the game itself is rigged, the Court is reaffirming the normative commitments of the tribe and leaving open the possibility for the exercise of these rights when the psychological demands produced by existential crisis ebb. Publicly discussing the asserted rights of the beleaguered minority who serves the form of the ‘other’ affirms the private community of America. Rights talk, in a time of existential crisis (and perhaps at all times), is a two way street. The minority ‘other’, such as Korematsu, is claiming rights which ‘implicitly invest themselves in a larger community’. At the same time, the majority, driven by psychological need for a reaffirmed vision of the normative possibilities of the American state, derives its own benefit from also speaking a language of rights and balances, emphasizing the presence of community norms that provide self-definition even while allowing conduct which, retrospectively, will be seen as violation of those norms. However, without affirming the presence of these norms and rights in a decision like Korematsu, we wouldn’t have a standard against which to judge violations, retroactively, when our communal psychology is no longer in such a state of strain.
The Situationist 