Lyle Denniston, a legal journalist who began covering the Supreme Court in 1958 for the Wall Street Journal, is not happy about how the Supreme Court is conducting its business during quarantine, insisting that the current turn-taking arrangement “harms equal status of each justice, gives the [chief justice] arbitrary power, diminishes cross-bench exchanges, promotes wool-gathering by lawyers, prizes order over depth, lets technology triumph, [and] looks amateurish. If it is thought that this is the wave of the future, I’ll take decisions based solely on the briefs. To call this ‘argument’ is to impoverish the word.”
Each item on that indictment is worth considering, but one is of particular interest: the charge that the procedures put in place to allow the justices to work remotely — the traditional open format has been supplanted by a system in which the justices ask their questions one at a time in order of seniority — “looks amateurish.” (It certainly is not a triumph of technology; technology here has won by default.) The inclusion of that purely aesthetic criterion among the substantive political and procedural complaints is not by any means trivializing. The appearance of amateurism may be the most consequential entry on Denniston’s list.
Part of our political debate is over relatively straightforward things such as who gets taxed how much and what the money is used for. Some of our political discourse is simply the noise generated by the intellectual violence of complex issues being forcibly oversimplified. But much of our disagreement is about things we rarely speak to directly, including the cultural character of the state, what it looks like and feels like, how it sounds when it talks, what its manners are like. Among the many great fault lines in American life is the one that runs between small-r republicans such as myself who, for example, see the State of the Union address as a contemptible pseudo-monarchical spectacle unworthy of a free people, and those on the other side, including members of both parties, who desire majesty in government, who can’t imagine a free people managing their own affairs without a great deal of “oo ee oo aa aa, ting, tang, walla walla bing bang.”
This is a debate as old as the United States: Poor John Adams was savagely ridiculed for his often-caricatured belief that the president of the United States should be addressed by some exalted title. Adams had entertained “His Highness, President of the United States and Protector of Their Liberties.” His preferences later escalated to “His Majesty.” (On this and much more, I recommend Richard Brookhiser’s great America’s First Dynasty: The Adamses, 1735–1918 and the very interesting The Problem of Democracy: The Presidents Adams Confront the Cult of Personality, by Nancy Isenberg and Andrew Burstein.) Adams’s worry seems quaint in retrospect: That the president would not be a sufficiently strong national figure, that he would get pushed around by the legislative branch, that his want of pomp and majesty would render him pitiable and impotent among the world’s princes.
The modern American presidency is the love child of Caesar Augustus and P. T. Barnum, no longer an administrative post but a sacral kingship. That is why our fights over it are so bitter. It isn’t that we don’t care about internal bureaucratic debates over interpretation of Section 4(b)(1) of the Occupational Safety and Health Act or things of that nature, but it isn’t the question of due process under Title IX sexual-harassment procedures that causes some people to hate Betsy DeVos. They already hated her, they hated her from the moment they saw her, and 99 percent of the Left’s tantrum about the Department of Education under her leadership is simply backfilling in a rationale for that hatred. Democrats were wrong in their insistence that conservatives’ revulsion at Barack Obama was a matter of race, but they were correct that it was not primarily a matter of policy. Barack Obama, like Donald Trump after him, was a cultural totem and a signifier. If American democracy is Lord of the Flies as presented by … READ MORE