STARE DECISIS, SHMARE DECISIS : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 2

Yesterday I wrote to explain how the Supreme Court erred in its recent decision granting corporations unlimited freedom to make "independent expenditures" that advocate for Federal election candidates: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). I confined my analysis to the assertion that Congress had good reason to restrict corporations' ability to distort public debate by buying up all the airtime around elections. See, e.g., 2 U.S.C. § 441(b). I noted that according full First Amendment protection to corporations makes it difficult for individuals to voice their First Amendment rights. I also lamented the Court's decision to overrule an earlier case that concluded the same things: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

Today I continue my analysis on a new point: The Court's utterly hypocritical "commitment" to the legal doctrine "stare decisis." In my view, the Court overrules prior cases when its membership changes, not because monumental social changes render prior decisions "unworkable" or "anachronistic." Citizens United affirms my cynicism on this issue: The fact that both men (Republicans) who voted against Austin in 1990 now vote to overrule it in 2010 says it clearly enough. This is not about policy. It is about politics.

Stare decisis is a judicial custom in common law countries like Great Britain and the United States. In Latin, it means "stand by the decision." Its technical legal meaning does not differ much. It admonishes judges to decide cases according to principles announced in similar past cases. When an older case provides an answer to a question, stare decisis obligates judges to provide the same answer in a case raising the same question. In practice, stare decisis reinforces respect for the judicial system because it informs citizens how judges will rule in particular circumstances. It also reinforces respect for the so-called "rule of law" in society: The idea that power flows from neutral legal principles, not men's individual caprice.

Yet everyone agrees that stare decisis is not the right policy in every circumstance. It makes no sense to follow ancient cases to resolve modern dilemmas. After all, if judges strictly observed stare decisis in every case, we would still live under cases like Plessy v. Ferguson, 163 U.S. 537 (1896), the infamous decision that permitted legal racial segregation in 1896. Everyone knows that Brown v. Board of Education, 347 U.S. 483 (1954), overruled Plessy in 1954. The Supreme Court refused to follow stare decisis in that case; and for good reason. Plessy did not make sense any more. It could not be reconciled with constitutional liberty and equality principles. And society had changed in fundamental ways between 1896 and 1954. Those considerations all warranted abandoning stare decisis to overrule the past decision: By 1954, Plessy had degenerated into a pernicious historical "anachronism."

But the Court wanders into extremely dangerous territory when it overrules cases on less compelling grounds. Stare decisis is the rule, not the exception. And when the Supreme Court overrules cases every few years simply because its membership changes, it inflicts the damage that stare decisis is intended to avoid: The cynical public perception that the Court is not committed to law and constitutional principle, but rather to politics and raw power.

Politics and raw power certainly won the day in Citizens United. I have long been cynical about the Supreme Court and its increasingly mordant, political tone. I have long known that its current conservative majority will not "stand by decisions" it does not like. Yet it will certainly "stand by decisions" that match its political colors. That is why it does not surprise me that it lightly overruled Austin on the corporate election funding question, even though people do not view that question much differently today than they did in 1990. If anything, the reasons that justified Austin's hostility toward corporate political power are more compelling today than they were then.

Justice Kennedy knows this all too well. After all, none other than Justice Kennedy sang a sweeping ode to stare decisis just eighteen years ago in the case that saved abortion rights: Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). It was Justice Kennedy who signed on to this formula for stare decisis: "[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case." Id. at 854-855. Sounds like he takes stare decisis pretty seriously, doesn't it?

You have no idea how seriously. Justice Kennedy even approved four detailed factors to determine whether it would "undermine the rule of law" to overrule a prior constitutional case: "[W]e may ask whether (1) the rule has proved intolerable simply in defying practical workability, whether (2) the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation, whether (3) related principles of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine, or whether (4) facts have so changed or come to be seen so differently, as to have robbed the old rule of significant application or justification." Casey, 505 U.S. 833, 855 (enumeration and emphasis added).

In Casey, the Court spent many painstaking pages applying the four stare decisis factors. Justice Kennedy joined the analysis in full. He thought it would "undermine the rule of law" to overrule Roe v. Wade, 410 U.S. 110 (1973), just nineteen years after the Court decided it. In sum, Justice Kennedy doggedly defended stare decisis in Casey. He voted to "stand by" the decision.

But where was that doggedness in Citizens United? And what happened to the delicate, detailed stare decisis factors that guided Justice Kennedy's analysis in Casey? They are nowhere to be found. Rather, Justice Kennedy employs a much more nebulous stare decisis test in Citizens United: "Beyond workability, the relevant factors in deciding whether to adhere to the principle of stare decisis include the antiquity of the precedent, the reliance interests at stake, and of course whether the decision was well reasoned." Citizens United, 558 U.S. __ (slip op. at 47)(emphasis added).

What the hell does "well reasoned" mean? What possible objective guidance does that factor provide? It is no surprise that the Court in Casey did not employ a "well reasoned" test in deciding whether to overrule Roe v. Wade. If it had, it would have merely invited the Justices to import their own political sensibilities to determine whether to overrule it. Yet that is Justice Kennedy's test in deciding whether to overrule a 20-year-old precedent about the integrity of American democracy. And with a standard like "well reasoned," you know how it came out.

I find it significant that Justice Kennedy changed his own standards to overrule Austin. After all, if he had applied the painstaking stare decisis factors he endorsed in Casey, he would not have reached the same conclusion. In Austin, the Court held that restrictions on corporate "independent expenditures" advocating Federal candidates were justified in order to curb "corruption and the appearance of corruption," as well as to curtail the disproportionate influence that "immense aggregations of wealth" wield upon the American political process. Austin, 494 U.S. 659-660.

Under the Casey standard for stare decisis, I do not see how this rule has become "unworkable." For generations now, corporations have learned to cope with campaign financing restrictions. They know they have to create "political action committees" in order to advertise for candidates they like. This satisfies Casey's "practical workability" factor.

Second, the American public has placed reliance on Austin's rule. Americans understand that corporations project enormous power in government; and most Americans rightly worry that corporations' financial advantages grant them unfair political leverage. Congress' corporate campaign funding restrictions assured the American people that the law acts to "prevent corruption" in the political process and to curtail the "corrosive" effects of "immense aggregations of wealth" on elections. In this sense, Austin's rule satisfies Casey's "reliance" factor.

Third, the law has not substantially changed on the corporate political speech question since 1990. Not much can happen in constitutional law over such a short period. Constitutional developments take decades. Historically, they coincide with social upheaval. Social changes in American society rewrote the law when the Court overruled Plessy v. Ferguson in 1954. Sixty years, two world wars, a Depression and an atomic bomb had intervened to completely change the way Americans viewed the world. Against that backdrop, it is not surprising that the Court changed the law to keep up.

It is facetious to argue that such monumental social and legal changes have occurred in American society since 1990. In fact, Americans expect government to act against corporate overreaching. By overruling Austin's rule on this point, the Court completely ignores Casey's third factor concerning "fundamental legal change." That is why Justice Kennedy did not even mention this factor in his opinion. See Citizens United, 558 U.S. __(2010)(slip op. at 47).

Fourth, all the facts that supported Austin remain as true today as they did in 1990. Austin posited that restrictions on corporate speech were necessary to prevent corruption and unfairness in the American political process engendered by "massive aggregations of corporate wealth." Those facts formed the basis for the decision. Congress proceeded on those facts when it enacted the corporate campaign finance law.

If anything, those facts are even more true today. There is a rampant public perception that corporate wealth skews political transparency. Cynicism dominates rhetoric about corporate interference in politics. Austin fulfilled Casey's fourth factor on this point: Facts about corporate political spending have not "so changed or become so different as to have robbed [Austin's] rule of significant application or justification." Casey, 505 U.S. 833, 855. Put succinctly, those facts have not changed at all.

Again, it is hardly surprising that Justice Kennedy did not list the "factual change" factor in his Citizens United analysis. Instead, he merely invents a new standard: Whether the prior case was "well reasoned." See Citizens United, 558 U.S. __(2010)(slip op. 47). After all, if he had applied his own test from 1992, he could not in good faith have argued that "facts about corporate influence on politics" have significantly changed in twenty years. So he just ignored what he said in 1992 and made up something else.

See how easy it is to be a Supreme Court justice? You don't even have to stick to what you said before. You can just make things up as you go--as long as you get five votes on it.

But this is all very sad. After all, stare decisis exists to preserve public faith in our Judiciary. If the public sees--as it must now--that the Court willingly discards recent precedent simply because Republicans have more seats than Democrats, it will conclude that the Court is no better than Congress. Yet the Court is supposed to be our "independent branch," an erudite institution that rules on lasting constitutional principle, not casual politics. When the Court coarsely disregards recent precedent--especially on explosive political issues like election control--it sullies itself in ways that are difficult to repair. When the Court acts like this, it invites the same dismissive cynicism that the public usually reserves for elected officials. Principle means nothing. The Court just devolves into another political battleground.

And shame on Justice Kennedy. His hypocrisy has reached epic levels. He does not even apply his own lofty rhetoric about stare decisis. Rather, he abandons it the moment he encounters a case with which he "disagrees." He dissented in Austin twenty years ago. Then he joined an opinion that passionately defended stare decisis two years later. On that basis, one might think he would think twice about lightly overruling recent cases. But instead he overruled Austin without even using the grandiose stare decisis test he so forcefully advocated in Casey. This time, he did not even spend three pages dismissing stare decisis.

He really must not have liked Austin.

Apparently, our Constitution now functions according to a new test: Whether Justice Kennedy likes a case. Thankfully for him, he has four guys who will stand with him in most situations. And all you need is five.

CITIZENS UNITED v. FEC : WHY THE SUPREME COURT'S RECENT CORPORATE ELECTION SPENDING CASE IS ALL WRONG

AN ESSAY

PART 1

Perhaps against my better judgment, I passed several hours this weekend working through the Supreme Court's recent campaign spending case: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(slip op.). In brief, the case invalidates a Congressional Act that restricts corporations from making "independent expenditures" or issuing "electioneering communications" that expressly "advocate the election or defeat of a particular Federal candidate" within 30 days of a Federal election. 2 U.S.C. §§ 441(b), 434(f)(3)(A). The Court said that the Act violated "all corporations' right to political speech" under the First Amendment. In the process, the Court overruled a 20-year old precedent that upheld the same law on the State level: Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990).

I reacted with surprise when I learned what the Court had done. After all, it made perfect sense to me why Congress would want to restrict corporations' ability to spend money advocating particular Federal candidates: To prevent massive, wealthy businesses from deluging the public with their views, foreclosing fair debate in an election. Money buys influence. Even if corporations do not use money to literally "buy off" a candidate, they can easily use it to buy up all the airtime and essentially tilt the playing field to favor candidates they like--namely, guys who support corporations and their agendas.

In 1990, the Supreme Court said as much. In Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), the Court--speaking through a 6-3 majority--concluded that restrictions on corporate "independent expenditures" during elections did not violate the First Amendment. True, such restrictions impacted corporations' "freedom to speak." But the Court found the State's interest in preventing "the corrosive and distorting effects of immense aggregations of wealth that are accumulated with the help of the corporate form" justified restrictions on corporate political speech. Id. at 660. The Court further reasoned that a State could restrict corporate spending on elections in order to curb "corruption or the appearance of corruption." Id. at 659.

In other words, the Court recognized in 1990 that corporations hold disproportionate political influence in America because they have so much more money than individual voters. That was true 20 years ago. It is even more true today. Corporations are getting bigger and bigger. Traditional competitors merge with each other. Their treasuries grow. And they can use that money to dominate the airwaves before elections in ways that individuals cannot.

But now the Court overrules Austin. Writing for the new conservative majority, Justice Anthony Kennedy called Austin "poorly reasoned," even though six justices voted for it just 20 years ago. So I guess that means a case is "poorly reasoned" when it tells the truth about corporations. It is no accident that Kennedy did not vote for Austin back in 1990. Today he gets his revenge, thanks in large part to right-wing help from Bush appointees Clarence Thomas, John G. Roberts and Samuel A. Alito. Those guys weren't around in 1990. Now they're calling the constitutional shots: They think Austin was "poorly reasoned," so they overruled it.

Why did they think Austin was "poorly reasoned?" After all, doesn't it seem obvious that Congress should take steps to prevent massive corporations from dominating news cycles at election time? I think so. But I'm not on the Supreme Court.

Much to my amazement, the conservatives actually phrase the debate in "liberty" terms. They think that corporations are exactly the same as private individuals when it comes to First Amendment rights. Applying that legal fiction, they think that corporations--like individual guys on soapboxes--have the right to unlimited free speech. And they are outraged that "poor little corporations" might face criminal prosecution under the law if they spend money supporting a Federal candidate before an election.

To be clear, the Federal law in this case does not bar corporations from spending money on elections. It merely requires them to set up separate entities for political purposes--so-called "Political Action Committees" (PACs). If a corporation wants to spend money advocating for a candidate, it has to spend through the PAC, and the PAC must report its funding sources. This allows the public to see who is paying for the corporate messages. PACs must also keep a treasurer and records. Yes, corporations have to endure some bureaucracy before exercising their First Amendment rights under the law. But it is not as if they cannot speak: They must merely follow a few more administrative steps than private individuals.

Yet the conservatives scream bloody murder about these administrative steps. How unjust and unfair, they say, that corporations must form new entities and pay some paperwork expenses in order to influence Federal elections! Justice Kennedy paints a doomsday scenario in which he claims that "poor little corporations" cannot afford to comply with these "administrative steps" prior to speaking on an election. He says nothing about the mammoth corporations that have the time and resources to comply with the law. No, it's all about the "little corporations--" the poor, wronged little corporations and small family businesses.

In truth, it is extremely easy for small businesses to circumvent the law here. Assuming that small businesses even have the capital needed to advertise for major Federal elections, they could avoid problems with the law merely by creating a PAC or by speaking as individuals. The law only applies to corporations, so a "little" corporation could sidestep it by refraining from speaking as a corporation. If a "little" corporation only has two members, they could speak as individuals "with connections to small business." They do not need a PAC. They still have their individual First Amendment rights. When the law involves fictions like "corporate people," it is easy to be imaginative in thwarting those fictions.

In this light, it is foolish for the conservatives to crusade for the "poor, wronged little corporations." By standing up for the "little corporations" in Citizens United, they actually abolished restrictions on the big corporations--and they were the ones who caused the problem in the first place. They threw the baby out with the bathwater. But that was probably what they intended all along.

And what glib reasoning the Court used to reach its corporate-friendly conclusions. While I might find it obvious that "immense aggregations of corporate wealth" have a "corrosive and distorting influence" on Federal elections, the Court resolved that quandary easily enough. On this point, Justice Kennedy merely says: "We conclude that independent expenditures made by corporations do not give rise to corruption or the appearance of corruption." Citizens United, 558 U.S. __ (2010)(slip. op. at p. 42).

Oh, all right. I'll just take your word for it. When I see a corporation funneling $140 million to advocate a Republican candidate for Senate, I won't assume any corruption. Corporations, after all, are selfless and would never do anything underhanded.

Let us even imagine that corruption--or the appearance of corruption--does not flow from corporate expenditures on behalf of a candidate. Even then, the fact that a corporation spends massive amounts to elect a corporate-friendly candidate creates popular perception that the corporation "bought" the candidate.

But Justice Kennedy resolves this issue easily enough: "The appearance of influence or access, furthermore, will not cause the electorate to lose faith in our democracy." Citizens United, 558 U.S. __(2010)(slip op. at 44).

Of course not, Justice Kennedy. How could I lose faith in our democracy when major corporations outspend their ideological opponents by millions to get pro-business Senators, Representatives and Presidents elected? How could I lose faith in our democracy when major corporations buy up all the airtime to get their guys in office? After all, I have to respect corporations' First Amendment rights, too, don't I?

According to Justice Kennedy, indeed I do--even if respecting a corporation's First Amendment rights makes it almost impossible to effectively exercise my own.

At this point, we begin to see the real problem with the conservatives' philosophy about corporate free speech rights. After all, when a powerful person--or a powerful group--exercises his free speech rights, he makes it more difficult for less powerful individuals to voice theirs. It is elementary that money translates into political influence. People with more money can speak more loudly on issues than those with less. By definition, corporations have far more money than even powerful private individuals.

Under this reasoning, it is easy to see how corporations can drown out debate simply by exercising their First Amendment rights. They can overwhelm private opposition by spending massive sums on ubiquitous advertising. That is the "corrosive and distorting influence" that the Court described in Austin. And corporate power to exert "corrosive and distorting influence" is the reason why Congress imposed limitations on the their ability to exercise their speech rights in the first place. Put simply, when corporations exercise their speech rights, they make it progressively more difficult for individuals to exercise theirs.

That is the real meaning of the conservative "corporate liberty" argument: By freeing corporations to speak, everyone else has to shut up and listen to them. In my view, that is not what the First Amendment is about. The First Amendment is about individual rights, not corporate rights. If corporate free speech rights make it difficult for individual free speech rights to survive, I have little problem regulating corporate free speech rights.

But Justice Kennedy does not acknowledge any of this. He does not see the obvious--and disturbing--practical implications behind his reasoning. Rather, he seems to dwell in some ethereal place in which corporate liberty is the same as individual liberty. As such, he sees the corporation as the victim. He even ascribes wisdom to corporations, as if corporate speech could actually enlighten the population: "Corporations do not have monolithic views. On certain topics, they may possess valuable expertise, leaving them best equipped to point out errors and fallacies in speech of all sorts, including the speech of candidates and elected officials." Citizens United, 558 U.S. __(2010)(slip. op. at 48-49).

Contrary to this rhetoric, corporations do have monolithic views on many issues. When it comes to profitability and shareholder enrichment, all corporations are the same: They want to make as much money as possible. That is a "monolithic view." In that sense, corporations will always say the same thing: Namely, whatever will benefit the corporation in the circumstances. In political speech, that means a corporation will always say things to support candidates who will make them richer. Given that, it is ridiculous to think that corporations will somehow "enlighten the public" with their "diverse viewpoints" on life. Corporate political speech is all the same: It is calculated to get people elected who will make them richer. End of story, Justice Kennedy.

In sum, this case disgusts me. I have other objections about it that I will raise in a later post. But for now, it is enough for me to say that the conservatives' view about "corporate liberty" eviscerates the First Amendment's focus on individual expression. Congress understood that corporations had to cede some expressive liberty in order to protect everyone else's relative ability to engage in political speech. Now that the Court has abolished those restrictions, it has opened the door to even greater corporate control over government.

Corporate control over government was already bad before this case. Now it will get even worse. As I suggested in a satire a while back, we might as well just rename the country the "United States of America, Inc." because that's exactly where we're headed. Or maybe we're already there.

OUR SHAMELESS, DISGUSTING SUPREME COURT

OESTERHOUDT STRIKES

Today I am reading the Supreme Court's decision about corporate funding in Federal election campaigns: Citizens United v. Federal Election Commission, 558 U.S. __(2010)(No. 08-205 slip op.). I have already heard horror stories about this case. But I am always careful to judge Supreme Court cases without actually reading them. The press usually distorts what Supreme Court cases actually say. Sometimes they exaggerate. Other times they leave out disturbing (or encouraging) nuances. If my legal education taught me anything, it was always to read a text carefully before saying anything about it. And you really have to do that in order to understand a Supreme Court case.

That is not to say that magic lies within Supreme Court cases. Far from it. In most cases, Supreme Court decisions represent nothing more than gross political prejudice masquerading as erudite legal science. Justices make up their minds about the political issues at stake in a constitutional question. Then they instruct their law clerks to dress up their prejudices in neat legal rhetoric for the presses. Principle rarely plays a role in this process. It's just power and political judgment operating as law.

In law school, I read old Supreme Court cases and marveled at them. In the 1950s and 1960s, the Court actually seemed to want to find justice in American law. I even dreamed about becoming a justice myself: It seemed that they could actually do some good in the world. Men like William J. Brennan, Jr., Thurgood Marshall and William O. Douglas became my intellectual heroes because they spoke out against entrenched American injustice. And they bent positive law in order to achieve justice: They knew that positive law could legally create injustice just as easily as a mob could inflict injustice without law.

But those days are long, long gone. Supreme Court justices today do not fight the good fight. They are tired, uninspiring, lukewarm political actionaries who do less to enlarge individual rights than to stamp out what few liberties Americans still have. Worse, the current five-member conservative alliance is far more concerned with corporate freedom than individual rights. Under Chief Justice John G. Roberts, Jr., the Constitution stands for corporations, not people.

That is not inspiring. It is just disgusting.

It is doubly disgusting because justices today actually reference Supreme Court precedent enlarging individual freedom to defend massive corporations. I have only made it through the first 12 pages in Citizens United v. Federal Election Commission, and already Justice Kennedy cited two cases in which Chief Justice Roberts referenced cases from the liberal 1960s to argue that "corporations need freedom, too." This is like the KKK using Brown v. Board of Education, 347 U.S. 483 (1954) to argue that "murderous white bigots are people, too." This sheer dishonesty--and ignorant contempt for American history--makes my jaw drop.

First, Chief Justice Roberts cited New York Times v. Sullivan, 376 U.S. 254 (1964). In that case, arch-liberal justice William J. Brennan, Jr., concluded that newspapers could not be sued for libel when publishing stories about "public figures" and "matters of public concern." The case stands as a testament to individual free speech rights. It established a principle that the people can speak freely about the powerful without substantial legal worry under the First Amendment. It reinforced the idea that the First Amendment is the people's check on the powerful: They have a right to speak no matter how exulted their target.

But now comes Chief Justice Roberts. He rips Sullivan's hopeful constitutional language from its context to support a conclusion that the First Amendment "must give the benefit of any doubt to protecting rather than stifling speech." Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 469 (2007)(opinion of Roberts, C.J.).

Justice Brennan wrote those words to promote public speech by individuals against powerful interests. They made sense in that context. But now Chief Justice Roberts shamelessly co-opts them to promote corporate speech designed to influence elections and ram corporate messages down people's throats. This is the ultimate misuse of Sullivan. Justice Brennan would have been horrified to see his language warped for this purpose.

Chief Justice Roberts does not end here. He uses another classic liberal First Amendment standard from the 1960s to support neoconservative corporate license in the 2010s: NAACP v. Button, 371 U.S. 415 (1963). In that case, the Court struck down segregationist Virginia laws that banned black political agitators from promoting civil rights. Justice Brennan--the liberal champion--again wrote the opinion, remarking: "First Amendment freedoms need breathing room to survive." Id. at 433.

Chief Justice Roberts used the same sentence to defend the corporate freedom to ram political advertisements down people's throats. Federal Election Commission v. Wisconsin Right to Life, Inc., 551 U.S. 449, 468-469 (2007).

This is so outrageous it is almost satirical. To even imagine that a Republican Chief Justice would steal language from a symbolically liberal free speech case to aggrandize corporate power is so shocking that it prompts disbelieving laughter. But Chief Justice Roberts did exactly that: He used a 1960s civil rights case about the First Amendment's importance in the individual's arsenal against injustice to bolster a corporation's power to maintain its strength over individuals.

That is almost as inappropriate as prying random words from a Hitler speech to commend Jewish freedom.

Sadly, this is how the Supreme Court operates these days. It has no respect for principle, no respect for American history and no respect for consensus. It ignores the fact that the Constitution should provide guiding unity on major principles, not an excuse for discord. On hot-button issues, its members dig in their heels and act like children--or Congressmen. They cannot agree on anything except their own base prejudices, which they enshroud in law as soon as they get a fifth vote--just like Congressmen.

Maybe this is just how any human being would behave in the circumstances. But these are Supreme Court justices; we should hold them to a higher standard. They say they are not politicians. They say they rule "on the law and nothing else."

But I see through the charade. It's all nonsense. It's all just crude power play. And it's disgusting because it's so dishonest. If a Chief Justice can corrupt hopeful language from 1960s civil rights cases to enlarge corporate power today, it is obvious that the Supreme Court has no shame at all. Just like any political group, it will use whatever means at its disposal to achieve particular results.

Yet the Constitution is more concerned with means than ends. The People adopted the Constitution because they demanded respect for individual rights against the government and larger powers. While corporations may not have been as powerful in 1787 as they are today, it is indisputable that they now wield enormous influence over American lives. Corporations can dominate debate about public issues in a way the Framers could scarcely have imagined. That is dangerous for individual First Amendment rights.

Apparently, this Supreme Court does not understand that. Now I'm afraid to continue reading the case. Who knows what terrors lurk in its later pages.

On the other hand, I might get a few guffaws along the way--and more ideas for satire.

I can't write the shit Supreme Court justices come up with.

THE SOTOMAYOR CONFIRMATION : SHOULD WE EXPECT OUR JUDGES TO BE COWARDS?

AN ESSAY

I have little doubt that the Senate will confirm Judge Sonia Sotomayor as our next Supreme Court justice. I make this judgment on purely political grounds. After all, the power to confirm “Judges of the supreme court” lies with the Senate (see U.S. Const., Art. II § 2, cl. 2). And if history is any guide, it shows that the Senate party in power wins the confirmation fights. When the Republicans controlled the Senate, they easily overcame Democratic resistance to appoint fellow Republicans Chief Justice John G. Roberts (78-22) and Justice Samuel A. Alito (58-42). Now, the Democrats control the Senate by a healthy majority. They will similarly endorse their fellow Democrat, Judge Sotomayor. This has little to do with legal ability, conscience, honor or principle. It is all about politics. If you have more votes than the opposition, you win. If you don’t, you lose. If Plato were nominated to the Supreme Court by a Democratic President and the Republicans controlled the Senate, he would not be confirmed.

But of course the Republican minority will carp in this case, just as the Democrats carped when the Republicans controlled the Senate. It will not affect anything. It will just fill the air with bitterness and resentment; this is Washington and we should expect nothing less. Still, I always find it interesting when politicians bluster in vain because it gives me an insight into their values. Despite Judge Sotomayor’s obvious “Supreme Court pedigree” (i.e., she went to a top-tier law school; she got good grades; she clerked for the right federal judge; she served as a lower court judge; she curried enough political favor; she never went to prison or owed excessive debt), Republicans nonetheless will find issues to whine about. It is as predictable as the rain.

In a New York Times article today (Sotomayor’s Sharp Tongue Raises Issues of Temperament, May 29, 2009), I read that the Republicans find fault with Judge Sotomayor’s “sharp tongue.” According to several lawyers who practice before her on the Second Circuit Court of Appeals in New York, Judge Sotomayor is “occasionally combative,” “difficult” and “nasty” when she hears an argument she does not like. Some even said she is a “terror on the bench” who “behaves in an out-of-control manner.” This, in sum, has led Republican critics to oppose her “judicial temperament” rather than her intellectual qualifications. In other words, she may be smart, but she is not sufficiently polite to be a Supreme Court justice.

I actually like the fact that Judge Sotomayor volunteers her own opinions from the bench, especially when she criticizes a preposterous argument. I turned my back on the law because it is too technical. I reject its formalism, its inequalities and its vapid, hypocritical rhetoric. I reject it because it grandly claims to serve justice, when it generally only serves power. I reject it because it espouses principle, yet denies it to anyone who does not worship “procedure.” I reject it because it advances order over right, even when right is apparent. I generally despise judges because they buy fully into these hypocrisies to support a fundamentally unfair system. But sometimes judges surprise me. When they actually voice respect for justice and right, they redeem themselves. I even appreciate them when they dare to speak their minds about legal issues rather than merely reference arcane procedural rules to avoid the obvious, burning question. See, e.g., F.C.C. v. Fox Television Stations, Inc., Supreme Court Docket No. 07-582 (decided April 28, 2009). Judge Sotomayor does this more often than the Republicans like. This makes her an “activist” and “out of control.” As soon as a judge starts talking about justice, in other words, she has a “problem with temperament.”

What caused the Republicans to question Judge Sotomayor’s “manner on the bench?” They point particularly to her conduct in a recent appellate court oral argument in a case called Arar v. Ashcroft (see video at http://video.google.com/videoplay?docid=1706247655617377220). This is a high-profile case about the Executive’s alleged power to “render” foreign citizens to third-party countries to be tortured for “counterterrorism information.” Mr. Arar is a Canadian citizen who claims he was seized in the United States when transferring to a flight to Canada at an American airport. Arar said there had been a terrible mistake. The agents saw things differently. After a short detention, American agents allegedly sent him to Syria in order to circumvent America’s ban on torture. There, Syrian agents imprisoned him for almost a year and subjected him to various bodily indignities. Finally, they determined he was not a terrorist and sent him back to Canada. Now he sues the American agents who handed him over to Syria, claiming they knew full well he would be tortured there. In response, the United States government denied responsibility and asserted that American courts had no jurisdiction to hear the case because “federal agents” are not liable for “constitutional torts” when “national security and foreign policy” are at issue.

During oral arguments in Arar, Judge Sotomayor questioned the government’s lawyer. She cut him off twice in order to confirm her understanding about the government’s position in the case. She wanted to know whether the United States government truly asserted that American agents face no liability for sending people to be tortured abroad as long as they doctor up some “national security explanation.” This angered Judge Sotomayor for good reason. In essence, the government contended that it was “OK” to render people to countries that allow torture because the Executive has unquestionable “power in foreign relations matters.” Judge Sotomayor did not like that contention. She made her feelings clear that it was an awkward argument to make, especially in a country that professes respect for individual rights and liberties. She did not like the argument that the Executive can “do whatever it wants” simply because it says “national security is at stake.” She thought those sentiments did not sit well with the principles that animate our constitutional system. And because she made her feelings clear, Republicans now call her “sharp-tongued,” “out-of-control” and “nasty.”

Judge Sotomayor won my respect by confronting the government’s lawyer in this case. She was not even disrespectful or “nasty” when making her points. She may have interrupted the lawyer, but she did not insult or humiliate him. That is normal business in American appellate courts. Judges always showcase themselves over the lawyers. The lawyer’s cursory statements simply provide fodder for the judges’ own rhetoric. Judge Sotomayor did the same thing that many Republican judges do every day. But here, she actually took a strong position on an issue that should concern us all: Torture. If a judge does not get passionate about claims that her own government endorses torture, what will spark her interest? Securities fraud? Accounting irregularities? Property disputes? If anything at all arouses a judge’s sense of right and wrong, it should be torture. The United States claims to be a progressive, civilized country that respects rights and laws. Yet torture represents an earlier, not-so-civilized age in which raw, ugly power ruled over principle and reason. America publicly condemns countries that practice torture today. Against this background, if a judge does not fundamentally recoil when confronting allegations that the American government endorses torture, she should be ashamed to call herself a jurist.

This reveals the absurdity in the Republican position. Did they expect Judge Sotomayor to sit inertly by while the government’s attorney tried to justify torture with disingenuous procedural arguments? If they did, what does that say about their values? That torture is “OK” as long as a Republican administration orchestrates it? That “procedure” should win out over “justice?” They would have preferred that Judge Sotomayor said nothing and merely allowed the government’s lawyer to spin his guilty logic. You can even see in the video that the government’s lawyer is uneasy, not just because he is on the hot seat, but because he knows that it is wrong to defend torture. His face contorts. He bites his lip. His eyes dart nervously through the courtroom. When judges confront him about his substantive position, he tiptoes around the real issue and starts talking about procedures and precedents. He cannot bring himself to admit that torture is wrong, yet his demeanor admits it for him. Thus, the contrast between his behavior and his words make him a glaring hypocrite. Only his mechanical legal training prevents him from breaking down altogether. To her credit, Judge Sotomayor showed that she could forgo logic when confronted with fundamental wrong.

She did not sit quietly through this nonsense. No person with a basic sense of justice could have. Yet the Republicans seem to think that speaking out about fundamental injustice makes a judge “out of control.” As soon as a judge departs from vacuous questions about procedure, jurisdiction and statutory authority, she reveals a “poor judicial temperament.” In short, it seems to me that the Republicans want cowardice in a judge. A cowardly judge would allow the Executive to get away with anything. A cowardly judge would resolve a torture case on procedural grounds rather than grapple with fundamental questions of justice. A cowardly judge puts full faith in the “law,” even when the law clearly will not do “right.” A cowardly judge sits by and lets others do the real work later. A daring judge, on the other hand, can at least acknowledge wrong when she sees it and set the country on the right rhetorical path to correct it. I think Judge Sotomayor showed some daring in her exchange with the government’s lawyer in the Arar case.

But in the end, it really comes down to politics. A liberal “daring judge” is a “coward” to conservative eyes, while a conservative “daring judge” is a “coward” to liberal eyes. Here, Judge Sotomayor spoke out about an issue that largely appeals to liberals: The ignominy of torture. Because she spoke out on that issue, liberals label her “daring,” while conservatives call her “out of control.” But if a judge passionately spoke out about an issue dear to conservative hearts, such as “national security,” conservatives would call him “daring,” while liberals would label him “a coward” or “out of control.” Sadly, we see that principle plays nary a role in these judgments. It is simply about who says what, and whether the issue appeals to conservatives or liberals.

Must our judges be cowards? If we adopt conservative rhetoric, judges must be cowards when addressing questions concerning individual rights, dignity and justice. If we adopt liberal rhetoric, judges must be “out-of-control” when addressing questions concerning procedure, unfair power relationships and judicial restraint. If I had to choose, I would prefer a judge to be daring about liberty, dignity, individual rights and justice. Despite all my cynicism and suspicion, I still believe that the Constitution stands for good. I believe that it stands for evolving liberty and gradual improvement in society through advancing principle. I would prefer a judge be passionate about those ideas rather than cowardly and technical. Unfortunately, modern “judicial thought” counsels strongly against “expansive judging” and “unnecessary explications of principle” in court opinions. But why even bother having a Constitution if we do not have daring judges to expand upon the liberties enshrined in it? How do we advance as a society when our own constitutional arbiters take a narrow view on liberty? Should we not expect our jurists to advocate for us, “We the People,” the ones who created the Constitution in the first place? The ones who delegated its authority after the Revolution? If Congress and the President fail us—as I think they did on the torture question in the Bush years—who will speak for us?

I think we should expect our jurists to advocate for us. Judge Sotomayor showed that she at least cares about how our government acts with respect to our rights as citizens in a constitutional system. She recoiled from the suggestion that the Executive can “do whatever it wants” whenever it conjures up a shadowy “national security reason.” In essence, she showed that individuals matter more than the government. That is certainly an advance over Roberts and Alito, who could care less whether government swallows up individuals, or whether innocent people die at the hands of the State. In other words, Judge Sotomayor’s conduct at the Arar argument shows that she cares at least something for justice. In my view, that is an auspicious qualification for serving on the Supreme Court. And among at least four of its current members, it is a qualification sorely lacking.

Having said all this, I am glad I am not a judge. I like thinking for myself, not attempting to shoehorn my beliefs into precedent and prior judgment. Judicial work lends itself to obedience and cowardice far more than it does to daring. After all, judges work with others’ words, not their own. It is hard to be creative when someone else tells you how to paint. I echo Nietzsche on this score. Judicial work is like “dancing in chains.” Menschliches, allzu Menschliches Teil II, Der Wanderer und Sein Schatten Aph. 140 (“For what we call ‘Invention’ [in art] (metric rhyming, for example) is always just another chain that we lay upon ourselves”). Judges constantly imprison themselves in others’ logic and arguments. It is what they do. Yet when some passion escapes the chains, we should embrace it with full hearts.

THE TROUBLE WITH TRADITION IN THE LAW : A REACTION TO MAIRA KALMAN

AN ESSAY

Last week, New York Times columnist Maira Kalman wrote a cartoon-laden editorial entitled “May It Please the Court.” See N.Y. Times, April 23, 2009. In it, she discusses her trip to Washington, D.C., during which she attended oral arguments at the Supreme Court and met Justice Ruth Bader Ginsburg. Later, she discusses “great women” in American legal history, culminating in general praise for lawyers who “seek justice.” To make her point about justice, she references Susan B. Anthony, a freed slave named Sojourner Truth and Eleanor Roosevelt. Although she makes a few obliquely critical remarks about the Supreme Court, she essentially praises it. She reserves special respect for “traditional practices,” such as the clerk in a “dapper morning suit” who told her that “adversaries in the Court are not [enemies],” as well as the Court officer who “gets to slam the gavel and say ‘Oyez, oyez, oyez’” before the session begins. Intriguingly, she also writes that the Court: “[is] friendly. There is a sense of well-being and harmony. No miserable clerks scurrying around. They seem to love it here. Hear, hear!”

Apparently Ms. Kalman has not read many recent Supreme Court opinions. In past essays, I have noted that the United States Supreme Court has fallen away from collegiality. In fact, I find that the Justices spend much less time finding common ground about constitutional principle than they spend lambasting their ideological foes. Last term, for example, Justice Scalia wrote several footnotes in his opinions to specifically call Justice Stevens a moron. He did not use that word, of course, but he personally attacked Stevens for writing what he considered “a bad argument.” Justice Alito and Justice Thomas also pull few punches criticizing their fellow jurists when they disagree. In essence, there are many bad losers on the Supreme Court. No matter what Ms. Kalman saw during her visit, it is not an “intellectually friendly” forum. Worse, it is merely a showcase for Ersatz politics. No Justice rises to the Supreme Court without sponsorship by the President. See U.S. Const. Art. II § 2, cl. 2. And in Washington, no President sponsors you unless you pay your party dues. In that sense, Supreme Court justices, despite their outward erudition and declared commitment to enduring principles over expedient results, are little more than appointed political actionaries in 18th Century robes. They are intellectual stand-ins for their Presidential sponsors: Reagan and Bush appointees are generally conservative and unforgiving; Clinton appointees are generally liberal and forgiving. On the Supreme Court, it is “politics as usual”—along with all the rancor and recrimination you would expect from it. Just read Heller v. District of Columbia, 554 U.S. 290 (2008)(holding that the Second Amendment grants an individual right to carry handguns for self-defense purposes) or Boumediene v. Bush, 553 U.S. ___ (2008)(holding that even non-citizen “enemy combatants” at Guantanamo Bay may petition for habeas corpus review in U.S. Federal Courts) to grasp my point here. Contrary to Ms. Kalman’s perceptions, the Supreme Court is not friendly; it is a battlefield. And these constitutional warriors do not take prisoners.

Ms. Kalman seems awed by “Supreme Court traditions.” She likes the “oyez” ritual that precedes oral arguments. She admires the clerk’s “dapper morning suit” and old-fashioned manner. She marvels at the marble pillars and velvet drapery behind the imposing Justices’ bench. She praises Justice Ginsburg’s “doily collar” that she bought in a Parisian boutique. She even titles her editorial “May it Please the Court,” quoting the mystical shibboleth all lawyers must recite before addressing the Justices.

All these things reflect wooden allegiance to tradition. “Oyez?” Are we on Lexington Green listening to the town crier in 1750? “May it please the Court?” That is an archaic double subjunctive straight from 17th Century English common law discourse. In 17th Century English common law discourse, courts burned women at the stake for killing their husbands and disemboweled men for counterfeiting coin. Yet now it is somehow “quaint” to recite their old-fashioned language? What is it about the law that so inveterately clings to stilted tradition? No other profession professes such love for the past. Its very intellectual power derives from ancient decisions; lawyers win cases by analogizing their client’s situation to centuries-old fact patterns. For example, “products liability law” traces its origins to an English case decided in 1703 involving a poorly-constructed outhouse that overflowed and ruined a neighbor’s grass. Tenant v. Goldwin, 92 E.R. 222, 224 (King’s Bench 1703). In that case, the common law judge fashioned a principle that landowners must ensure that their cattle does not wander off and trample their neighbors’ land, just as they must construct outhouses that do not overflow. Id. at 224. In the centuries that followed, lawyers seeking to hold others liable for “dangerous instrumentalities” all analogized their cases to the “runaway cows” and “poorly-constructed outhouses” from the 1703 case. Now, products liability law implicates jet engines, brake pads and roller coaster ball bearings. But lawyers arguing cases must show that these modern technologies somehow relate to those evil cows from 1703. This is tradition run amok. Lawyers and judges are not creators. If they are inventive at all, they are inventive only in the sense that they cunningly relate modern issues to archaic cases without being utterly facetious.

Tradition carries weight. I cannot really fault Ms. Kalman for feeling awe when she stepped into the Supreme Court. Grand pillars, robes, doily collars, marble facades, 17th Century English subjunctive requests, magic words like “oyez,” dapper morning suits and velvet curtains all combine to make an unmistakably imposing impression. It is nothing like everyday life in 2009. Rather, it is more like stepping before the Wizard of Oz, with smoke and lightning bolts pouring forth from a huge altar, complete with amplified voices speaking a half-unintelligible language replete with incomprehensible technicalities. I have always written that law is sorcery. When combined with tradition, it is even more mystifying. It does not illuminate social issues in an accessible way. To the contrary, it obfuscates the issues with myriad “traditional” rules, customs, usages and procedures that confound rather than enlighten.

In my view, it is all empty show. Tradition is reassuring, but when it degenerates into “blind allegiance to the past,” it becomes absurd and pretentious. Justice Oliver Wendell Holmes understood this. In a Harvard Law Review article published in 1897, he savagely critiqued undue reliance on tradition in legal reasoning: “[It] is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past.” The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897). Sadly, however, very few people can see through tradition. No matter how stilted and inapplicable traditional rules and customs may be, they carry weight. They symbolize power and authority. They have “been around for a long time,” and people trust “staying power.” It is no surprise that the uninitiated feel awed when they confront tradition in the law. It all looks so impressive; it is all so foreign, yet so imposing. That is the law’s strength. It represents the weight of the past, with all its accumulated authority and power. It speaks beyond generations, cowing those who come centuries later. It certainly cowed Ms. Kalman. It even fooled her into thinking that the Supreme Court was “friendly” and that “adversaries” in the Supreme Court are not “enemies.”

To speak broadly, law is tradition. In some sense, it must be. Tradition refers to “the way in which people always behave or think” in certain circumstances. We know tradition because we live with it. We can predict it. We know what tradition dictates at Christmastime, or at Easter, or on Halloween, or at a wedding, or at a birthday party, or during an election. We have experienced all these things in the past; we know what to expect when they happen. By embodying tradition, the law allows citizens to predict behavior and tailor their own conduct to meet traditional expectations. It gives them a way to deal with inevitable disputes in commerce. It also provides them a reliable mechanism to seek compensation when another person wrongs them. When the law criminalizes behavior, it embodies traditional morals concerning “bad conduct.” In that sense, it encourages people to conform to tradition; and it allows them to predict how the law will treat them if they do not. Tradition is simple. If something is traditional, we know what’s coming. It is not profound; it simply embodies common experience. This is precisely what the law does.

Like tradition, the law is unexciting and unprofound. In virtually every case, the law conforms to traditional understandings in most social matters. If a person breaks a contract, the law provides compensation to the wronged party and a penalty to the dishonorable one. If a person intentionally harms his neighbor, the law provides compensation to the victim and penalizes the wrongdoer. If a person kills his neighbor, the State punishes the killer as a murderer. In all these cases, the law reflects traditional moral understandings to meet the situation at hand. It may speak its own, inaccessible language, but the results are intuitively familiar to anyone who lives in the society. In short, the law reflects and embodies traditional social values, no matter the subject. Traditional social values, at least in the United States, are not very exciting or inventive. They simply provide assurance to all citizens that they can live, work, make money and raise families without worrying about being robbed, killed, defrauded, dispossessed or negligently injured. They keep power in place and prevent popular discontent by providing a semblance of “justice for all.” At the same time, the law maintains respect for itself by dressing itself up in traditional garments and awing the population with impressive power displays, just as it awed Ms. Kalman.

I feel sorry for Ms. Kalman. The law blinded her with its magic show. Not only did she buy into its tradition-based rhetoric, but she also failed to see how uninventive it really is. Toward the end of her editorial, she extols Justice Ginsburg, Susan B. Anthony and Sojourner Truth for “fighting for justice their whole lives.” By including these examples in a piece about the Supreme Court, I can only conclude that she believes the law exists to expand justice and vindicate “right.” Again, Ms. Kalman reveals her ignorance of the law. Still, her error is forgivable. After all, even the Supreme Court building bears the words: “Equal Justice Under Law.” Our public institutions all profess to “serve liberty and justice.” Even the Pledge of Allegiance reminds us that our Nation purportedly guarantees “liberty and justice for all.” But in practice, the law stands for something completely different than “natural right” or “true justice.” It stands for traditional social values, and those values necessarily exclude “justice for all.” To be regrettably blunt, commercial success for some means that not all can be successful. The law assures this result. It is “traditional.” It does not aim for justice or abstract virtue, even if justice results in many cases. It aims for prevailing social order and commercial stability. Just look at any Court docket. Most cases involve petty private disputes for money or property. These litigants could care less about justice; they want money damages and profit. In England and America, commercial success always came first. It would be nice if justice always accompanied commercial success, but it is not necessary. After all, when one man succeeds in business, there is always another who fails. The man who fails always believes he has suffered injustice. But the winner believes that justice has been done. Our legal tradition reaffirms Anglo-American society’s dedication to free market success and commercial stability. All other concerns are incidental, including justice.

I wish the law did serve justice. I wish there were more Susan B. Anthonys and Sojourner Truths in the world, especially the legal world. But the fact that these women had to “battle injustice” in the first place reveals that the law does not traditionally advance justice. These women “fought the law.” From their perspective, the law was unjust. From the majority perspective, however, the law represented “traditional social values about women;” women like Susan B. Anthony were “troublemakers.” The law’s fixation on tradition gives crusaders causes to advocate. In this sense, the law does not readily change with the times. It takes fearless zealots to make war on “tradition” and to wring meaningful change in society. The law certainly will not take the first step. During Susan B. Anthony’s time, the law and tradition weighed against her cause, no matter how “abstractly just” it was. Tradition does not favor reformers who fight for justice. Yet without reformers, the law would never change. Reformers always “want justice.” The law never gives it to them, because it blindly follows traditions. In that sense, it is foolish to think that the law “embodies justice.” If it did, there would be no need for reformers; change would come from within. Tradition and reform are mutually exclusive concepts. The law serves tradition. Thus, it can never instigate reform.

Tradition is problematic. I applaud Ms. Kalman for praising women who fought for justice. But fighting for justice necessarily implies a battle against ingrained social tradition. In general, the law embodies and defends those ingrained social traditions. In that light, I must point out that the law does not serve justice. It may provide a cumbersome vehicle for change, but until the change occurs, it ruthlessly suppresses every attempt to alter tradition. Dr. Martin Luther King, Jr., went to jail many times to before achieving a few legal changes favoring African-Americans. He wanted the law to serve justice. To achieve that goal, he knew the law would assert tradition over him. In so doing, he understood that the law was unjust. If it had been just, there would have been no need to reform it. Before Dr. King wrought his changes on the law, the law had only one purpose: To rigorously defend its traditions and the social values enshrined in those traditions.

Not all traditions are “quaint,” like doily collars or morning suits. To the contrary, in many cases they are pernicious, like the racial values against which Dr. King crusaded or the brutal punishments for women who murdered their husbands in 17th Century England. Put simply, the law generally defends traditions without regard to their substance. Justice advances; the law favors the status quo. They do not readily coexist. Before justice prevails through law, there is always a confrontation between old and new, a battle between reform and tradition. There is always a rebel and there is always a State official who seeks to suppress him. The law never rebels; it only suppresses. To that extent, Ms. Kalman should not look to the law as a source for justice. Rather, she should look to individual heroes—like Susan B. Anthony—who fight to change the law and its pernicious traditions. Individuals create, invent, change and reorder the world. The law simply provides a framework for people to make money and to maintain social distinctions.

By serving tradition, the law resists change. Justice evolves more quickly than the law. That is why true justice flows from individuals, not legal institutions. While the law may change over time, it will not change by itself. It needs a good jolt from daring individuals before it alters its old-fashioned, backward-looking ways.

BREAKING CONTRACTS : IT'S ALL ABOUT POWER

AN ESSAY

After the AIG scandal broke last week, I wrote an essay explaining that there is no legal barrier to breaking contracts. Recently, Americans have been horrified to see federal bailout money paying AIG executives whose conduct helped create the economic crisis. This popular outrage, in turn, sparked a debate as to whether the government can abrogate private contracts. Most Americans seem to think that private contracts are inviolable. They seem to think that contracts have a mystical power that makes them immune from State interference. President Obama’s economic adviser, Larry Summers, went so far as to say: “This is a country of laws. The government cannot just abrogate private contracts.”

Yes it can. Government enforces contracts by sovereign grace. If the sovereign decides that a particular contract will be enforced, there is nothing the aggrieved party can do about it within the law. Of course, this would not set a good precedent. After all, people only do business with each other if they know that the law will force the other guy to honor his promise. But this is a policy concern, not a legal one. In essence, the power to enforce contracts stems from pure political might. It has nothing to do with abstractions, principles or sacred vows. And it certainly has nothing to do with whether the United States is a “country of laws.”

In The Prince, Niccolo Machiavelli wrote: “The principal foundations of all states, whether new, old, or mixed, are good laws and good arms… [and]… there cannot be good laws where there are not good arms…[and] where there are good arms, there are bound to be good laws.” The Prince, Chapter 12 at p. 52. Machiavelli’s clear prose reminds us that a “nation of laws” cannot exist without “good arms,” namely, powerful executive authority. Law cannot exist without force, nor can it even come into being without an original coup. In the United States, there would be no Constitution or laws had the colonists not risen up and defeated the British army through “good arms.” Through “good arms,” the United States maintained the essential stability it required to establish “good laws.” Thanks to protection under “good arms,” commercial men could depend on stable laws. They could count on courts to enforce contracts against those who broke their promises. Americans grew accustomed to a “legal State” in which they could dependably rely on courts to enforce private bargains with neutral, reasonable laws.

That remains the case today. Larry Summers did not voice an insane sentiment when he said: “This is a Nation of laws.” Most Americans agree with him. They take pride in the fact that they live in a society in which courts neutrally apply legal principles that technically treat everyone equally. After all, a “Nation of laws” differs from a “Nation of men,” in which a legal rules flow from the wanton caprice of a single individual. In America, we have laws. In theory, the laws apply equally to everyone, and—as the logic goes—that is a good thing.

But these “defenders of the law” forget that their laws would mean nothing without executive power. Courts enjoy power because they can count on the executive to enforce their “principled” decrees. In contract law, they ruminate about abstract ideas like bargain, consideration, benefit, detriment, equality of exchange, restitution, rescission, reformation, mistake, parol evidence and reliance. They even attempt to allot money damages to aggrieved parties according to fixed, “neutral” rules. They then scribble out judgments and force the offending party to pay. If he does not, the court has no institutional power to do anything but write strongly-worded opinions. To enforce its decrees, it must turn to its institutional partner: The Executive. Only the executive has the billy clubs, guns, prisons and handcuffs to browbeat the offending party into paying up. If he does not obey the court, the executive takes away his property or his liberty. To avoid that fate, the offending party does what the court tells him. That is true power: The power to compel. Cf. Kant (“Law is linked to the authority to compel”). Introduction to Legal Doctrine, The Metaphysics of Morals (Einleitung in die Rechtslehre § D, Die Metaphysik der Moral). The executive is powerful because it can directly inflict pain on bodies and take away property. And as Machiavelli knew, nothing compels men more than threatening their property: “[B]ut above all, [a Prince] must abstain from taking the property of others, for men sooner forget the death of their father than the loss of their patrimony.” The Prince, Chapter 17, p. 72.

What good is it to be a “nation of laws” if the laws themselves are stupid or degrading? That was the question Americans asked when they found out that federal bailout money paid multimillion-dollar bonuses to scallywag AIG executives last week. In my view, waving your hands in the air and pontificating about “our Nation of laws” is absurd. Quite simply, the whole rhetoric about the United States as a “nation of laws” is a vacuous talisman. If it is necessary to allow brigands to take money that would not have been available without their skullduggery because that is what “the law dictates,” then I say the “rule of law” is just as stupid as the law itself. During his confirmation hearings in the United States Senate, Chief Justice John G. Roberts repeatedly pledged that he would issue opinions: “Consistent with the Constitution and the rule of law in the United States,” as if the “rule of law” were synonymous with goodness. What is all this nonsense about the “rule of law?” Laws come from men. Men can be stupid. So can their laws. Therefore, to use a lawyer’s logic, the “rule of law” can be stupid, too. I reserve no exalted place in my heart for the “rule of law.” There once were laws that permitted slavery. Under the “rule of law,” men could own other men in this country. If a law is bad, so is “rule under the law.” For that reason, I reject this hypnotic, reflexive insistence on the “rule of law” in every single situation in which legal rules come into question. For me, it is no answer to mouth the words “rule of law” when defending legal principles that lead to intuitive mischief.

Yet there is no need to even reach the question. We need only worry about the “rule of law” if we assume that the executive will enforce legal decrees. In essence, law is about power. Our constitutional system arose from power and does its best to diffuse power across several institutions. In theory, our legislative, executive and judicial branches are supposed to be “equal” in power. In practice, however, we see how artificial and wooden this distinction truly is. After all, who really has power? Only the branch with the power to compel men’s bodies and take their property has real power. Courts have the power to write erudite opinions on archaic constitutional provisions. Legislatures have the power to draft voluminous bills that attempt to better society with new rules and regulations. But only the executive has the power to shoot, kill, take, invade, imprison, threaten and enforce. Without the executive, neither legislative nor judicial “power” would mean anything. Courts and legislatures are like powerless children who depend on their father to do the muscle work. Only the executive has real power, because it is the branch with the “good arms.” And, in Machiavelli’s parlance: “There are no good laws without good arms.” The Prince, Chapter 12, p. 52. Only real power assures that the law has any force at all. On this point, Machiavelli again puts it best: “For, between an armed man and an unarmed one there is no comparison whatsoever, and it is not reasonable that one who is armed should willingly obey one who is unarmed.” The Prince, Chapter 14, p. 63. In this light, should the executive in this country really listen to carping about the “rule of law” in enforcing abhorrent private contracts for AIG executives? No. In Machiavelli’s terms, it would not even be “reasonable” for the “armed” executive to obey an “unarmed” court.

My sentiments here will undoubtedly cause discomfort among legal “process lovers.” Indeed, my article last week prompted a response that: “This is no way to run a government.” On this point I agree. Laws should be followed. Laws provide stability and comfort to commerce, and that inures to everyone’s benefit. When men know that they can obtain a peaceful remedy from a court, they will refrain from private retribution and “collection.” In almost every case, the executive should enforce legal decrees that compel private obligations. But that does not alter the fact that executive enforcement is essentially discretionary. Only the executive is armed; the court has no real power to compel anything. In rare cases—as here with the AIG bonus fiasco—the executive has the institutional discretion to refuse to honor legal decrees. After all, if private contract law leads to a result so repugnant that it reaffirms Charles Dickens’ famous dictum from Oliver Twist: “If this be the eye of the law, sir, then the law is an ass,” then the executive can step in to reverse the outcry. True, some may say that such “indulgences” to popular sentiment are the first step on the road to dictatorship and capricious government. But I say that it is worse to allow perverse “legal” results than to suspend the law in an exceptional case to avoid public indignation.

I have little patience for those who fanatically put their faith in law. Positive law—meaning written laws passed by popular majorities for majority purposes, ostensibly according to logic and human reason—does not invariably lead to good results or justice. In Hitler’s Germany, for instance, positive law—passed by democratic majorities—forbade marriages between Jews and Gentiles. Later German laws made it “legal” to exterminate Jews at concentration camps. This is an extreme example, but it shows that positive law should not be a talisman. Positive law can be bad. For that reason, trust in the “rule of law” can also be misplaced.

We all want our bargains protected. But that does not mean we should allow AIG Executives to scream “rule of law” to create a result at fundamental odds with our common sensibilities. Our common sensibilities may not be written down in a statute or casebook, but they still matter. On this point, we can turn to the executive to exercise its inherent power to deny enforcement.