Odysseus' Gambit: Portrait of a Human Being

On the surface, the story feels too ripe for telling. 

New York City, Union Square Park, a veteran chess player who, we assume, has a life story that will just blow us away. Who hasn't stood watching these men, wondering about the life decisions that brought them to play chess with unsuspecting gullible tourists, how they live, what they eat, where they sleep, what they can teach us about America, about the human experience. All of which sounds like perfect art school fare, the perfect sad and almost inherently maudlin tale that would allow you someone to connect the dots, add dashes of artistic flair, and viola! a perfect though sterile movie. 

Yet, somehow, in this deceptively short yet powerful documentary, Odysseus' Gambit, instead of taking the easy, simple way through the narrative, the stories dances on its own to show us the depths of one personality. Saravuth Inn, a chess master of Union Square Park, sits down everyday with his cigarettes and tries to make enough money playing chess with tourists. Alex Lora, the director, focuses his lens on Inn and the bustling noises of NYC. The movie crafts a slow burning story that unfolds with subtlety that allows the story to breathe, to tell itself, without commentary or a moralizing streak. Inn, we see, is sometimes jovial, other times cranky multi-talented man. He is at turns funny, perceptive, ornery, self-pitying, and sometimes just downright angry. He knows that to take money to play chess is not really a job, but a sort of act to ask for money to subsist and so sometimes he plays the part, other times he shatters the illusion necessary for charity. The conversation turns uncomfortable, or too intimate at turns, when the details of this man's harrowing life emerges. A infancy of genocide in Cambodia, American goodwill turned sour, a precocious childhood in exile, no healthcare, increasing medical issues, poverty and the list goes on. 

The camera adds much to the subtlety here. Instead of trying to craft a cohesive and coherent narrative, the camera cuts quickly between shots, and focuses on the strange and beautiful details of NYC: a cemetery of cigarettes, the symphonies of subway sounds, the jargon of the park residents. At each moment you expect some money shot, some life lesson, the camera cuts away, as if to tease us and expose our expectations as superficial. Framing the story is the chess player's explanations of how he plays chess, his craft. This makes the story about something more than sadness, an in this diversion, in its explicit mold as a symbol for life, the movie navigates between the compelling story of loving chess and the harshness of an arbitrary life. What emerges from the story is nothing less than the story of a full human life, without the need to create an easy pat narrative that ties it all together. Kudos. 

Watch the movie here. (Scroll down past the trailer and list of awards.)

Philosophy and the Mirror of Nature: On the Riddles of David Foster Wallace

One of the stranger, perplexing, yet still highly enjoyable stories by David Foster Wallace is his story, “Philosophy and the Mirror of Nature” from the collection Oblivion. In it, a dutiful son takes care of his mother, driving with her back and forth to her lawyer’s office on the bus. The mother, reaping rewards from a liability suit, elected to get cosmetic surgery which went terribly wrong, twice. She now walks around with a constant face of terrific panic and fear, which understandably, scares those around her. Her son, the narrator of the story, was involved in his own lawsuit with a 9-year old boy who fell through the roof of his space in which he keeps many deadly species of spiders. The boy fell and was killed. Past that, there’s not much narrative in the story. Rather, like much of the rest of Oblivion, it is a story of telling of a story. In the immediate presence of the story, the son and the mother are on the bus, and that’s all that really happens.

All of which adds to the confusion of the story. But DFW always loved paradoxes and riddles, and he piles them on in this story. While most of the story unfolds in a clinical manner befitting a person obsessed with the science of spiders, there are interspersed moments of narrative that appear as non-sequiturs. While the son discusses some minutia of spiders, he all of a sudden begins discussing the facts of the lawsuit brought against him. After reading the story once, and being left in a bit of scratching head situation, it feels as if DFW wanted us to feel confused, and wanted us to solve the riddles of this story. He purposeful doesn’t tell us names, and keeps the nature of the son’s obsession i.e. spiders, out of the story till the end. Many facts of the story only unfold with time, and many others are left out. The story also appears purposeless. While authors can make compelling stories out of the most mundane events, this feel trip to a lawyer on a bus feels purposefully purposeless, almost a sort of game, a chase to find clues and put together to get at the truth.

Perhaps the biggest confusion of the story is the title. The title is both a beautiful and old metaphor for philosophy, made most famous by the seminal philosophical book of the same name written by Richard Rorty. At first, and second, and even third glance, the connection between the book and this specific story is tenuous at best. Rorty’s book and philosophy, as a whole, fits in with DFW’s general thought. Rorty, to put it crudely, sought to undermine the classical sense of philosophy as providing the grounds on which to judge all our cultural knowledge. This is probably the most simple understanding of philosophy, which many have called a mirror to nature. I.e. we believe that somehow, through unique philosophical thinking, we can uncover the center of our knowledge, that which grounds how and what we know about everything else in the world.

An offshoot of this belief is that the purest and best form of knowledge is scientific or philosophic, which is exactly what Rorty wants to undermine. For Rorty, and many other philosophers, including DFW’s favorite, Wittgenstein, philosophy is less about finding the truth, and rather about a unique type of therapy. For Rorty, systematic philosophy that creates its own system of thought and jargon is simply a choice of another type of discourse. In no way should philosophy or science be seen as more privileged, outside of its immediate realm. Though science and philosophy purports to tell us the whole truth about the world, it tells us a truth within a framework of rules. All of this type of thinking is therapeutic because it pushes a person away from the concretization and rigidity of thought.

Philosophy then, and for DFW we can say literature, is not about arriving at some truth, after which a person can rest, but philosophy and literature is rather a posture of openness to information, other people, and the outside world. It’s not hard to see this as part of DFW’s general thought in that his #1 fear was solipsism, the obsession with what goes on inside a person’s brain as opposed to real and fluid interaction with other people. Much of DFW’s themes, imagery and stories, depict people stuck in some sort of language game, whether that is the jargon of addiction, or advertisement, or psychotherapy. Consequently, so much of DFW’s writing attempted to break down the borders between different systems of language. Many of his stories unravel jargon, pointing to its border and emptiness, the need for constantly changing and new language.

But what does this have to do with this specific story, and couldn’t really any of DFW’s story have been called Philosophy and the Mirror of Nature. Probably, because any sort of explanation is hindsight and reconstructive. Yet, I do believe a synopsis quote from Rorty’s book provides the beginning of some keys to read the story in its fulness:

To see keeping a conversation going as a sufficient aim of philosophy, to see wisdom as consisting in the ability to sustain a conversation, is to see human beings as generators of new descriptions rather than beings one hopes to be able to describe accurately.

Classical philosophy in this breakdown assumed that not only was accurate description possible, but that it would bestow wisdom and change. To know, to categorize, was seen as enough in the way of understanding. The contrast is to see all sorts of language systems, all jargon self-contained and tell us very little about anything past themselves.

Looked at in this light, in the sense of language hardening into rigidity limiting true contact, this story oozes with the limits and pretensions of language. In fact, it is less a story per se and considerably more of a language game which highlights what happens when different systems of language butt up against each other and break down. The narrator, the son, has no conversation in this story at all. His job and obsession is scientific categorizing and he feels the need to consistently point out idioms as idioms, as if we wouldn’t understand the duality of language. His stiltedness gets so tough to deal with that at points, he seem clinically unable to feel or understand emotions, or any of the mess of life. He is the Uber-scientist and philosopher who believes he can capture the world through understand and the correct use of language, as he could break through to some center that would explain everything. 

This story is a send-up of a prevalent, though outdated view of philosophy and science. Moreover, the story fits into the rest of Oblivion as most of the stories describe a person caught in the jail of their own brains. Here, the jail manifests in a sort of obsessive need to categorize which creates a distance and disables any sort of real communication. There’s also a sort of classic DFW irony in which we tend to think of language as the ultimate sign of humanity, but here, we see it as an evasion, a crippling jail that robs this person of any semblance of humanity. As an added layer, the riddles of the story ends up really going nowhere. There is no center of the story, no real key to understand its riddles, which is sort of the whole therapeutic point of Rorty’s book.

The Doma Decision - Making Sense of it All

Whether you agree with the outcome or not, The Supreme Court created history today with its ruling on DOMA and Prop8. While the outcome feels clear i.e. that the Supreme Court found the federal definition of marriage as unconstitutional, how they did it, what arguments they used, is a considerably knottier question. I hope to be able to clarify some of the issues, arguments, and logic in this post. (Here’s the opinions of the courts on DOMA) (And for a more extensive background, check out previous blog posts, here, and here.)

In a 5-4 decision, the majority struck down DOMA as unconstitutional because it discriminates against a specific group of people for conceivably no good reason. The problem with this, as we’ve mentioned in previous posts, is that the case before the court entails the question if the court has the right to judge on this case in the first place (Unnecessarily convoluted, I know...) If you recall, this case in not a normal case because there seems to be no aggrieved party here. Edith Windsor has already won her case in lower appellate court, and the President declared DOMA unconstitutional. Consequently, it looks like both the plaintiff and the defendant want the same ruling i.e. that DOMA is unconstitutional so how could this have made it the supreme court?

For Scalia, that’s exactly the main problem with this ruling: the case should have never made it to the Supreme courts. After he dismantles the majority’s explanation for why it is indeed a real court case of opposing parties, Scalia goes on to explain what he sees as the essential difference between his opinion and the majority. Scalia paints the disagreement as a fundamental argument as to the nature and scope of the Supreme Court’s power. For Scalia, the court has a considerably narrower scope that what the majority likes to claim. Scalia contends that the main and fundamental purpose of the court is not to decide on the constitutionality of any law, but rather to decide real and concrete and actionable cases. Judicial review, he claims, is only a byproduct of the need to judge real cases with immediate consequences, while he believes that the majority see Judicial review, i.e. the need and ability for the court to decide on the whether a law is constitutional, as the main and foundational role of the court.

We have never before agreed to speak—to “say what the law is”—where there is no controversy before us. In the more than two centuries that this Court has existed as an institution, we have never suggested that we have the power to decide a question when every party agrees with both its nominal opponent and the court below on that question’s answer...We perform that role incidentally—by accident, as it were—when that is necessary to resolve the dispute before us. Then, and only then, does it become“‘the province and duty of the judicial department to say what the law is.

He therefore sees the court as woefully overstepping its boundaries in this case. Kennedy doesn’t paint the argument in these terms. While he himself does discuss the role of the court, he also believes that this case is a real and actionable case in which there is claim and controversy upon. He doesn’t see this as just deciding on an abstract issue or just choosing to impose the court’s will on a public debate.  Scalia responds that this line of argumentation is a rationalization so that Kennedy could decide on the larger issue, and that on it’s own, the case shouldn’t have made it to the Supreme Court in the first place. (It’s important to realize that Scalia, so far, has yet to say anything about the actual legality of same-sex marriage. He is making a purely legal point about the court and its responsibilities.) It should be noted that Kennedy, as much as he does try to make it a regular case, needs to do jump through hoops to do so, and ends up saying that though it’s not a normal case, because of the importance and negative impact of DOMA, the court should decide on this case, which, ironically is exactly what Scalia disagrees with.

Scalia proceeds to make many substantive points in proving that this case does not fall under the jurisdiction of the court, whereas Kennedy spends most of his opinion showing how DOMA is an inherently discriminatory law. On this front, perhaps because Scalia spends considerably more time on the actual history and arguments, he sounds more intelligent and correct given the premises and history he marshals. The majority opinion does indeed seem to create a legal stretch and has a lack of precedence for deciding that there is a controversy in this case between the two parties, even though both the Executive Branch and plaintiff agree on the unconstitutionality of the law.

As is most often true in his arguments, Scalia is less compelling in his positive statements which try to defend DOMA as anything else besides mean-spirited, than in his criticism. His critiques work much better than his vision, not for his lack of intelligence, but for his naivete. Here is probably the most salient example. Scalia tries to argue that DOMA’s motivations and enactment was not inherently discriminatory because it served purposes other than its actual discrimination, which leads him into this sort of twisted logic:

“To be sure (as the majority points out), the legislation is called the Defense of Marriage Act. But to defend traditional marriage is not to condemn, demean, or humiliate those who would prefer other arrangements, any more than to defend the Constitution of the United States is to con demn, demean, or humiliate other constitutions.”

   
 This is like saying pro-life doesn’t necessarily disagree with the pro-choice, but rather they stake out different choices. Overall Scalia’s argument for the constitutionality of DOMA reads a bit thin, as he tries to explain the validity and importance of that specific law, but he makes numerous interesting and often larger points. Essentially, which connects back to his first point, Scalia sees the judicial system as trying to take away the rights of the people to actually make this decision for themselves.

As to that debate: Few public controversies touch an institution so central to the lives of so many, and few inspire such attendant passion by good people on all sides. Few public controversies will ever demonstrate so vividly the beauty of what our Framers gave us, a gift the Court pawns today to buy its stolen moment in the spotlight: a system of government that permits us to rule ourselves.

He goes on to opine upon the dangerous rhetoric of the majority that paint anyone who wants only hetereosexual marriages as evil:

In the majority’s telling, this story is black-and-white: Hate your neighbor or come along with us. The truth is more complicated. It is hard to admit that one’s political opponents are not monsters, especially in a struggle like this one, and the challenge in the end proves more than today’s Court can handle. Too bad. A reminder that disagreement over something so fundamental as marriage can still be politically legitimate would have been a fit task for what in earlier times was called the judicial temperament. We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide.

 Looked at in the context of Scalia’s other opinions and decisions, it’s a bit hard to take this 100% genuinely as he often seems to not care at all about other people's opinions. However, taken alone, it is a powerful statement and call for a different sort of political conversation and understand of the other side. Even if Scalia is coming down well wide of the moral path of history, he does so in reinforcing values most of us would accept - the freedom and autonomy to make our own decisions, the divestment of power from huge institutions, and a political dialogue of mutual respect and empathy.

   However, it’s pretty impossible to deny all of Kennedy’s points about the inherent discrimination written into DOMA. (I focused on Scalia both because he is more explicit, and just a better writer which facilitates analysis. Moreover, Kennedy is considerably more straightforward in his positive argument.) In this, Kennedy shine’s as a writer and a moral crusader, considerably more so than his often clunky, repetitive and almost mysterious legal arguments regarding the issue of standing and controversy. Here, Kennedy states without an equivocations:

The avowed purpose and practical effect of the law here in question are to impose a disadvantage, a separate status, and so a stigma upon all who enter into same-sex marriages made lawful by the unquestioned authority of the States. The history of DOMA’s enactment and its own text demonstrate that interference with the equal dignity of same-sex marriages, a dignity conferred by the States in the exercise of their sovereign power, was more than an incidental effect of the federal statute.

Kennedy has many versions of this basic argument, but then, in his most powerful statement of the piece, drops this great moment of moral clarity:

The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives.

I hope this helped in terms of understanding some of the basic arguments on the ground.

Thanks for reading,

Joe Talk

First Impressions of Arrested Development - No Spoilers

I sort of told myself that I wouldn’t do this because of adulthood and things like that. That I didn’t need to wake up or stay up till 3 a.m. and binge on new Arrested Development Episodes, but it was hard to pass up on that kind of nerd obsessive opportunity. I didn’t watch all the episodes, but I watched more than half (9) and I watched at least one from each individual character. The show is fun and funny made me consistently smile, and it’s not that it’s not good enough as the earlier episodes, they are just different, perhaps too different. The most evident differences are the structure of the show and the turn into darker plots and tones. 

The problems with these episodes arise in the first episode, after which you wonder if maybe they changed the style and format of the show just for this first introductory episode. One flaw or problem or just important change is the decision to focus episodes on a central narrator, to follow that story alone throughout a 30 minute episode while neglecting most of the other characters. Consequently, it asks for too much from the plot and personality of the character of a show that always relied on cartoonish elements. So much of why the show worked in the first place had to do with these cartoonish parts: the lack of consequences, the non-sequitur in plots, the outlandish sketches, the tightly crafted stories that fit too well all working with overlapping smalls appearances from all the characters, not a focus on any one. It really feels like watching a different show inspired or based on the characters of Arrested Development - the new episodes lack the sharp editing cuts, layered plots, and the webs of quick, dense and fitting allusions. 

The show worked best when there wasn’t a focus on plot, but when plot served as a stage for the characters’ antics. But here, there is an obsession with exposition and plot. I respect the ambitiousness and intricacy of the attempt to weave together past and present, but we barely ever see them together, they can’t play off each other as a group and so it is just less dynamic and funny. One of the best scenes of the series works so well because we get to see everyone in contrast and in collusion with the other. The family sits in the living room, awaiting to hear from the P.R. person Michael hired: Lucille looks bored and judgy, George Michael awkward and nervous, Tobias happy and oblivious and then the scene just builds off of that. The P.R. agent runs through each character, including George Bluth skyping in from Jail wearing a purple yarmulka. This situational setup allows everyone to be perfect. But in the batch, none of this occurs, and it puts to much weight on individual characters as opposed to the brilliance of the group interactions. 

It’s hard to say where the next big shifting decision came from, maybe from the decision to focus on one person, and therefore a need arose to create deeper and larger personalities than the comic portrayals of the first three seasons. There’s a strange seriousness and darkness in the new season that was completely absent and delightful in the first substantiation. Nothing mattered, no one fell too low, or was too degraded to care, and no one really got hurt or did anything terrible and demeaning. There was a real seriousness here that just felt jarring and at odds with the lovable insanity of the other seasons. There is now a sadness and humanity to the show that just makes it a different category of comedy and maybe that has it’s own value, but it doesn’t feel like Arrested Development. This has its benefits, most of the characters don’t work when we try to treat them like real people, but one storyline works wonderfully with some development. The parts of Lucille and George, especially the pretty spectacularly and shockingly mundane marital life, is just compelling and beautiful acting and writing. They sit and drink coffee together, or just talk, and it feels tender and you understand their love for each other, which was the first time I had a feel and deep emotion for any of these people. They sit and talk about themselves, about their children and lives, and while funny also just moving and sweet. 

The show chose to explore different emotional and narrative terrain, and that’s interesting and potentially creative, but that it feels different, qualitatively so from the first three seasons feels actually like a let down. So much of the excitement, and this is probably not a fair to standard to use, was to just have this awesome family back in our lives, with their strange idiosyncrasies and idiocies, and while there were moments and even episodes that felt like the old ones (Tobias and Lucille are pitch perfect), or even shadows of the old one, they often feel too different. It’s great to have them back, but it feels like they changed too much in the interim. 

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