A comment on modern legal formalism: Coded authoritarian language

Yesterday's post on the illusion of neutrality by the current six authoritarian Republican USSC judges touched on the concept of legal formalism (LF). In the 1860s and 1870s legal scholars invented and developed LF as a means to impose neutrality in the application of the law. Today MAGA uses LF as cover for the modern authoritarian MAGA wealth and power movement to use against us today. LF wound up being used to protect vast unequal wealth distribution through the 1940s, but in modern times, it is now used by MAGA judges to advance authoritarianism and kleptocracy. 

Writing yesterday's post led to a realization. Some authoritarian MAGA judges nominees signal their loyalty to authoritarianism and kleptocracy by referring to their alleged but fake neutrality in applying the law. The phrase "calling balls and strikes" elicited a personal feeling that the phrase was virtue signaling to authoritarians and kleptocrats. But, is there any evidence that feeling (intuition) is true? I asked Pxy, all of which is at the same link I posted yesterday:

Q: Have prominent legal formalists described the job of judges as one of calling balls and strikes as a way to convey the idea of being neutral, despite knowing that the neutrality they sought was an illusion to help authoritarianism maintain power. 

A: Yes, prominent legal formalists have indeed described the job of judges as "calling balls and strikes" as a way to convey the idea of neutrality. This metaphor was most famously articulated by Chief Justice John Roberts during his 2005 confirmation hearing, when he stated: "Judges are like umpires. Umpires don't make the rules, they apply them. The role of an umpire and a judge is critical. They make sure everybody plays by the rules, but it is a limited role. Nobody ever went to a ball game to see the umpire".

Brett Kavanaugh used nearly identical language in his 2018 confirmation hearing, declaring: "A good judge must be an umpire — a neutral and impartial arbiter who favors no litigant or policy".

But, there is a complication (as usual). The balls and strikes analogy for judges has lost its original meaning, sort of. The phrase "balls and strikes" was used 11 times during Sonia Sotomayor's confirmation hearings, with "umpire" mentioned 16 times. 

The thing is though, using the balls and strikes analogy gets the law wrong. The law and its application is not usually black and white. Shades of gray dominate most of the time (~85% ?). Congress is sloppy and incoherent in most of its laws. The Constitution is more often ambiguous about core rights than it is clear. And, there often is ambiguity how the English language is used compared to was is intended. Writers and speakers often leave meaning to context, sometimes intentionally so to allow people to believe what they want. 

A law blog post picked up on the reality of the coded language. "In the context of a Senate Judiciary Committee hearing, and given our modern rhetoric about the role of judges, is there any doubt about what Roberts knew his audience would take from the comment? And is there any doubt about why the umpire analogy has immediately entered the vernacular?"

So there it is. When Democratic federal court nominees talk about only calling balls and strikes, everyone knows what they intend that analogy to mean. Who knows what the Dem nominee actually means, but it probably isn't LF.** But when a Republican nominee sits there and blithers about balls and strikes, all Republicans know the nominee is signaling they are a super-duper authoritarian LF trooper. Knowing what, if anything, the Dems in the room take from it is way above my feeble mental powers.

** The opposite of LF (anti-democracy) is ALR (American legal realism -- pro-democracy). Most Dem judges are adherents of ALR. So when Dem nominees blither about balls and strikes, they actually might know what the hell they are talking about. But if they do, they're arguably cynical liars, unless they really mean that also believe in LF legal ideology. 

One legal observer says that the "balls and strikes" metaphor is what scholars call "the triumph of conservative** rhetoric on the role of judges." It provided conservatives with a powerful narrative tool to claim neutrality while pursuing partisan objectives. As is still depressingly common these days, that assessment fails to mention that authoritarianism is inherent in the analogy as currently used. 

** My Dog, why is it so fracking hard for people to call authoritarianism out for what it is? Maybe Satan has a hand in this just to be frustrating.

Finally and FWIW, the last Q&A with Pxy at the link above indicates that Dem federal judge nominees know that the balls and strikes analogy misses the mark. The analogy has been criticized by some Dem judges, e.g., Elena Kagan. Existing evidence suggests that when Dem judicial nominees use the analogy, they are not signaling authoritarian intent. It is just rhetoric to get a Senate confirmation vote. However, when modern Repub judicial nominees use the analogy, they are signaling authoritarian intent. 

Regarding our "neutral", authoritarian, double standard-driven USSC

In alignment with other legal scholarship, a Slate article concludes that our USSC has lost its legitimacy due to its partisanship and blatant double standards. It now usually favors Republican authoritarian causes and policies while disfavoring opposing positions. The law has been degraded into a means to achieve authoritarian and kleptocratic ends at the expense of democracy and the public interest. Special interests that benefit love it, while we get screwed, abused and ripped off. 

This moral rot at the USSC has been apparent to some for a few years, but this thinking now seems to be mainstream among legal scholars. It's about damn time these experts got woke. Probably too late. 

The Slate article, A neutral Supreme Court principle applies only to Democratic presidents,  focuses on the USSC's recent use of "neutral" legal doctrines. There is nothing neutral about it. It is partisan. The court's made-up out of thin air "major-questions doctrine" and new interpretations of standing, are applied inconsistently. The net effect is to the detriment of Democratic presidents while Republican administrations receive far more favorable treatment. The article points out that the Court's self-professed neutrality is highly malleable or, "squishy." The USSC uses these legal tricks and illusions to justify predetermined MAGA outcomes. That directly contradicts the legitimacy of the Court's claim to impartiality.

The court has been more willing to find standing for parties to sue or invoke broad indefensible or ill-defined (squishy) doctrines when Democratic policies are at stake, but not when Republican actions are challenged. Squishy doctrines give Republican authoritarianism and kleptocracy a pass while rejecting pro-democracy and honest governance efforts by Democrats. 

A major problem here is that for humans it is impossible to be neutral. Legal scholars have debated whether "neutral principles" are even possible or whether they mostly serve to mask ideological preferences. This Supreme Court with six MAGA judges often fails to apply its reasoning fairly across similar cases, especially in politically charged contexts. 

Authoritarian MAGA legal scholars are using "neutrality" as an excuse to hijack actual neutrality for authoritarian and kleptocratic ends. With today's USSC, objectivity has been replaced by partisan MAGA and special interest power. 

THE HISTORY OF NEUTRALITY

The concept of fake neutrality in constitutional law was not invented by MAGA authoritarian legal scholars. Fake neutrality in constitutional law was discovered over time by pro-democracy legal scholars. Buried deep in American government, law and commerce was a lot of authoritarianism. It was heavily shielded by claims of neutrality and a lot of secrecy and deceit. The earliest pro-democracy legal movement began with the Legal Realism movement of 1881-1940. The movement was launched by Oliver Wendell Holmes Jr.'s 1881 observation that "the life of the law has not been logic; it has been experience." 

Attacks on the neutrality concept was provoked by the rise of Legal Formalism (LF) in the 1860s and 1870s. LF was fundamentally grounded in deceptive concepts like neutrality to hide or deflect from the authoritarianism, corruption (kleptocracy) and elitism that was inherent in the power structures, politics and commerce of the time. LF was a sophisticated form of ideological propaganda warfare and disguise to serve powerful special interests during the Gilded Age and later. It was anti-democratic. LF was the dominant theory of legal thought in the United States from the 1870s until the 1920s, during the Gilded Age when extreme economic inequality and industrial capitalism created unprecedented concentrations of wealth and power. 

The bottom line: The modern authoritarian MAGA wealth and power movement clearly wants a modern times return to those much better than merely good old days for the elites. They lie about and hide their intentions behind fake neutrality, made-up doctrines and crackpot reasoning to achieve authoritarian and kleptocratic ends. MAGA's rule of law amounts to the rule of the dictator or big business or Christian nationalist elites. It really is just that simple.

For people interested, the entire Q&A series with Pxy is at this link. 

FWIW, a post about American Legal Realism is at this link. An Introduction To Legal Reasoning (1949) was the book that first made me aware in 2018 of the origins of huge, intractable differences in legal reasoning between authoritarian MAGA and pro-democracy mindsets. This really is all about democracy vs. authoritarianism.

Blog note: My invite list

This is my current invite list. If you don't put the ":disqus" after whatever Disqus assigns to your account (or you change it to), the call won't work.

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Daoist politics

 (Post by Dan T)

“How do Daoists deal with political and other kinds of threats?”

Germaine asked me that question over on another side of the world. I told him that’s a hard question and I’d put some thought into it.

So here we go. I’m usually very fond of quoting Zhuangzi. But for this one, I ended up sticking with Tao Te Ching. I quote extensively here, with brief commentary of my own. The translation is by Gia-fu Feng and Jane English. 

Daoism is decidedly anti-tyranny: 

Leading yet not dominating, 

This is the Primal Virtue.

(Tao Te Ching, 10)

Whenever you advise a ruler in the way of Tao, 

Counsel him not to use force to conquer the universe. 

For this would only cause resistance. 

Thorn bushes spring up wherever the army has passed.

(Tao Te Ching, 30)

Good weapons are instruments of fear; all creatures hate them. 

Therefore followers of Tao never use them.

(Tao Te Ching, 31)

When a truly kind man does something, he leaves nothing undone. 

When a just man does something, he leaves a great deal to be done. 

When a disciplinarian does something and no one responds, 

He rolls up his sleeves in an attempt to enforce order.

(Tao Te Ching, 38)

And like Christianity in its earliest forms, it doesn’t aspire to political power:

The highest good is like water. 

Water gives life to the ten thousand things and does not strive. 

It flows in places men reject and so is like the Tao.

(Tao Te Ching, 8)

It doesn’t advocate active resistance to tyranny. It counsels a more counter-intuitive path:

Yield and overcome; 

Bend and be straight; 

Empty and be full; 

Wear out and be new;

(Tao Te Ching, 22)

The softest thing in the universe 

Overcomes the hardest thing in the universe. 

That without substance can enter where there is no room. 

Hence I know the value of non-action.

(Tao Te Ching, 43)

But I don’t think there’s a promise that these tactics can magically defeat tyranny. In one sense, there’s a confidence that tyranny will defeat itself:

Whatever is contrary to Tao will not last long.

(Tao Te Ching, 55)

Force is followed by loss of strength. 

This is not the way of Tao. 

That which goes against the Tao comes to an early end.

(Tao Te Ching, 30)

And yet we know through experience that tyranny is actually pretty durable, especially on the time scale in which we as individuals live our lives. And that more often than not, when one form of tyranny collapses or is overthrown, it is just replaced by another tyranny. IMO, Daoism does not offer a solution to that problem. Rather, it offers an attitude toward unsolvable problems–basically, stoic acceptance:

The universe is sacred. 

You cannot improve it. 

If you try to change it, you will ruin it. 

If you try to hold it, you will lose it.

(Tao Te Ching, 29)

There is no greater sin than desire, 

No greater curse than discontent, 

No greater misfortune than wanting something for oneself. 

Therefore he who knows that enough is enough will always have enough.

(Tao Te Ching, 46)

The world is ruled by letting things take their course. 

It cannot be ruled by interfering.

(Tao Te Ching, 48)

Accept disgrace willingly. 

Accept misfortune as the human condition. 

What do you mean by “Accept disgrace willingly”? 

Accept being unimportant. 

Do not be concerned with loss or gain. 

This is called “accepting disgrace willingly.” 

What do you mean by “Accept misfortune as the human condition”? 

Misfortune comes from having a body. 

Without a body, how could there be misfortune? 

Surrender yourself humbly; then you can be trusted to care for all things. 

Love the world as your own self, then you can truly care for all things.

(Tao Te Ching, 13)

So in one sense, Daoism offers a political programme. But I can’t say it offers a means to achieve that programme, at least on a timescale any individual is likely to find useful. Instead, it offers a shift in perspective: Politics won’t save us. Likely nothing will save us. Maybe there’s nothing to be saved from. Maybe the problem is our expectations, and not that the world doesn’t meet them. Maybe we might as well drop everything and orient ourselves toward that which is nourishing and sustaining and eternal. It won’t change anything, but it could change everything.

Postscript: None of this means a Daoist can’t be politically active. But I don’t think the default position would involve anticipating notable political success.