Oh Ye Liberals, Thine Courts Will Not Save Thee

While you weren't paying attention, the last of the great desegregation plans of American Public Education faded into history. And one of the great legal monuments of the 20th Century, Brown v Board of Education went with it. It happened in Boston, the home of JFK where later in the 60's and 70's, or as some say "some time ago" busing and desegregation was met with raw hatred. You can just watch that to 32 seconds and get a feel for the time, the first day of busing and court ordered desegregation, which was met with brick throwing and near riots, and platoons of riot police to enforce the court order.

Now things are a little different. Basically the Boston School Committee vote six to one to get rid of the last vestiges of desegregation busing program implemented in 1974, and instead focus on neighborhood schools. Boston's Mayor Thomas Menino, perhaps one of the most liberal mayors in the country, praised the plan as, "Tonight’s historic vote marks a new day for every child in the city of Boston..." This represents a remarkable change from the liberal ideals of the past, where large scale busing to desegregate schools was seen as a noble and achievable goal. While some liberals still call for this sort of the thing, the reality is that very few voters or politicians seem to care at all.

Looking back on the whole history of desegregation of public education in the past 50 years an interesting trend emerges. The liberal reforms enacted via the landmark Brown v Board of Education Decision led a short burst of radical, and highly controversial change, followed by a long period of roll back and retrenchment that has made many school systems as segregated now as they were 50 years ago. I'd argue that this was due to a fundamental flaw in the strategy that desegregation proponents advocated all those years ago. In short, they sought to bypass the problematic nature of public opinion and daily grind of politics and instead turn to a single decisive judicial decision to overturn a immoral and dysfunctional system. And while they did succeed in winning that pitched battle and getting the de jure systems of segregation formally ended they never succeed in changing the political, economic, governmental and social dynamics that now lead to de facto segregated public schools changed.

I'd argue that the lesson here is not to blame Obama, as Thomas Sugrue does in the link above, but to accept the reality that a judicial strategy to social change is not some panacea to our social and political ills.  Indeed if you look at the whole history of our Judicial Branch you see a profoundly reactionary group of institutions that impeded reform from the founding of the country to the 1930's.  And now this same branch is considering things like ending affirmative action in higher education.

This brings me to the marriage equality case that went into oral arguments today before the Supreme Court.  First of all, most of the predictions and "analysis" you read about the arguments are no more likely to be right than you just taking your own uniformed guess.  This is because trying to get inside the heads of Supreme Court Justices is just too hard and in reality there are a multitude of different routes the Court could take including just throwing the whole issue back to the Ninth Circuit.  In the end though, the idea of some judicial Superman coming to win the political battle over marriage equality in places like Mississippi and Utah simply is not a very sustainable strategy for long term social change.  Let alone the fact that basing a political strategy on what Anthony Kennedy may or may not do is far from a sure thing.  This is not to say it was wrong to pursue this court case, indeed it might turn out to be a good idea, we'll know more when the court rules.  But as a strategy for remaking American society it, like Brown, may prove to be lacking. 

John Roberts, Pope Benedict XIII and the King of France

In the wake of the whole Obamacare/ACA ruling new narratives have been emerging from both right and left about how the unlikely makeup of the majority decision was reached.  I’ve heard nuanced stories of Roberts joining Scalia at first and then jumping over the “liberal” bloc at the last minute for reasons unknown.  There are also some idiotic ideas that it’s some sort of master stroke that the President’s signature domestic policy accomplishment was affirmed by SCOTUS because Roberts said it was a tax, thus giving Republicans a talking point.  I guess it’s possible that the Chief Justices of the Supreme Court of the United States of America spend their time trying to devise schemes to slip good talking points for Sean Hannity into their decisions, but I doubt it.  The larger lesson I think to draw here is while we can learn about the forces acting on political actors like Supreme Court Justices or other politicians, we can never really know what goes on inside their heads, it’s just too complicated and there are just too many unknowns.  Call it the existential principle of politics.

This is not necessarily a principle unique to American democracy.  Throughout history powerful leaders have made decisions and changed in ways in high office that often times defy explanation compared to their previous views.  By the late 1300’s the Catholic Church-that is the only Church is Western Europe-had been divided for decades between two Popes, one in Rome and one in Avignon in a series of events scholars now generally refer to as the “Papal Schism”.   By the close of the 14^th Century there was an overwhelming demand to heal this wound and return to one Pope and one unified Church from both within the Church and without.  A massive series of events began in 1392 that included theologians at the University of Paris wrestling with the question of how to use scripture and theology to force two Popes—that is two representatives of God on earth—to accept political compromise (have fun with that one), a referendum on solutions that 10,000 Parisians voted on, the sudden death of the French Pope and a desperate ride that covered 400 miles in four days bearing the letter of the King of France seeking an end to the schism.  The most favored solution proposed by the University was simple; both the French and Roman Popes would mutually abdicate and a new compromise Pope would be chosen.   Not unlike picking a dark horse railroad lawyer from Illinois to head up the ticket.  The Cardinals gathered and proceeded to pick for the new French Pope one of the biggest proponents of ending the schism, Cardinal Pedro de Luna of Aragon who was elected as Pope Benedict XIII.  Barbara Tuchman in her great book on the 14^th Century “A Distant Mirror” tells what happened next:

The second French embassy heard the news on their way to Avignon.  On their arrival, the new Pope assured them of his intent to pursue every means of ending the schism and repeated his statement that he would abdicate if so advised as easily as taking off his hat, which he lifted from his head in illustration…He had accepted election only to end the “damnable schism,” and would rather spend the rest of his life in “desert or cloister” than prolong it.

De Luna of course never ended the schism; he refused to abdicate and made it worse than it was before.

So why did he do it?  Because he became greedy for power once he became Pope?  Because he never wanted to end the schism and just said he did to gain support?  Because he wanted to but kept putting it off until circumstances made it more likely he would succeed in ending it?  I have no idea; your guess is as good as mine.  An important fact about political leaders is that their reasons and motives are often too difficult to ever truly understand.  Do they mean what they say or are they just saying it to gain support?  Are their actions part of a grand scheme or merely improvisations to get through the day?  Have they changed since their election to the Holy See or confirmation to the Supreme Court?  These are questions that there are few answer to, if any.  Just look at the Iraq War and tell me why we went to war in the first place?  What did Bush, Cheney, Rummy and Wolfowitz really “want”?  What were their real goals?  Was the decision to invade the sum of all its parts, or once the push for war began did it take on a life of its own?  None less than Colin Powell's deputy Richard Haass has said “I believe I will go to my grave not knowing why we are in Iraq.”

So don’t try to find a snazzy narrative for why Roberts did what he did.  Look for trends in his decisions and forces that might have influenced him, not clever arguments or political stratagems.  What he said in his confirmation hearings seven years ago might not be all that goes on under that overgrown middle school haircut of his.

John Roberts the West Coast Offense

Okay, first blog post so here we go…

So in case you have been on the moon for the past few days, or a regular person who doesn’t obsess about politics all day long you probably heard that in a five to four vote (the four “liberal” justices plus “conservative” John Roberts vs the four “conservative” justices) voted to uphold the constitutionality of the 2010 Affordable Care Act aka Obamacare or ACA or Health Reform or a bunch of other names.  You know that healthcare bill.  One emerging point that conservatives have been boasting about and liberals fearing is the idea that while Obama may have won a big victory in the short term, he’s lost in the long term mainly because John Roberts “gutted” the idea that the Congress can use the interstate commerce clause of the Constitution to regulate all sorts of economic activity on a nationwide basis.  The New Republic’s resident wonk Jonathan Cohn summed this argument up as:

Although Chief Justice John Roberts joined his liberal colleagues in upholding the law, he joined his conservative colleagues in rejecting a key argument on the law’s behalf. In particular, he said that the mandate was not a legitimate way for the government to regulate interstate commerce.

Now he might be right.  I mean who really knows what will happen in the next 20 years?  But I think he’s wrong and most importantly I think that people like him or George Will, who will be boasting about this in his columns for the next 200 years, are thinking about SCOTUS and politics in general in the wrong way.  And in order to show you how I am going to have to talk about the San Francisco 49ers and the West Coast offense.  Please bear with me, I’m going somewhere with this, I promise.

In Chuck Klosterman’s great book Eating the Dinosaur he dedicates a whole chapter to why he loves football and a whole section to the crazy ostracized geniuses who dramatically change the sport by coming up with ideas their contemporaries think are stupid and/or insane.  The first one is:

Bill Walsh the architect of the San Francisco 49ers dynasty, who built the West Coast offense on an interesting combination of mathematics and psychology:  He realized that any time a team rushed for four yards on the ground, the play was viewed as a success.  However, any time a team completed a pass that gained four yards, the defense assumed they had made a successful stop.  Walsh understood the two situations were identical.

Got that?  Basically it means that in football you generally win by scoring the most points and you generally score points by scoring touchdowns (or field goals to a lesser degree) and you generally score touchdowns (or field goals) by advancing the ball down the field.  How that is done is less important that doing it in the first place.  The same rule applies to politics, either in a city council meeting or in SCOTUS.  If Roberts wanted to damage liberal views of Constitutional law and Obama’s domestic policy he could have delivered a crushing body blow by voting to make ACA unconstitutional.  He didn’t do that, he voted to make it constitutional.  Can a historic SCOTUS decision have broad implications that advance conservative views on the Constitution, the role of the Federal Government and domestic policy?  Of course it can.  However, what is much more important is that the law was upheld and everyone will be acting accordingly starting tomorrow.  What happened was the political equivalent of a touchdown (actually more like 50 touchdowns, at least for me).  Perhaps you can win a football game by letting Jerry Rice catch a bunch of short passes and score a bunch of touchdowns and lull the 49ers into a false sense of security.  I suppose that could be done, and I guess it might even have happened in the past.  But the far more important thing in football is points just as the far more important thing in politics is winning practical victories that enact your agenda, whether that’s repaving more streets or solving our huge healthcare problems.  No matter what legal argument people make about the danger of Robert’s decision what is more important is that a life-long conservative Republican appointed by George W. Bush voted for a decidedly liberal interpretation of what the Federal Government can and can’t do on a practical level.  Not everything is elaborate mind games or intricate strategy.  When you score 34 points in the first quarter and your opponent scores none you are in a good spot, regardless what plans they may have in store for you.