The Long View 2005-07-04: Supreme Invalidations; Churchill
The mention of Churchill myths in this post sent me to look and make sure that Winston Churchill's short story, "The Dream", was in fact real. I see no mention of it on the myths page. Whew.
Supreme Invalidations; Churchill
Supreme Court Justice Sandra Day O'Connor has played an almost uniquely important role in the evolution of the Court. Any justice can make the Court contemptible to its enemies; she made it contemptible to its friends.
During her long tenure, O'Connor treated cases dealing with fundamental principles of constitutional jurisprudence as if they were disputes before a commercial arbitrator. Her famous swing-vote opinions give a little to one side, a little to the other, always refusing to be swayed by mere consistency: this at the one point in the judiciary where every ruling is supposed to have some systemic significance. Decisions in the O'Connor style are not law, because they turn on tiny matters of fact, and they depend on majorities with no claim to be anything more than political coalitions. The judges on the lower courts stopped expecting the Court to make sense, at least in certain areas, some time ago. Law professors now treat the Court like a retarded ward.
Even Justice O'Connor's resignation was in character. She did not actually resign: she promised to resign once a successor is chosen. Maybe if the nomination fight goes on long enough, she will finally have to issue a real resignation. The irony is that whoever does succeed her will inherit a place in an institution that Justice O'Connor herself has wounded, perhaps fatally. When she arrived on the Court, it still had something of the glow of legitimacy it had grained from Brown v. The Board of Education, the case that made the Court popular among elites for the first time in a very long while. As she leaves it, the Court has become a dangerous anachronism: it continues to deploy a power of judicial review that was predicated on textual and historical understanding of the Constitution that the Court, and indeed the legal academy, have largely repudiated. The Court is clearly fated for some test of strength with the political branches of government. It will lose.
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One should note that the Court might come to grief over some decision that is not a systemic outrage. The recent eminent domain case, Kelo v. New London, which held that governments may take property from private parties, with adequate compensation, and transfer it to other private parties, has generated a remarkable degree of public hostility. To me, it seemed that the case was wrongly decided, but unlike the Casey decision, or the dueling decisions about the Ten Commandments the Court just issued, it was not the kind of mistake that undermines the law as such. Still, the Court's behavior in other areas has left it vulnerable.
Of course, things could be worse, as we see in China:
Land prices in Guangdong, the shop floor of China's booming export-oriented industry, have sky-rocketed in the past two decades as thousands of factories have sprung up to take advantage of the region's cheap labor resources.
Farmer's protests are becoming increasingly frequent in China, with most of the unrest stemming to heavy-handed government land requisition polices or the abuse of power by officials.
This is not going to happen in the US, but the Court has found a way to annoy a whole new class of people.
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Here is a minor mystery that I wonder whether readers of this blog can help me with.
I am a long-time subscriber to The National Interest, the foreign-policy quarterly published by the Nixon Center. Imagine my surprise, if not quite my shock, to discover in the Summer issue that John O'Sullivan had been replaced as Editor by former Executive Editor, Nikolas Gvosdev. O'Sullivan had edited National Review for many years. He had taken charge of The National Interest only recently. The notice of Gvosdev's appointment in the Summer issue does not mention O'Sullivan, and does not thank him. The latter is also true of the online notice at the Nixon Center site.
I have nothing against Gvosdev (with whom I think I corresponded once or twice). The new issue does have a be-nice-to-Putin piece, and another that endorses a de facto alliance with India, the USSR's non-aligned ally, but these views are not new to the journal.
So, does anyone know what is happening?
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Speaking of mysterious disappearances from public view, I find that I have been ontologically invalidated by evil robots. In recent days, all my content pages have disappeared from the Google index. A search for the Long View, for instance, will not find this blog. The top page of my site will still turn up in a search for "John Reilly," but only after a link to an obscure photographer. Searches for books I have reviewed no longer generate results for my reviews on this site, even those reviews that have been the first result for certain items for years.
I am inclined to blame RealPlayer for this, but then I always am.
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Before I became an unperson, The Churchill Centre emailed to ask to quote something I wrote about an allusion that Dan Brown made in Angels and Demons to Winston Churchill being a Roman Catholic. He wasn't, but his book has apparently started an urban legend to that effect, which the Centre (not "Center," partner) has been trying to correct.
The website merits browsing. There is a whole section devoted to Churchill Myths. Some of those myths I think are defensible, but it is instructive to find that facts I thought were certain are in fact controversial. And of course, the Centre has lots of other good stuff, including appraisals of the principal biographies. Their print journal looks like a history-buff's dream.
Happy Fourth!
Copyright © 2005 by John J. Reilly
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