Doing it Legal

I’m trying to get up off the ground. I’ve cried wolf before, and I can’t be sure it isn’t happening again. But I’m trying ways to persuade myself this Supreme Court decision to allow unlimited corporate funds into the political arena isn’t the final nail in the coffin of America’s democracy. Really. Is this the final round? Is it Plutocracy 1; Democracy 0, game over?

The Supremes have decided that corporations, worth twice as much collectively as the U.S. GNP, long ago declared individuals from the legal perspective, should now run the race for political influence from the same starting point as individual individuals like you and me. Even though their fortunes are seventeen times bigger than what unions can generate (even if they could ever get together on a single issue), they can run the race from the same starting line as regular individuals. Picture me, with my arthritic right foot, my gut and my other 70-year-old old fart ailments running a marathon with a 20-year-old Olympic runner from Kenya.

Another image I like is “Vocal chords on a Cayman Island post office box.”

The wheels came off as my wagon rolled through the swamp of cynicism I pass through between Taylor’s of Harrogate tea and Danish strawberry rhubarb jam every morning and wine at dinner every evening, and I’m sitting here not knowing how to get up and out and back in the swing of things.

So what to do about this? Besides sit here, eat macadamia nuts, listen to Mozart and play free cell, I mean.

Have you ever noticed that when people die survivors spend a lot of time talking about the details of the illness that killed them? It’s like we don’t know what else to say and this is a way of making sense out of something basically senseless.

That’s what “picking up and carrying on” feels like with this Justice Kennedy decision. I’m calling it Kennedy’s decision because he wrote it and because he’s the one who disappointed me. I have no expectations of the other conservatives on the bench. I’m convinced Clarence Thomas is a rotten human being and Scalia is an old-fashioned bully. Alito and Roberts may not be monsters, but they are Bush II appointees with long records of coming down against individual liberties (except the right to own submachine guns, of course) and Roberts is pretty much the Republican Party’s ambassador to the Supreme Court. No surprises there. It was Swing Voter Kennedy that I feel let us down. Of all the times to swing conservative…

So why did he do it?

When same-sex marriage went on trial in the spring of 2008 (In re Marriage Cases (2008) 43 Cal.4th 757 [76 Cal.Rptr.3d 683, 183 P.3d 384],) I watched it like a hawk. In the process, I learned an enormous amount of stuff about the law, about how trials are conducted and legal arguments are constructed. I learned how very different the law is from real life.

I know that makes me sound naïve. I won’t argue that except to say I don’t think most people realize how often arguments are made in court that would suggest people are ignoring common sense and focusing on trivia and missing the woods for the trees.

We won on same-sex marriage. That trial with the very strange name: “In re Marriage Cases”. It was the most joyous feeling I had in years. It’s been pretty much downhill since then, of course. Prop. 8, and the Supreme Court’s decision to uphold Prop. 8. Citizens United v. Federal Election Commission was the coup de grâce. The shot in the head. We were dying pretty much anyway.

Of course, we’re still here. Wish I could be sure the image is of folk too ornery to die, and not chickens still running around with our heads cut off. Will find out in time, I suppose.

I know there are counter-arguments to my cynical conclusions. The one by this guy Kirkpatrick in the New York Times the other day, for example, actually argues money does not equal influence.

Until I get more information about the research he cites, it's going to be hard putting that in my mouth, much less swallowing it.

And then there is the ACLU. What's that all about? At least they've got the courtesy of being in a tizzy over their decision to follow Kennedy's reasoning.

OK, so back to switching our focus from the death to the illness that did us in.

There must be another reason for Kennedy’s decision. I know Judge Kennedy has a good record, and there is something not quite right about my conclusion that he would cancel it all out by being stupid about the First Amendment. Ditto the ACLU. Stupid can’t be it.

For now I’m going with the belief he knows this is bad law but he believed he had to make it anyway.

If you ever studied ethics, you will no doubt remember the Lawrence Kohlberg argument that the highest ethical value is loyalty to principle (above all other loyalties to self, to family and group affiliations), and society enshrines our highest principles in the law. The law becomes a summation of all other social values.

Kohlberg’s line of principled thinking leaves open the possibility of bad law. It’s a fundamental enlightenment way of thinking, one in which each individual has to determine for himself or herself whether the law is true to our highest principles.

Some people are strict followers of Kant’s “deontological” reasoning. Lying is wrong. If you’re hiding somebody running from a killer and that killer comes to the door and asks you if he’s there, you can’t lie, because of the principle lying is wrong.

Others evolve complex ways of modifying principles with other general principles. It’s wrong to take a life, except when you're defending your life or another’s life, for example. Because of the principle that life is of greater value than truth. (One can be just as principled and argue the other way around, of course.)

All my life I’ve crossed the street against the light if no cars were coming. I got in trouble for doing that in Austria one time and for the longest time decided I had found the explanation for why Hitler came from Austria.

My principle is one follows the spirit of the law, and not the law. To do otherwise is to be a fundamentalist. And one disobeys the law when it is an ass.

Is that what’s going on here? Am I seeing this claim to be defending the First Amendment a defence of the Law as an Ass? Is Kennedy’s view a “lesser evil” argument? Or does he really believe that money doesn’t corrupt (and that magnificent amounts of money don’t corrupt magnificently), and that he’s not flushing American democracy down the drain?

A friend asked me recently whether I wasn’t worrying too much about the Supreme Court failing to endorse the cancellation of Prop. 8, if the Good Guys win and Judge Walker decides Prop. 8 is unconstitutional and it goes to the Supreme Court? “Don’t they have to decide on the basis of the law?”

Yes, of course they do. But judges get their jobs because they are assumed to be good at deciding when to apply some laws over others, and some legal principles over others. Did the conservatives decide here on the basis of the law when that law contradicts common sense? Is common sense wrong here?

Ginsberg, Breyer, Sotomayor and Stevens went the other way, remember. When intelligent (and one assumes conscientious) people disagree on fundamentals, we go beyond the issue of applying the law as one sees it. We illustrate the fact that we’re all fallible and limited human beings. And that the men and women we put on the Supreme Court can make some devastatingly wrong decisions. And when there is a five to four split, there is strong reason to think we may be facing a decision that can hurt us badly.

There is one more possibility. Perhaps the final decision came down the way it did because of the way the case was argued. You’d have to read the transcript of the trial and get the lawyers involved to tell you whether that was the case.

The time I spent on In Re Marriage Cases taught me that going to court requires a “When in Rome…” attitude. When in court, you jolly well follow the practices of the legal culture. Not just the rules. The practices. You look good. You wear the suit, you get articulate spokespeople. You dot your i’s and cross your t’s the way the arbiters of legal culture do it. Or you lose.

The real reason I’m so down on this decision, as anybody who knows me can tell you, is that the conservative victory and the display of animus I sense in the decision for the little guy does not bode well for victory in the current Prop. 8 trial now making its way to the Supreme Court.

But we’re hoping against hope. And we’re dotting the i’s and crossing the t’s.

I say “we.” I mean the angels on our side running the show. I’m not at the trial itself, (because I can’t stand for hours waiting to get in anymore) or even watching it from home, because the Supremes shut down the possibility of watching it on YouTube or direct TV. But I am reading the transcripts with great interest and cheering and booing in the privacy of my own four walls.

It’s an uphill climb. The world has come to feel very hostile indeed.

But there are those angels, those lights in the darkness, those ports in the storm.

If you want to see one at work, here’s my currently very favorite lesbian lady, hands down, Jessica the Legal Eagle, at work crossing t’s and dotting I’s.

Keep the faith.