Wednesday, October 28, 2020

Ruminations 94: "The Mechanics of Perfection," Reflections on the Swearing In of Supreme Court Justice Amy Coney Barrett


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 The process leading to the eventual swearing in of Amy Cony Barrett as an Associate Justice of the US Supreme Court on 26 October 2020 (here) has absorbed the American elites, no elite field more than ts lawyers and lawyer academics. There was good reason for that, of course. And that is the problem. Having legalized politics over the course of the last century, and constructed the judiciary as its arbiters, the fortunes of political factions ride on the selection of appointees to its highest court. Serendipity and longevity favored the liberal faction in the short run--producing majorities or close dissents by a group of jurists who held on during the last years of the last Democratic Administration. But in the long term, it appears, fortune favored certain factions of traditionalists, especially since the (to their political enemies) unexpected election of Mr. Trump in 2016. So now, having invested authority and legitimacy in the courts, having placed them as the overseers of law, of administrative discretion, and of the meaning of political action, the political enemies of the forces assumed to be represented by the newest Associate Justice face the prospect of a court which would no longer reliably be their instrument (at lest from the perspective of ideology)

The wheel turns; it will no doubt turn again.  But that is of little comfort to contemporary combatants who will mostly not live long enough to see that happen. The politics and ideology that drives this combat, and the specifics of the individuals involved, has produced much passion; it has revealed much by way of ideological preference.  But it has revealed far more than that--it has exposed the peculiar tick of American legal culture that has over the course of the last century transformed American politics as well as its conception of law.  It is simply this:  
American philosophy of law is better understood as theology than as that traditional American academic or pragmatic discourse that styles itself philosophy. The mechanics of an American philosophy of law provides a basis in reason for an American theology of faith in the perfectibility of law. The relationship among reason, faith, and truth (perfection) better defines an American philosophy of law than do traditional, merely rational, conceptions. (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy, Theology and the Foundations of American Law,' in On Philosophy in American Law 44-52 (Francis J. Mootz, Jr., ed., Cambridge: Cambridge University Press, 2009).

Americans continue to ask a sideways (I was going to write "wrong" but that itself suggests the alignment of law with some sort of state pf perfection) question of their law and of their judges; they ask if the law is perfect and the application is the right "one." They seek judges who can be instruments of this striving toward perfection--will the judge deliver the "right" result in the form of a "correctly written" opinion? Perhaps they might better ask whether the law is suitable for the times and whether the judge is able to deliver some sort of plausible interpretation. The core question, perhaps, then should be plausibility rather than perfection. Perfection belongs to the realms of morals, politics, theology, and ideology--subjects suitable for argument, and battle in which the legal system serves as crucible. Americans, however, have long rejected the notion law follows rather than leads social transformation. It is just that the ancient document through which this transformation  is to be realized continues to pull in the opposite direction in a sometimes most inconvenient way.

Still, Americans now embrace the ideology of perfection. A perfectible law requires perfectible jurists. Neither is possible. Our system was not designed to produce the perfect state, reflected in perfect law, overseen by a perfect magistracy.  Americans once left that striving toward perfection to moralists, politicians. . . . and eventually to our Leninists. The task of the law (once essentially private) was to strive toward perfectibility as it suited the times. It was left to moral-politics to guide suitability. That is both the genius and the tragedy of the contemporary American political-juridical system, now built as it is on the necessary scientism (ad with it notions of perfection) of the administrative state.  The conflict around the suitability of Amy Coney Barrett, then, reflects  the way law is now understood as the expression of a striving for (eternal?) perfection--a theological and Leninist conception--one that requires the perfectible instrument for its delivery.  And it is to that that these brief reflections are directed.

1. Americans (or at least those of its legal and academic elites who constitute its self appointed magisterium) have come a long way from the notions of Justinian's Institutes and that of the ancient common law that law and justice is understood as an interactive process in which people are accorded their due. (Institutes Bk 1, tit. 1 § 3 ("The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.")). "The philosophy of perfection, thus, can be subsumed under a greater objective – the search for perfect order. The amalgamation of rechtsstaat with the substantive basis of a Sozialstaat, the perfect order merges expression (law), means (government) and mechanics (philosophy) into a dynamic whole that ultimately achieves rest (the end of striving) and thus, peace." (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy,' supra). 

2. Perfection, though, is ultimately a moral concept.  From the "Latin perfectus "completed, excellent, accomplished, exquisite," past participle of perficere "accomplish, finish, complete" (here), it suggests the end point of a process that leads from darkness and error, from that which is incomplete and unfinished, to that which in itself requires nothing further.  It is the ultimate state of rest, the end of striving--of thinking.  For some that well describes death (of individuals, society, moral systems,etc) but to others it signas the end of politics, of conflict.

3. Law can be made perfect.  That is what one learns today.  It is an instrument but also the evidence of the striving toward fulfillment, toward the end of striving, toward the "right" answer "correctly" derived.  It is in this sense a moral (and for secularists a Leninist) project.  But at the same time it is inherent in the ideology of Enlightenment science that saw in all things (including the social (now understood itself as a "science" in its own right) the right answer to identified problems. Together this Fides et Ratio (faith ad reason) provided the foundation for the sense that law did not merely strive express and apply social or communal custom (changed either as a matter of course as generations of its members were born, lived and died) or by its political instruments established through public and private organs. Rather law was the expression of social perfection.

4. In the US:
This ideal state can realized by embracing truth as it exists outside of an individual – either in divine command (or grace, or law) or in the inspired will of the community at its most potent. It is (or apes) messianism, with or without religion, “What I call messianicity without messianism is a call, a promise of an independent future for what is to come, and which comes like every messiah in the shape of peace and justice, a promise independent of religion, that is to say universal.” (Derrida and De Cauter 2006: 268-269). That is, perfection arrives from the top (the divine or the apparatus of government) down (the people and their customs) or from the bottom up, that is organically constructed as an articulation of the community's aggregate beliefs and behaviors. How that occurs, through judge or legislature, is the substance of the philosophy of law. (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy,' supra citing Jacques Derrida & Lieven De Cauter. ‘For a justice to come. An Interview with Jacques Derrida’ (Lasse Thomassen (ed.), The Derrida-Habermas Reader, Edinburgh: Edinburgh U. Press, Edinburgh, 2006:259-69).
As Justice Scalia was fond of saying: “Modern governments . . . are thought to derive their authority from the consent of the governed, and the laws they prescribe are enacted by the people’s representatives. Such a system is quite incompatible with the making (or the “finding”) of law by judges—and most especially by unelected judges.” (Scalia, Antonin. “Book Review.” Reviewing Steven D. Smith. Law’s Quandary. Harvard University Press, 2005. First Things 157:37-46 (2005), p. 40 ). The apparatus of state thus serves as the means of a perfection the measure of which is its constitution and the guardian of which remains the judge.
5. The consequences are obvious.  Judges serves as the instruments of perfection.  They drive perfection in their own right.  Tough they share that authority with the political branches.  All reject the notion, now ancient and obsolete, that the purpose of law (and the state as its guardian) is to prese4rve the customs and traditions of the community, rather than to guide the people toward states of perfection consonant with  the ideologies, morals, religions, or determinism of its engineers. 
For Americans, the basic question of philosophy is more often reduced to who, rather than to what, and how rather than why. From common law theory, to liberal positivism, legal realism, natural law and critical theory, all seek to serve as the mechanics of a singular perfectibility. These diverse mechanics provide the structure and context through which the ascendancy of different visions of the apotheosis of reason in perfection can be achieved , an American religion without religion. (Caputo 1997: 116). The contests over the control of its mechanics are what keeps American jurisprudence lively, a playing out as the endless battles over form. (Larry Catá Backer, 'The Mechanics of Perfection: Philosophy,' supra).
6. The reference to engineers is not careless.  Perfection, tied to scientism, produces a society with a preference for data, data analytics, and ultimately a perfect intelligence capable of bringing and maintaining the good order of perfection.  IT is only a small step from the embrace of perfectionism as the ideology of law, to the embrace of perfect data engorged processes for the maintenance of the perfect social order. It is odd, then, that a society obsessed with perfection would fuss about the rise of a data order that by surpassing law will represent its final apotheosis into scientific perfection. But then, that fussiness is not about the transformation itself, it is about the power to control the process of perfection and to serve as its guardians.  Who becomes the praetorian of artificial intelligence, of a culture that "listens to the science," in the social sphere, becomes (they hope) the priests of law, society, and the state, perfected.   Justice Frankfurter's critique of Swift v. Tyson has not ironically enough become the foundation for the present intellectual and moral order of this state. ( Law was conceived as a ‘brooding omnipresence’ of Reason, of which decisions were merely evidence and not themselves the controlling formulations. Accordingly, federal courts deemed themselves free to ascertain what Reason, and therefore Law, required wholly independent of authoritatively declared State law.” (Guaranty Trust Co. v. York, 326 U.S. 99, 116 (1945)).
7. Yet one ought to be left wondering whether the search for perfect vessels for the attainment of perfection ought to be reconsidered. It is likely well too late for that.  The American elite of all factions have deeply committed to the present ideology in this era of the development of the United States.  For good or ill they have determined that perfection is a state to be sought, that each of them have the keys to the kingdom of perfection, and that they can administer the appropriate doses of perfection to an ignorant and sometimes unwilling polity to help them achieve that state of perfection overseen by the perfect guardians of that perfection in the judge and the law.One is reminded of the "Pax" from the movie Serenity--a drug that was developed to help humanity attain a state of perfection.  It worked, but only too well.  To reach perfection is to reach the end of things.  And almost everyone lost the will to live and just died.  But a small fraction of the population reacted badly, as Reavers they transformed into horrible creatures that incorporated virtually all of the evils against which the drug of perfection was meant to "cure." Perhaps the lethargy of perfection is as great an enemy as the imperfections of society against which one must always strive to correct (but whose practices one cannot perfect).
8. And thus the tragedy of the circus that appointment to the courts (especially the Supreme Court) has become in the United States. American society has moved from the embrace of plausibility grounded in core principles derived from custom and tradition (including those expressed in constituting documents) to perfectibility. Law that was once understood as the means of expressing and protecting the customs and traditions of society is now (perhaps necessarily) an instrument of societal perfection.  Judges who were bound to fidelity to these customs and traditions within an institutional community of judges each contributing to the discipline of the community of judges, have in turn become the vessels through which perfection is achieved. Yet perfection is a moral-theological project expressed through political action and in law.  As a consequence one cannot avoid politics in appointment--and to pretend that such selection contests are or ought to be focused on talent or qualification betrays the fundamental commitment to the pursuit of perfection. One now seeks positive exponents of different schools or factions of "what must be right" expressed through the neutrality of judgment, but hiding nothing of the political-ideological basis on which choices  are (must be) made among plausible alternatives. As long as Americans expect perfection--the right decision--they will continue to construct (perhaps as it should be--their courts as legalized politics.  To present it as something either neutral or dispassionate or otherwise unconnected to quite specific factional ideologies makes a mockery of what has become the American judiciary. 

9. The only core principles that are left, then, focus necessarily on the way the judge sees her role.  Not in terms of fidelity to substantive ideologies, but in terms of the extent to which the judge is willing to defe4r to the discretionary exercises of power of private individuals or state organs. But that goes to the allocation of power rather than to the ideologically correct approach or decision in any case. Related to that is the issue of the locus of law.  Is law confined to its text, or does text merely provide clues to the intent of the law maker (and thus intent rather than text is law).  These are normative questions, of course--and ideological ones at that.  But they focus on the ideology of judging rather than the to the factional embrace of the relentless search for the "right" decision by its perfectibility judge.

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