What Does "Reading the Opinion" Tell You?

In a speech the other day, Justice Barrett had a request of persons criticizing the Court for decisions they claim are politically- or results-driven: "read the opinion".

"Does (the decision) read like something that was purely results driven and designed to impose the policy preferences of the majority, or does this read like it actually is an honest effort and persuasive effort, even if one you ultimately don't agree with, to determine what the Constitution and precedent requires?" she asked.

Americans should judge the court — or any federal court — by its reasoning, she said. "Is its reasoning that of a political or legislative body, or is its reasoning judicial?" she asked.

I am not the first to point out the irony of this request in conjunction with the Supreme Court's increasing propensity to issue "shadow docket" rulings, nearly always in tandem with the court's ideological preferences, rarely in the context of any actual emergency that might justify expedited decisionmaking (unless one views "too many Black people voting" as an emergency -- which, in fairness, the current Court does seem to treat as a five-alarm fire). Just today, the Court issued yet another one of these decisions staying a Clean Water Act ruling with no substantive opinion whatsoever for us to "read" and assess!

Still, in concept I think Justice Barrett's plea is a fair one. We should look at the actual reasoning of decisions to determine if they're legalistic or not; and that determination should not collapse into political agreement or disagreement with the outcome. For example, I disagree with the outcome of Boy Scouts of America v. Dale, and I also think that Justice Stevens ultimately gets the better of the legal issue in his dissent, but I don't think the majority there wasn't engaged in a good-faith effort "to determine what the Constitution and precedent requires."

By the same token, when one reviews the Supreme Court's recent decision to invalidate the OSHA vaccine mandate in defiance of crystal-clear statutory text on the basis of a concocted "major questions" doctrine which still shouldn't have militated against the plain language of the statute, I absolutely think it reads "like something that was purely results driven and designed to impose the policy preferences of the majority" and that's exactly how it should be treated.

(That's the thing about rhetorical questions: sometimes, you get the other answer.)

But there's a deeper point worth making here. One of the first legal research projects I ever embarked upon dealt with how southern courts dealt with challenges by Black litigants in the Jim Crow era -- most notably, in the Scottsboro cases. From our 21st century perch, we understand the rulings of the Alabama judiciary in those cases as little more than an extension of White Supremacist inclinations -- a "legalized lynching" that happened to have the trappings of a judicial proceeding. And I think that understanding is by and large correct. However, as I point out in my Sadomasochistic Judging article, that quality is very much not immediately apparent just from "reading the opinion". The Scottsboro opinions look, in terms of stylistic presentation, absolutely normal in the way they address precedents, make legal arguments, and so forth. If they are best explained as a reflection of Alabama's "policy preferences" of White Supremacy, there nonetheless is little about them that observationally distinguishes them from a "purely" legalistic endeavor.

The presupposition of Justice Barrett's request is that one who "reads the opinions" will be able to immediately spot the difference between contestable but nonetheless legalistic judging compared to pure results-driven hogwash. This presupposition is almost certainly untrue. That's not the same thing as claiming that all judging is results-driven. It means that whatever differences there are between results-driven and legalistic judging, those differences will not necessarily be facially apparent just by reading the opinions. Indeed, any judge worth their salt should be fully capable of dressing up their results-oriented logic in the trappings of legalistic language. Sometimes they do a better job of it than others (see, again, the OSHA case). But on the whole, it is far more myth than reality that even rancid lawlessness by the court will be "marked on the body of the text."

Israel Exists. That's Reality. What Next?

"Reality is that which, when you stop believing in it, doesn't go away." -- Philip K. Dick

Israel exists. It is not going anywhere. It is not going to allowed itself to be wiped off the map, it is not going to be pushed into the sea, its denizens are not going to go "back to where the fuck they came from". Israel exists. No matter how many quotes or asterisks or decapitalizations you put in its name, no matter how much chanting and chest-thumping you might hear about how the Zionist entity's days are numbered and its collapse is imminent and Israelis better start learning "how to swim", Israel's existence is a reality. Refusing to believe it doesn't make it go away.

This fact -- the reality of Israel, the fact that it is there and is not going away -- is often cited against those chest-thumpers who every day boldly predict anew Israel's demise. It is a gesture of defiance, a nyah-nyah to those who have since 1948 promised the destruction of Israel will be any day now, just you wait. It tells people who still dream of rolling back the clock to before 1948 that they are only dreaming, and they need to snap out of their nightmarish fantasizing.

I certainly don't have any objection to this usage, but there is another implication of understanding Israel's existence as a reality that I think doesn't get the attention that it should.

If Israel's existence is reality, such that other people refusing to believe it so will not make it go away, then many of the more existential questions that sometimes loom large in discourse about Israel no longer seem as salient. When we debate, for example, the proper response to Israel's occupation of the West Bank, or the legal rights and entitlements of its non-Jewish citizens, or the valid claims that non-citizen Palestinians could legitimately have vis-a-vis the Israeli state in the event that it ends up establishing permanent formal sovereignty over the West Bank and/or Gaza, we are not having a debate about whether Israel "exists", now or into the future. Israel does exist, and, as we've stipulated, that isn't going to change. So the actual issue at stake in all these questions is not "should Israel exist", but rather "what should the state of Israel, which by stipulation absolutely does exist and will continue to exist, do in the course of living out its existence?"

It is no response to note the many, many people who continue to loudly and angrily deny Israel's existence, or who kick up dust challenging its "right to exist", or who brashly predict its forthcoming dissolution. If one actually does believe that Israel's existence is reality, then their beliefs, however passionately held, do not change reality; reality is that which, when one stops believing it, doesn't go away. Israel has not and will not go away in the face of these non-believers, this is the whole point of asserting that Israel is a reality. 

So for my part, I say let's leave the non-believers to their fantasies. The rest of us can live in the real world. This is a world where Israel exists, and will continue to exist, and so our primary salient questions are how this extant state will behave as a state today, tomorrow, and outward into the future.

The Virtues of Remembering Extremists, Near and Far

Sometimes I think the most important thing we can do keep ourselves politically healthful is to remember the existence of extremists -- both near and far from our own positions.

It's important to remember the extremists whose positions are (relatively) near one's own -- that is, persons who take the extreme version of your "side" of a given political contest -- in order to guard against the allure of purism. Being pro-Israel for example, one ignores or downplays the existence of pro-Israel extremists at one's own peril. It important to remind oneself that it is not better to adopt ever-more fundamentalist or uncompromising iterations of one's own position, and you are not a failure or a traitor for refusing to fall onto that path. Recalling and recognizing those who speak under your banner but do so in a destructive or harmful way can help dissipate some very dangerous temptations and forestall one from excusing things that are fundamentally inexcusable.

It is also important to remember the extremists whose positions are on the far side from one's own -- if only so one is not surprised by them when they inevitably do emerge. Particularly if one is feeling frustrated with one's own camp, there can be the temptation to romanticize one's opposition; going beyond the (important and correct) refusal to generalize and demonize and instead allowing oneself the delusion that there is no dangerous politics on the other side of the rainbow. The delusion is bad enough, but the real damage comes when one is forced to confront the reality -- if one isn't prepared, it is a shock of cold water that can quickly trip the unwary into spiraling down their own path of extremism. I can't tell you how many videos and screenshots I've seen from "pro-Israel" Twitter displaying the worst of terribleness from various pro-Palestinian rallies or protests, all of which style themselves as trying to shock complacent Jews out of their purported stupor. And indeed, if one hasn't prepared yourself to encounter it, it is quite a bracing sight to behold. But for my part, since I've never deluded myself that this sort of anti-Zionist extremism did not exist, I was never unduly shocked when confronted with its manifest existence. 

Keeping these things in mind allows one to keep one's head on a little straighter. Instead of retreating to pathetic denials that this sort of abhorrent politics is present, or opportunistic romanticism of why it's actually permissible or just, remembering and acknowledging the genuine existence of extremism allows one to keep a sense of perspective. Being able to name and recognize extremism as part of the story also allows one to keep a sense of proportion that it is not the entire story. 

Lesson #2 of the internet:

No matter your ideology, there will always be someone profoundly idiotic who largely agrees with you, and someone profoundly idiotic who largely disagrees with you. Neither fact should be unduly weighted.