The Media and the Boston Marathon - An Exercise in Futility.

In the wake of a horrific tragedy, we don’t know what to say so we now say everything. Where our knowledge and speech fails us, we fill that hole with with more and more “information” fumbling around for anything to take hold of as we feel wholly precarious. There is something both sad and human about this reaction. Human because it portrays our innate inclination to regain control after tragedy, our need to stabilize our lives and viewpoints with this tear in the fabric of reality. Sad, well sad, because it betrays our inability to live in ambiguity, and to confess the basic knowledge of our ultimate precariousness in the face of death. Instead we try to find anything to fill the void, and end up making asses of ourselves in every which way. (Most recently, in the race to first report on the capture of a suspect, CNN prematurely reported on a suspect, only to be caught looking like a fool.)

Sooner or later, without anything to actually comment on, news outlet resort to one of two things: either commenting on how we react, or commenting on potential reactions if so and so is revealed. I’m not sure which I find more inane or less helpful. The reaction to other people’s reaction tend to sound sanctimonious (I know, I know so does this post...but I think there is a difference, I hope), and largely sounds like the whimperings of a pained person, unwilling to acknowledge their powerlessness.) The prediction pieces telling us what could happen when x y and z happen are not only largely false, but smack of even worse opportunism than those who use tragedy for political uses that will accomplish nothing. Do these people really think their predictions are correct or matter? How could a prediction at this point matter? There’s a particularly objectionable piece in Salon that sounds intelligent, but upon further inspection is just misguided and kind of lame. David Sirota supposes that if the culprit turns out to be a white person the world will not demand the demonization of a group, but if they are found to be muslim they will, thereby betraying a racist bias. Good point? Even if his point was correct and not specious at it does sound, it remains less clear what the article accomplishes. It takes an uncertainty and places the focus on our potential reaction, trying to create a more controversial angle, which, is as opportunistic as Pamela Geller jumping to attack radical Islam. One misguided predictive reaction piece begets another, which creates controversy, which then in turn requires a response etc. etc. etc. A whole industry is then magically created around our lack of knowledge.

Some of this highlights the growing pains of digital media. Unprecedented access to immediate information, pictures, leads gives rise to a whole slew of opportunities and pitfalls. It offers opportunity for speculation, which in the wake of a tragedy and attack often only fosters a greater sense of confusion and panic. What really is the etiquette of posting graphic pictures that cannot be unseen? (The intentions often seem admirable, but it leads to shoddy analysis and even shoddier sharing. Many people in the immediate aftermath posted a picture of a young girl, the supposed 8 year old victim, only to later find out it was a 8 year-old boy...whoops? Can you imagine finding a picture of your child on the internet as the victim? Then there is the whole strange social rules that dictate twitter and facebook rules about what you must post, can post, and cannot post...)

This opportunism in the wake of tragedy highlights the general opportunistic nature of a for profit news media outlet. We easily see opportunism in the more blatant and explicit cases of using news for a personal agenda from columnists and politicians. Largely, after a tragedy the news world is faced with a tension between our human selves and our working selves. In his essay on reacting to 9/11 in small-town America, David Foster Wallace notices how Dan Rather’s outfit looks meticulously crafted to show him as sweaty, worried, and constantly at edge. There is an artifice to news that tragedy shatters. Tragedy tends to push everyone into a basic human existence, shorn of ideology, we value emotional outpouring. We care about life and death, about heroes, about justice and revenge. Largely it is a visceral experience, and consequently, we feel more heightened to the bullshit out there. We appreciate sincerity and chafe when it is clear that people are trying to manipulate us after a tragedy.

But, truthfully, all news is a sort of artifice, a pose that the outlets use in numerous fashions. The reactions are calculated, even when personal so as to fit in with a brand. There’s nothing particularly wrong with that, but the absurdity of that stance, one that unnaturally distinguishes between journalist and human being becomes all the more ridiculous during times of tragedies.

In contrast, we can notice that the most important words and writing to emerge out of the attack are those from the arena of culture: comedians, talk show hosts, and writers i.e. those jobs where being a human is an essential part of the job are what people want in this time. Patton Oswalt’s facebook post flew around the internet, and the collection of late night hosts reactions to the tragedy were poignant and important. But this rarely deters news outlets from scrounging around for anything to blow up into something. Comedians, hosts, and writers generally keep their finger on the pulse of life and death, and maybe the news world should take a cue from the world of art, maybe we need to learn the art and value of silence, of defeat and patience.  

Making Sense of DOMA Part #2 - On The Nature of the Supreme Court

OK, so in the last post we laid the groundwork for understanding this case, to some extent. If confusion remains, well, that’s part of the problem here. The Supreme Court is confused as well. Some of the Justices don’t understand the legality of the BLAG, or the middle position of the president who sees DOMA as unconstitutional but still chooses to enforce the law. Chief Justice Roberts went so far as to call the president a coward, or someone who lacked conviction, so confusion is built into this case. But where does all this confusion come from? Let’s go back to our initial question, why is the court getting bogged down in apparent technicalities and not just deciding on this historic issue?

This frustration with the Supreme Court is a historic frustration that dates back to the inception of the court. It asks the most basic question about the court i.e. what actually is the purpose of the court? You would think this is an easy question. We generally know the purpose of the executive and legislative branches, but the judicial branch is considerably murkier in its nature. (Think about it. The President and Congress play active roles, while the Supreme Court only reacts...) The first court, though symbolically important, was largely a lame duck court because of this uncertainty, and because of ambivalence about the power of the court. Eventually, the court grew more stable and solidified its power, and then the biggest question facing the court was the power of judicial review.

Judicial review gives the court power to decide on the constitutionality of an act of the president or congress. Though now essential to the nature of the court, this power isn’t explicitly given in the constitution. Rather, as Alexander Hamilton first argued, and then Justice Marshall made famous, judicial review is inherent within the nature of the constitution. The Constitution, as a code of law, is the highest law in the land. Any subsequent laws that are created which violate the constitution must be invalid because this subsequent law only receives its power from the constitution. In other words, as Hamilton argues, you can’t have a servant more powerful than the master. Or to put it in more contemporary terms, it’s as if the boss delegated power to an intern, and that intern used that power to undermine the boss, which doesn’t work.

 But who decides on the constitutionality of the law? Congress cannot because they make laws, and the president cannot because he enforces the law. Considering the need for a separation of power, only the court can hold this singular power. Fine, but shouldn’t judicial review allow the court to pass judgment on any and all laws they want, why the need for complication? Isn’t this there purpose, to protect and explain the constitution in each new generation?

On a similar note, wouldn’t it be much more useful for the court to serve in an advisory role so that even before laws are made, a president or congress receives the opinion of the court? The Justices throughout history, starting with the first court, decided that the disadvantages of this advisory role outweigh the immediate benefits. In a little piece of not well-known history, Bernard Schwartz reminds us that:

The very first Court felt constrained to withhold even from the “Father of his Country” an advisory opinion on questions regarding which Washington was most anxious to have illumination from the highest tribunal. In 1793 President Washington, through a letter sent to the Justices by Secretary of State Jefferson, sought the advice of the Supreme Court on a series of troublesome “abstract questions” in the realm of international law “which have already occurred, or may soon occur.” Chief Justice Jay and his associates first postponed their answer until the sitting of the Court and then, three weeks later, replied politely but firmly, declining to give the requested answers.
According to the Justices’ letter to Washington, both “the lines of separation drawn by the Constitution between the three departments of the government . . . and our being judges of a court in the last resort, are considerations which afford strong arguments against the propriety of our extra-judicially deciding the questions alluded to.”

This story highlights two important and often misunderstood aspects of the Court. First, the court was always seen as a last resort. We tend to forget that in our desire to create change. Second, it highlights the important limitation that the court can only decide legal cases.

But what does that mean that the court only uses judicial review in legal cases? Aren’t all cases legal? Not really. All cases can have legal consequences, but not all cases are necessarily "legal" in this sense. The founders established that a legal case is one that has “case or controversy,” which later theorists established a three-prong test to determine: injury, request for redress, and a real potential for the court to redress the injury. This means that the Court would only hear a case that has a real injury i.e. I am appealing a case in which I lost money, and a real request from that party to redress the injury, and only cases in which the court can actually do something. In grounding the Court’s limitations in concrete legal cases and not abstract or political cases, the early Justices kept the separation of powers intact.

Why is this so important? As usual, it all flows back to the foundation of separating powers. The early Justices realized that it was imperative that the court not have political power i.e. the power to veto a law, that court not be involved in the making of laws. Think of the alternative. Imagine the Supreme Court could just choose to pass judgment on any law they want to, or imagine that the President or congress, if they don’t like a law could just push the law into the Supreme Court. This would not only give immense power to the court in that they can stick their hands in any case they want, but would blur the line between the powers. If the president or congress is unhappy with the other branch’s decisions they could simply take every case to court.  Not only would this clog the court, and involve the court in the making of the law, but it would also take away power from the people, which is a crucial component to how laws are made.

Yet, as we can see in the DOMA case, this position also comes with downsides. It’s no mistake or act of cowardice that the President, despite the fact that he disagrees with DOMA, is still appealing to the Supreme Court as an injured party. The president wants the court to rule on the case, but realizes there exists little legal recourse to do so, ironically, because most lower courts would overturn DOMA.

Now, the court faces a choice between two of its different jobs. It needs to protect the constitution, but it also needs to protect the process of law and the integrity of the court. You can also think about this distinction in terms of short terms and long-term goals. As many note, even the more conservative justices appear ready to view DOMA as unconstitutional, but given what we’ve discussed they don’t necessarily see it as within their abilities to do so in this case. Now that sounds misguided and even stupid, no? And if you think of it in this limited context, it is stupid. It’s essentially letting a murderer get off on a technicality. Yet, if you think of it in the long-term consequences of this case, it’s portrays a perennially tough decision. If the court does decide to rule on the constitutionality of this case, then it sets a precedent that potentially goes against the nature and history of the court. If the court allows a case to go through with no real party, no real injury, and no real request of recourse, then it opens the floodgate to a breach in the separation of powers. So while people might feel frustrated with the traffic in this case, you need to factor in the long-term precedence.

Why does that matter? Because though you might urgently care about the DOMA case, you wouldn’t want the court to have this unprecedented power in a case you might disagree with. (This is always the trade off. Roe V. Wade is celebrated by pro rights groups, but pretty much all legal theorists etc. see it as a terribly argued and decided case where political expedience won over legal prudence.) Moreover, different courts take different approaches to the proactive methods of the court. Some courts take on extremely active roles that many see as undermining the purpose of the court, and others take on a more passive role and let the society decide the questions. We can see this latter approach in this case. As many have noted, the social question of same-sex marriage appears largely decided. Society is turning more and more to embracing the issue. The court approves of this bottom up approach to changing law because it sees itself as the last resort. It would always rather that the people actually decide these cases, than the court, because the government is a tool of the people, not a tool imposed upon the people.

Now, this approach can and often does slow down change in a society, but it also stabilizes the change. So again, Justices need to choose between stability and change, between the exigency of this specific law vs. the precedence it creates. There is rarely, if ever, a case of a simple black and white question of constitutionality.

To move into more explicit opinion mode, I consequently think that calling this court politicized, or cowardly is misguided. Reading through the briefs and oral arguments, it’s hard to see these justices, yes, even the often homophobic Scalia as anything but people who deeply care about the constitution. Justice Louis Brandeis once famously said that what the court doesn’t do is as important, if not more important, that what it does do. And while some of us might want the court to take a more active role in deciding the important issues of our day, historically, that is a dangerous role for the Court, one with many negative and destabilizing consequences. In a time in which our default is to mistrust politicians, I feel an odd sense of trust in this court, which might be naïve. These are many of the same people who decided Citizen’s United, but at least in reading the oral arguments and other statements, I still feel an abiding trust in their integrity. In a time in which politics is undermined by a natural cynicism, it’s nice to feel this sort of naïve trust in our officials.

Making Sense of the DOMA Case in Supreme Court

As the Supreme Court appears on the verge of a historic (non)decision on LGBT rights, I thought it would be interesting to explore some seemingly odd details of the case. Part of this post seeks to explore why is this case is so convoluted. Why doesn’t the court just pass judgment on the constitutionality of anti-gay marriage laws? Is this not the essential purpose of the Supreme Court, and if the court somehow finds a way to not pass any decision, does that not show the cowardice of this court? The more you read about the case the more you get the sense that the court bogs itself down in tangential questions of legalese that have nothing to do with the imperative essential question: how can you legally discriminate between hetero and homosexual marriages?

Let’s take a step back first to look at the facts of the case. In 1996, President Clinton, along with a majority of both the House and Senate quickly passed DOMA (Defense of Marriage Act) into law. (Yes, despite all the excuses, an embarrassing cast of politicians rushed this bill into law, including some of our favorite politicians but that’s a different topic.) Right before that, Hawaii became the first state to legalize homosexual marriage, and people were worried that other states would then be forced to recognize the marriage status of same sex marriages from Hawaii. Consequently, they drafted the DOMA bill which posits two essential clauses:

Section 2. Powers reserved to the states

No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

Section 3. Definition of marriage

In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

The first clause posits that no state must recognize another state’s same-sex marriages. Consequently, if you did choose to get married in Hawaii you cannot move to a state that doesn’t recognize same sex marriages and expect recognition of your status. The third clause posited something considerably more ambitious. It stated that for all federal purposes, marriage would only be recognized as that between a man and a woman. Accordingly, even in a state like Hawaii, if a same sex couple married they would not be entitled to what amounts to over 1000 federal rights, exemptions, and benefits that heterosexual spouses are entitled to. People took umbrage both at the concept of the law and its manifestations. Many took offense at the limited definition of marriage, and even more took offense at the discriminatory practice of depriving a couple of the same rights simply based on their sexual orientation.

Now is where things start to get tricky and complicated. After 40 years in a relationship, Edith Windsor and Thea Spyer married in Canada, though they lived in New York. Thea died in 2009 and Edith inherited her money but was forced to pay federal inheritance tax because the government would not acknowledge their same-sex marriage as legal. Windsor consequently had to pay over 300,000 dollars in inheritance tax, of which she then sought recourse for that money in court. In New York District court, she appealed her case and actually won. The court found clause 3 unconstitutional under the equal protection clause of the 5th Amendment. Fine, great, good, right? Case over, you would think.

Well, not really, because when a state court rules a federal law unconstitutional the president and Congress tend to get involved, which complicates the matter. In the middle of the Windsor case, Obama, through Attorney General Holder released a curious statement that agreed that the third clause of DOMA is indeed unconstitutional and therefore said that it would not defend the law in courts, which is normally part of the job of the Justice department. (Here is the actual statement, which indeed is a fascinating read.)

However, it did say that in deference to the president and congress who created the law, Obama would continue to enforce the law until the court or congress told him otherwise. (This seems a bit strange and counterintuitive and that’s part of the complexity...) At the same time, the House created BLAG, a great name which stands for Bipartisan Legal Advisory Group, which essentially takes up the role of the Attorney General and appointed itself to defend the constitutionality of DOMA where the president would not. (How could the House just appoint itself into powers not normally in it’s jurisdiction? Good question, and that’s exactly what the Supreme Court wants to know...)

None of this changes Windsor’s victory in the district court, but it explains why the Windsor case moved on past that victory. The Department of Justice, in effort to help BLAG, filed an appeal to a federal court despite the fact that the DOJ approved of the initial ruling on the unconstitutionality of the law. Why did they do this? It’s not explicit, but likely so as to push the case to a higher court to decide the issue. This is a bit sneaky for numerous reasons and smacks of the DOJ trying to have its cake and eat it too. Despite the fact that the DOJ essentially won in the initial ruling, it wanted a higher status ruling so it pushed the case up to Federal Court. BLAG wasn’t too happy with this strange situation and tried to show that the DOJ can’t do this because they received no injury in this case i.e. the intuitive claim that this is what the DOJ wanted all along, so they can’t then appeal the case as if they lost. (We will get back to this...) Windsor, seeing the mishmash here, asked for the case to be brought before the Supreme Court, bypassing the lower federal appellate court, which the Supreme Court rarely does. Windsor cited her old age, but it’s hard to imagine that is the true consideration.

The Supreme Court decided to accept the case, but the case still went to federal appellate court and was upheld, thereby becoming the first federal court to declare clause 3 of DOMA unconstitutional. The DOJ then, in addition to Windsor’s request, petitioned the Supreme Court to hear the case, and this is where we stand. The Supreme court will now decide on three questions.

1. Is Clause 3 indeed unconstitutional under the equal protection clause of the 5th Amendment?

But before that, it needs to determine two other legal questions:

2. Does the fact that the president and the DOJ agree with the unconstitutionality of the law nullify them from being injured and therefore deprives them of the right to take the case to the Supreme Court?

3. Does the BLAG having any standing as a party in the case? It’s a similar but opposite side to question #2 here. The DOJ and the president, despite approving of the court ruling want’s to have its cake and eat too, by getting the Supreme Court to decide the case. BLAG which disapproves of the court’s decision want to defend the constitutionality of the law, but it remains unclear what standing this unprecedented BLAG group in law.

If it doesn’t believe that the DOJ or the President has standing, i.e. the right to bring the case to the Supreme Court, then the court cannot rule on the case, thereby obviating question #1. Windsor can’t bring the case to the Supreme Court because she is not seeking a recourse for injury i.e. she already won. It’s hard to see that the DOJ is truly seeking recourse because they want the law overturned, so the case would have no legs to stand on. What makes this case somewhat unprecedented is that there appears to be no injured party here. Windsor won all of her lower cases, and the President agrees with the unconstitutionality of the case, and the BLAG, at first glance is not a real party. So what to do, and why does this feel unnecessarily complicated? 

Here is where the nature of Supreme Court comes into play, and here is where people begin to call the court cowards, or followers, and this seems to be a prevalent sentiment, but predicated on an apparent misunderstanding of the Supreme Court. All of this we will explore in the next post.

Thanks for reading.

Joe