The News: I Am Worth More Than The Numbers On My Financial Statements
Wednesday's Child Is Full of Woe
Generally speaking, I think critical legal theory makes sound observations that are not in fact theoretical but empirical. It’s a theory in the sense that it’s a consistent set of assumptions about how to read “law” in consistent relationship to the operations of legal-juridical-carceral institutions and within the wider society. The driving assumption in critical legal theory is that studying the law itself as a body of historically accumulating texts does not actually explain the outcomes of legal proceedings within legal and carceral institutions, even though judges may reference laws in passing judgments, instruct juries according to legal rules, and so on. Instead, critical legal theory argues that that legal procedures and outcomes are fundamentally determined by social, political and economic structures that precede laws and legal procedures, and that the relevant structures are those that maintain inequality, discrimination and hierarchy.
I have a hard time understanding how anybody could argue otherwise in the face of overwhelming evidence that juridical outcomes follow patterns that are nowhere described or attested to in the law itself and that access to legal remedies is highly circumscribed by pre-existing wealth and power.
That said, however, law also works in contingent ways and it produces the possibility of contingency where nothing else can.
Sometimes that’s because the legal system’s complicity in maintaining injustice is so blatant and incoherent that it amounts to buying space on a Times Square billboard to confess. The Chicago Seven trial has been a favored subject for dramatists because you honestly could not write a more farcically unjust character than Judge Julius Hoffman. (And just to underscore the point that gerentocracy is not a new thing, Hoffman became so unprofessional in his work as a federal judge in his mid-80s that the United States District Court stopped assigning cases to him even though he remained a judge.)
In Philadelphia yesterday, a judge named Wendy Pew ruled that a police officer was right in asserting that he felt threatened by a man inside his car with its windows up who had access to a knife, and thus justified in shooting and killing the man through the closed car window only seven seconds after the police officer left his own vehicle and approached the car. All of which, yet again, is on camera. When a judge shows that physical reality is no constraint to absolving police almost automatically, the disconnect between a legal framework that says that you have to be found guilty and sentenced before the state can execute you or confine you and a judicially-blessed reality that permits the state to execute people summarily merely because an officer of the state feels fear (or says they felt it) is a powerful kind of unintended evidence that speaks loudly to a wider public.
On the other hand, legal systems have a character of their own that has some causal force, and legal systems are sometimes porous enough that they permit justice, fairness or equity that are impossible to achieve in other systems that maintain inequality. The law is sometimes the exhaust port on the Death Star, a vulnerable opening in the defenses of structural injustice. The content of the laws themselves and the procedures involved in their administration creates possibilities at times.
Yesterday was one of those times where a judge speaking plainly against a malevolent “fantasy world”, in favor of facts, cut through the indirection and indecision that has characterized at least some of the official response to Donald Trump’s career both before and after his entry into politics. The law is what enabled his analysis to have real force and gravity.
It is also the kind of contingent possibility that Donald Trump and his current allies mean to end once and for all if they are returned to power. They want to be the alpha and omega of what is ‘legal’: the law will reside only in their whim and their interests. This is where the accumulation of precedent, the exegesis of precisely worded legal texts and rulings, is the source of the law’s protective potential and its (sometimes accidental) transformational significance. It may be that law has rarely been used well in that respect, but it has the capacity to be used in such a way within it. As Judge Engoron demonstrated.
I once argued that once Trump and the tacit, implicit life of American political institutions fully joined battle, the institutions would ultimately win out. I once thought he would merely be a palace captive and be glad to be such, to just playact at being President while the adults made policy. That was a foolish expectation. Perhaps too the notion that he would eventually lose out to institutional power. But what has become clear is that among the many dangers he poses, one of the most pressing is the end of what law could do, could be, could mean, in favor of a shameless embrace of lawlessness. Law may not be what determines legal outcomes in the real world, but I’d hate to be without it altogether.
Judge Engoron's ruling is awe-inspiring---not only in its consequences but in its 'fresh' perception of how real estate businesses might aspirationally value holdings when approaching investment credit agencies, yet reach incredible, objectively-absurd property values. More than half of Trump's 'self-defenses' against legal suits have amounted to sophist excuses (like the presumption that property valuation in New York City is typically 'sold' in utterly speculative ways), to arguments that legal procedure was violated, or simply to higher court appeals, with the expectation that a recent appointee would exhibit fealty when the patron requests his favorable outcome.
What I don't understand is the (it seems to me) relative indifference with which progressive political associations have permitted the Supreme Court to undermine continually the 1965 Voting Rights Act. I'm in Alabama. In a highly surprising move, Roberts and Kavanaugh recently sided with the Court's three progressive judges to sustain the three-judge circuit court's opinion that Alabama's legislative redistricting gerrymander diluted Alabama's black citizens' rights to 'one-person, one-vote'. Neither Roberts nor Kavanaugh have every been less than enemies of the Voting Rights Act (their support of the three liberal Justices suggested a ploy to negate claims that conservative Justices were merely ruling according to partisan preferences, regardless of constitutional precedent). A month ago, Alabama's Attorney General took virtually the same Republican-gerrymandered map back for appeal to SCOTUS because he suspected Kavanaugh might change his ruling if the AG wasn't shooting for the moon---attempting to have the whole class of obvious racially-motivated gerrymanders rendered 'invisible' ('color-blind') as part of courts' large class of precedent-protected partisan gerrymanders. Alabama's Attorney General's failure to force concessions from SCOTUS that its conservative majority is all-too-willing to make is a game-changer for Alabama's black politicians and Black-belt communities. And SCOTUS' setting precedent by securing the Voting Rights Act has [potentially] immense consequences for other states with majority-white Republican legislatures seeking to overthrow established constitutional precedents. Why does this get so little acknowledgement and concern from 'progressive' politicians?