A Musical Prelude-The Supremes Waltz Into Arizona
My parents loved the opera, and inflicted (I use that word with love) on me the privilege of going with them through most of my childhood. The three of us sat in the front row of the orchestra of the old Metropolitan Opera House (front row, because I was too small to see over anyone) through several seasons of Puccini, Verdi, Wagner, Mozart, Rossini, them rapt, me trying not to wiggle. It was a very long car ride home if I wiggled.
Burned into the deepest recesses of my brain are snatches of arias, bits of melody line, the odd piccolo or oboe solo, elephants, tombs, heroes and scoundrels, turbans, togas, and harlequin hats. The opera had all types of strange paradoxes. Why would two people entombed for their love sing when there was no air? How did someone dying of tuberculosis have such a pure and supple soprano? How could Riggoleto not know what was in the bag? Who jumps off parapets?
But Dad had a solid dislike of one opera, Richard Strauss’s “Ariadne Auf Naxos.” Of course, if you had a subscription, you got what they performed, and one year, glaring at him, were tickets to Ariadne Obnoxious. “Boring, who could listen to it?” Dutifully, we went. And then he did the unthinkable. He had us walk out-in between acts, of course-he was no barbarian.
I bring this up because of a snatch of something my friend Cynical Cynic sent me, from Jonathan Haidt’s “The Righteous Mind: Why Good People Are Divided By Politics and Religion.” Haidt says “Intuitions come first, strategic reasoning comes second. Moral intuitions arise automatically and almost instantaneously, long before moral reasoning has a chance to get started…If you think that moral reasoning is something we do to find out the truth, you will be constantly frustrated by how foolish, biased and illogical people become when they disagree with you.”
This week is concert week at the Supreme Court, and it’s really a two-act drama; Arizona’s immigration law, SB-1070, handed down Monday, and tomorrow’s grand finale, Obamacare.
You and I have the luxury of going with our gut. We don’t have to be right, or rational, or, for that matter, even civil. A lot of the time, we are none of the above. We often fall into the intellectually lazy “It’s unconstitutional!!!” when what we really mean is “We don’t like it.” Any time we want, we can be like Dad, and walk right out of Ariadne Obnoxious.
The Supremes don’t have that luxury. They can’t walk out. They need to put aside their “moral intuitions” and decide based on the text of the Constitution, as amended, and precedent. In short, they aren’t supposed to engage in the sort of results-based analysis that most of the rest of us indulge ourselves in.
And that is a real problem. First of all, there are unpopular and even unwise laws that aren’t unconstitutional, just as there are operas that some people find abhorrent, while others choke up with tears of joy. The Justices are not critics-their job is “Opera, or not?” Congress, the Executive Branch, and State legislatures write the music, and the Court is supposed to decide simply whether it is constitutional music, not whether it sounds good.
The problem with that is that it flies in the face of two imperatives to legitimacy.
The first is that a decision, even if well reasoned, needs to feel empirically rational in the real world. “Citizen’s United”, with its assertion by Justice Kennedy that money will not lead to the inference of corruption, clearly doesn’t. All of us know money corrupts. We may support the decision because we think our guys can out spend the other guys, but we know it corrupts. Personally, I agree with the legal reasoning behind Citizen’s United, but I detest the result.
The second is that the Court should stay away, when possible, from the overtly political. Arizona’s SB-1070 has clear political overtones, but real Constitutional issues. Obamacare, to almost everyone, is purely political-the Supreme Court will select a winner, and the overwhelming perception is that the decision will not be based in law, but on ideology-on their individual “moral intuitions” from which they will then justify with post-intuition “moral reasoning.” In short, there will be winners and losers from the Obamacare decision, but pretty much everyone thinks the fix is in-however it comes out.
I am going to hold out some hope that this will not occur, because I believe in the importance of an independent judiciary calling balls and strikes fairly. I think the biggest challenge Chief Justice Roberts has had is in finding some areas where he can get more than five votes. He showed great skill in the Arizona case, getting a unanimous decision in favor of that part of the law that allows police to question people about their immigration status in connection with “probable cause”, but joining the “liberal” wing in striking down three other sections which made it a misdemeanor for immigrants to not carry registration documents, criminalized the act of an illegal immigrant finding a job, and authorizing state officers to arrest someone merely on the belief that the person has committed a deportable offense. Political or not, the Court decision is rational and appears balanced.
Will Roberts have as much luck with Obamacare, and does he even want to? The conventional thinking is that it’s going to be 5-4 striking down the entire law, and there are conservative commentators who have been predicting (urging) the Court to go further and go after a chain of precedents that underpin Social Security, Medicare, and Medicaid.
We should know shortly. The orchestra has been warming up, and the performers squirting their throats for this Ariadne Auf Naxos of laws. Is it opera-not the best, but opera? Or are a majority of the Justices going to walk out?