JUDGING CRIMES

A view of the bench from the trenches • by Joel Jacobsen

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Judging Crimes is a blog about criminal law, violent crime and the judiciary, dedicated to making the liberal case for greater democratic control of the criminal justice system. It's a "view from the trenches" because it's written by a practitioner, not an academic or journalist. It examines the changing role of the judiciary in American society by looking at what judges actually do, rather than what they say. I know what they do because I deal with the consequences every day.

Opinions issued by judges, from Supreme Court justices on down, are justifications for the exercise of governmental power. But it is the exercise of power itself that should command our attention, not the justifications. Judging Crimes is concerned with the reality of judicial power rather than the verbal formulas used to defend it.

American law professors have long liked to say they teach their students "to think like a lawyer." Learning to think that way is a matter of internalizing certain assumptions. The practice of judging is likewise based on a foundation of shared assumptions, among them that the United States Constitution -- a document of 8,335 words, the length of a book chapter -- provides an answer to every question. Rather like a Ouija board.

These assumptions are so ingrained -- and their internalization is so necessary to the successful practice of law -- that most people who subscribe to them aren't even aware of having done so. Judging Crimes will try to engage not just with the expressions of judicial power, but with the assumptions on which those expressions rest.

Judging Crimes won't be filled with daily entries commenting on the day's events or provide a best-of-the-web welter of links. Many other blogs already do that, far better than I could hope to do. (Check out these.) Instead, Judging Crimes will contain pieces of a length that might seem long for a blog but would be short in a serious magazine. I hope to post new pieces several times a week.

319. Sock it to 'em, JB

The Supreme Court has long been in the habit of using the phrase "political branches" to describe the democratically-elected branches of government. Westlaw counts 141 SCOTUS opinions making use of that phrase. As a propaganda trick - excuse me, I mean talking point - it's comparable to the Court's use of the word "majoritarian" as a pejorative. (See post 54 and post 265.)

Not only is "political" frequently charged with a negative meaning in America ("playing politics," "politics as usual"), but calling the executive and legislative branches "political" implies the Court isn't - it's just a government agency that decides issues of "public policy." (1,805 SCOTAL mentions of that phrase.) As to any superficial definitional similarity between "political" and "policy" - look! An oyez! Three of them! Now, then, moving on to the next case, counsel ...

Our courts are even more political in a big-picture way, though. Their policies - which never, ever work out the way they're intended, anyway - are in some respects the least of it. I found a wonderful encapsulation of the meta-politics of the American judiciary in a most unlikely place: Simon Winder's The Man Who Saved Britain: A Personal Journal into the Disturbing World of James Bond. It's a book about Britain in the post-War years, and particularly during the No Future 70s, when the author was growing up. Amid much Tim Moore-style humor, James Bond is diagnosed as a nation's final instrument of post-Imperial denial. And then we come to this:

What should we make of Bond's chief, the remarkable M? He is a figure in the Bond mythology on a par with Blofeld and retains as astonishing potency. If post-war Britain had expressed its debt to Bond in a landscape dotted with temples then M would undoubtedly get a substantial building to himself (this is an easy and enjoyable game with any number of temple layouts - at its best played with a more Asian sense of duality, forces of evil or violence also getting their place: it is easy to imagine a slightly disturbing folk cult growing up around Oddjob, say, and a lovely alcove for Pussy Galore). In a sense, M is more of a religious force than Bond himself - a Jupiter to Bond's Mercury; Wotan to Bond's Loge. The books in effect make him the father of the nation, the figure who is always awake and alert and who, through silent coup after silent coup (delivered via the figure of Bond), keeps us all safe. He therefore incarnates in its perfect form the Conservative ideal: of patrician omnipotence over a silent, uncomprehending, safe, passive flock.

It was only as I read that last sentence that I realized who M reminds me of: the person the average American judge sees in the mirror.

Posted on Sunday, November 4, 2007 at 11:09PM by

Joel Jacobsen in De-democratization, Judicial self-interest, Supreme Court's role |

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