View in browser

About the Supreme Court, the New York Times wants to know “whether the court’s decisions are out of step with public opinion.” Here is the answer to that question:

It does not matter.

The law says what the law says. The job of the Supreme Court is to apply the law, not to make up the law, not to reform the law, not to ensure that the law accords with public opinion. If public opinion is opposed to the law, then the public can elect new lawmakers and write new laws. It is not up to the Supreme Court to do that for them. If representative democracy means anything, it is that the law is made by lawmakers who are elected by the people and democratically accountable to them. 

Not that the New York Times-reading progressive public actually cares what public opinion says. Our progressive friends have been perfectly happy to use the Supreme Court to overrule public opinion—and the law—for years, as long as doing so meant they got their way without having to win legislative elections and pass new laws. Public opinion was not in favor of the abortion regime that Roe began to impose in 1973—nor did public opinion favor that regime thereafter—but nobody worried very much about that. The same with same-sex marriage and Obergefell and many other “social issues” decisions. Most Americans believe that athletes should be required to compete on the basis of biological sex rather than gender self-identification, but don’t expect to see any demands that we defer to public opinion when that comes in front of the court. 

More to the point: Public opinion should not come into play when those questions are the subject of statutory or constitutional dispute. If we were simply to be governed by public opinion, then we could do away with the Supreme Court entirely—along with the Constitution and even written law itself. 

Why not just give the people—pardon me, Us the People—what we want? 

There are many good reasons for ignoring, frustrating, or overruling what the people say they want. For one thing, the people often are wrong, often motivated by hatred, fear, and envy to demand idiotic and tyrannical policies, and, in those cases, the people have to be stopped. That is why we have the Bill of Rights—the Constitution can be amended, but, as long as the First Amendment is there, the people don’t get to take away anybody’s free-speech rights, freedom to worship, etc. There are many progressives who wish the Second Amendment were not there and did not say what it plainly does say, and many of them have offered rafts of intellectually dishonest reasons why they and their political allies should be allowed to run roughshod over the Bill of Rights—just this once! for the children!—but, blessedly, the Supreme Court has not permitted them to gut their fellow Americans’ civil rights. There are many among us who believe that our intellectual-property law is wrongheaded and unjust, and they are welcome to organize and agitate and electioneer to change the law; but, as long as the law says what it says, it is not the job of the Supreme Court to consider whether the law is popular, or even whether it is just. The Supreme Court is not in the justice business—it is in the law business. Bringing the law into accord with public opinion—or justice, which is not the same thing—is the business of Congress and the state legislatures, not the business of the courts. 

Nobody wants to live under a dictator. Bizarrely, some Americans want to live under nine of them. But a dictator—or one-ninth of a junta—is precisely what a Supreme Court justice is if he refuses to be bound by the law. Textualism is, at heart, not an ideology or a system of legal interpretation—it is simply an acknowledgment that the law says something and that its meaning is independent of the private views, moral sensibility, or political commitments of a judge. 

That our progressive friends have trouble understanding that has produced some amusing consternation in this most recent Supreme Court term. Fresh after savaging the court as an illegitimate institution after failing to get their way in Dobbs, progressives have discovered strange new respect—however short-lived it is going to be—for some of the court’s so-called conservatives. FiveThirtyEight marvels that “two Supreme Court conservatives just saved the Voting Rights Act,” as though we should be surprised that John Roberts and Brett Kavanaugh did not set aside the rule of law to do something that gives Alabama Republicans their preferred outcome. (That surprise is self-indicting.) In what Mark Joseph Stern of Slate calls a “second surprise victory for progressives,” Justice Amy Coney Barrett wrote an utterly conventional opinion in the Indian Child Welfare Act case, joined by Roberts and Kavanaugh along with Neil Gorsuch and what Stern calls “the three progressive justices.” 

And there are “three progressive justices.” It is the progressives on the court, not the conservatives, who most reliably vote as a political bloc. (For example, the conservative-majority court that overturned Roe reached the “conservative” decision, as reported by NPR, only 62 percent of the time. You’d think a majority that was simply imposing its political preferences would score at least two out of three.) A dedication to reading the text of the law does not ensure that every textualist judge will come to the same conclusion; a dedication to delivering one’s political allies whatever outcome they desire does ensure progressive activist judges very often all will come to the same conclusion. There is no world in which Sonia Sotomayor does not read the Democratic Party line on abortion into the Constitution, irrespective of what the document actually says. The two purported arch-conservatives in the Supreme Court’s recent history—Clarence Thomas and Antonin Scalia—disagreed about some big things, notably the federal government’s power to regulate marijuana and issues related to due process for war-on-terror targets designated enemy combatants. If Robert Bork had been on the court, you can be sure he would have disagreed with both of them from time to time. 

Even Nina Totenberg has noticed that the progressives on the Supreme Court are more inclined toward bloc voting while the so-called conservatives are more inclined toward intellectual disagreement. If your bookie took bets on how individual justices were going to vote in any given hot-button case, you’d make more money betting on the progressives, who are predictable. When it comes to their most important political commitments, they sometimes have reached their decision before the first arguments are made. 

If you are worried about the legitimacy of the Supreme Court, that’s your problem—not the fact that progressives sometimes (sometimes!) don’t get their way. 

But legitimacy is a lot like norms—everybody is worried about it until it becomes inconvenient. The Biden administration ran as a return-to-normal, return-to-norms proposition—and those of us who believed from the beginning that this was insincere horsepucky have been vindicated. Take, for example, the administration’s Hatch Act violations. I myself do not care very much about the Hatch Act, which purports to limit the amount of politicking government employees do on government time; further, I am not sure that I agree entirely with the Office of Special Counsel’s ruling that the White House’s political rhetoric—specifically, its repetitious use of the qualifier “MAGA” to characterize Republican opposition—amounts to electioneering on the taxpayers’ dime. But the question isn’t whether I think this is a big deal or whether Joe Biden thinks it is a big deal—the OSC has made its ruling, and the White House has decided to ignore that ruling. 

Everybody cares about norms and procedure and rules and all of that—until the ref makes a call that goes against your team. 

Nobody in the White House cares about the Hatch Act, just like nobody in the abortion-rights movement cares about what the Constitution actually says about abortion—they care about having their way. 

In that, “MAGA” Republicans and run-of-the-mill Democrats are a lot alike. 

Beating out Bud Light? ¡Si, se puede!

During an earlier, more optimistic phase of my writing career, I kinda-sorta imagined something a lot like what we would now call “cancel culture,” and I thought it was a pretty good idea. Specifically, I was looking for ways in which we might use voluntary, opt-in, market-driven and association-driven techniques to substitute for formal regulation. I had in mind the famous Montgomery bus boycott, which was very effective on economic grounds, but which did not actually persuade the bus company to end racial segregation on its buses—that did not happen until the Supreme Court ruled that Montgomery’s bus-segregation rules were unconstitutional. In spite of the considerable economic damage inflicted by the boycott, segregation endured. 

Organizing the boycott took a tremendous amount of work and imposed considerable transaction costs on the boycotters. The necessity of organizing carpools and alternative means of transportation created costs and vulnerabilities for the boycotters. It has been estimated that upward of 90 percent of the black bus-riding population honored the boycott, but from time to time there were those who did not, because the personal cost of doing so was too high. (That is entirely understandable—solidarity always has its limits.) But it seemed to me, at the time I was writing The End Is Near and It's Going to Be Awesome that modern personal-financial tools could be tweaked in such a way as to put heavy pressure on companies that behave badly but in a way that is short of illegal. For example, you could offer a credit card that simply will not process (or will at least flag) a purchase from a company that has environmental or social policies that you would like for it to change. I don’t think that this kind of thing would have been powerful enough to deal with what the civil rights movement was fighting for, but not every social dispute or disagreement is vicious segregation in Alabama, either. 

I have, for reasons that should be obvious, had second thoughts about all of that. Not that I doubt the value of the mechanism—voluntary financial pressure from consumers really can do things that regulation cannot do and should not attempt to do. I still believe in the tool—it is the tool-users I have come to doubt. Populism on the left and right, the cancel-culture hysteria that saw Starbucks firing employees in fits of political cowardice and Lululemon apparently doing much the same, the scalp-hunting campaign to make an example of Bud Light—these things have me doubting that the American public at large can be counted on to exhibit the moral seriousness that supports the kind of free society I would like to see emerge. I’m an old hand in the gender-ideology campaign—I once got fired by the Chicago Sun-Times, a newspaper that didn’t actually employ me, for writing a piece headlined “Laverne Cox Is Not a Woman”—but the childishness and hysteria of the Bud Light episode is surely not the best way forward. 

I suppose it is a little like what I was talking about in a recent conversation with my friend Charles C.W. Cooke regarding the legalization of marijuana: The problem isn’t the weed, or the weed policy—it’s the potheads, who are determined to be a nuisance whether marijuana is legal or prohibited. Boycotts and other pressure campaigns can be useful tools for social change—but not when they are run by ridiculous and hysterical ninnies over the most trivial of grievances. 

Some of you will notice that The Dispatch has published a staff editorial on the most recent (as of this writing) Trump indictments, only the third editorial we have published. I agree with every word of it, and one in particular: “in.” The editorial reads, in part:

One of the little distinctions in English that is worth preserving is between “on behalf” and “in behalf.” 

A lawyer or another representative may act on your behalf, i.e., he may act in your stead, doing things that you would otherwise do for yourself. If you cannot make it to the annual meeting of the American Committee for the Preservation of Prepositions, you may send a representative to speak on your behalf. An ambassador speaks on behalf of his government. Etc. 

Someone speaking in your behalf speaks in your interests, as an advocate. That isn’t quite the same thing. If you have a parole hearing, your lawyer may speak on your behalf, while character witnesses speak in your behalf. Trump wanted the Georgia secretary of state to commit election fraud in Trump’s behalf—in the service of Trump’s interests. Trump certainly didn’t want him to do so on his behalf—as criminals go, Trump is an exceptionally dumb one, but he knows enough to avoid making it too obvious that a malefactor is acting in his place. 

The confusion comes from the fact that people who speak on your behalf often are speaking in your behalf as well. In fact, they usually are, though people speaking in your behalf often will not be speaking on your behalf. 

Now, some of our incontinently descriptivist friends will say that this is an overly fussy distinction, that you can use “on behalf” to indicate either condition, that there isn’t anything inherent in the words “in” or “on” that makes one expression suited to one condition and the other suited to the other. The Swiss linguist Ferdinand de Saussure wrote of “arbitraire du signe,” the notion that the sounds and spellings of words are themselves arbitrary—e.g., there isn’t anything inherent in the words cat, kot, gato, biṛāla, māo, goyang-i, etc., that is ineffably connected to the little furry creature that meows and purrs and eats the faces of elderly women who die alone in apartments packed full of felines. The basic phonemic units of language may indeed be arbitrary, but the way we organize them into systems of expression is not: John murdered Jack means something different from Jack murdered John. There isn’t any grand cosmic reason why the sentence John murdered Jack couldn’t mean that John suffered a homicide at the hands of Jack—lots of languages have word-order conventions different from those of English—but, the thing is: That isn’t how we do it. 

Different words—and different expressions—for different things. 

You should follow the New York Times’s reporting on Ukraine, including this piece. 

You can read my report from Ukraine here.

I am not on this episode of The Dispatch Podcast, but you should listen to this episode of The Dispatch Podcast. (And all of them, of course.)

President Biden seems to literally not know one end of a firearm from the other, and the effect is comical.

In the category of self-recommending items: Jay Nordlinger talks with Riccardo Muti. It is full of big things and little things, such as the fact that “Tutti per Muti” doesn’t really rhyme in Italian.

You can buy my most recent book, Big White Ghetto, here. 

You can buy my other books here. 

You can see my New York Post columns here. 

Please subscribe to The Dispatch if you haven’t. 

Sunday was Father’s Day, which I like better than I used to. But I think Father’s Day should be moved to coincide with the Feast Day of St. Joseph, who is the model father.

God bless the unreasonable men and the unreasonable women. Where would we be without them?