Justice Breyer provides inside track on Supreme Court's function
Stephen Breyer
Making Our Democracy Work: A Judge's View
NY: Alfred A. Knopf, 2010, 270 pp. hb
reviewed October 27 2010
Stephen Breyer is a Supreme Court justice. Making Our Democracy Work is his book explaining some of the major categories of consideration regarding the Supreme Court's role. Here I respond both in principle and with direct relevant experience.
Breyer does a good job in this book focussing in on what MIM calls the "principal contradiction" and how the Supreme Court tries to promote integration, ideas such as equal rights of citizens regardless of race. MIM has argued that the Supreme Court and federal government generally fail in their integration efforts, but have succeeded more in recent times thanks to increased exploitation of the rest of the world.
The superprofits from the rest of the world have made it possible to dull the national question within U.$. borders. At the moment there is a parallel debate in I$rael about the "loyalty" of Arab citizens to the state as demonstrated through mandatory military service and the like.
In the United $tates, Breyer admits that "what happened in Little Rock did not produce speedy integration throughout the South."(p. 66) One can issue court decisions and have the president's support and still social revolution may not come.
Eisenhower's sending the troops to force integration of schools is a rare instance of action something like what MIM has been talking about with the joint dictatorship of the proletariat of the oppressed nations idea. It's exactly because of the social forces preventing integration that MIM points toward national self-determination, while also supporting that the white nation reform itself to offer the best integration that it can.
At some point in failure in integration efforts a nation can arise and secede. MIM has argued for a proportional land grant. How that applies in a case like mine is difficult. Of half-Korean ethnicity, there is no obvious Korean nation to secede to, but if there were one, it would be Koreatown in New York and LA etc. Those places as of yet have no separate government. So what we are talking about is a cultural and political movement regarding the future, in which by the way, there is a much thicker generation demographically-speaking than the space that I occupy in history.
Breyer admits that the Dred Scott Supreme Court decision supporting slavery may have precipitated the U.S. Civil War. Likewise, he scorns the key Supreme Court decisions regarding the internment of 70,000 Japanese-Amerikans during World War II.
Although Breyer presents a narrative-based view of history of the law, he does draw attention to certain themes--protection of unpopular individuals, court specialization, court versus executive branch specialization and stability. Indeed, early in the book he wants to express how the court system needs to succeed to prevent armed battles in the streets.(p. xi)
Liberalism
Breyer does not call protection of unpopular groups "Liberalism," but he does note the difference between democracy and the court's job of protecting people against majority-rule.
In looking at how Georgia seized Cherokee land and initiated genocide, Breyer concludes:
"Would the president, the Congress, the states, and the public enforce, support, and follow a truly unpopular Court decision? The case suggests a strong likelihood that they would not."(p. 31)Georgia simply went around the Supreme Court.
In emphasizing this theme in the book, Breyer may seem to land in the same territory as our phony Left saying to pander to the labor aristocracy. In other words, one could issue blazing court opinions that no one would follow.
In contrast with the Kantians criticizing MIM, Breyer is calling himself a consequentialist but also a pragmatist for a "workable" democracy. MIM has argued against pragmato-individualism as the Scylla of invidious comparisons and Kantian idealism as the Charibdis.
We are consequentialists at the group level. There are two ways to attack. One is through knowledge of correlation. An example is how I implemented affirmative action at the "Michigan Daily." It was a simple matter of changing the mission of the organization to training with recruiting by transparent and non- subjective standards. Although implemented by an admitted communist, my standards never had a rejection by any of a wide range of people. Such a tactical approach will often work because Liberal narrative approaches rarely produce what the narrators think on racial questions. Something social is usually going on underneath. Most people proceed from an individual ego-centered narrative of purpose without knowledge of unconscious social influences. My recruiting policies at the "Michigan Daily" eliminated a certain informal network that dictated staff demography.
I have traveled enough to know that at most colleges the thirst for reading and writing would not sustain an independent student newspaper. In those situations a heavy hand for a faculty adviser is probably the only way to have a newspaper at all. On the other hand, no such reasoning applies in any of the top 50 universities. In writing thirsty places, due respect for student independence but also pressure toward a training mission will help with affirmative action. At the "Michigan Daily," we had a destructive battle over "quotas" where we tried to explain what was really going on in the numbers, and we lost. It's better to do what I did, which is just change the requirements without an argument over quotas.
The second approach to group level consequentialist justice is in the open, but in that case we require bringing to bear foreign interests. An example would be how the Kennedys sought civil rights to compete with the Soviet bloc. Another example would be how support of free trade also brings foreign interests to bear. On October 26, the Shin Bet made the reactionary argument that terrorists should lose their I$raeli citizenship, but that reactionary argument was still a shade better than what the politicians would come up with to appease voters. Finally, and also on October 26, when Russian Foreign Minister Lavrov argued that relations with NATO would depend on how international law comes to bear.
In actual fact, the balance of forces internationally is quite favorable to MIM despite labor aristocracy opposition to oppressed minorities within U.$. borders. The post-modernists and ideologists of crony capitalism tend to revert toward law and politician truthiness to win their battles.
Court specialization
Breyer lays out the difference among district courts, appeals courts and the Supreme Court. The Supreme Court is just the last decider, he says, not necessarily right.(e.g., p. 140) He draws special attention to the reasons why the Supreme Court has obtained some respect, in many cases by not taking on controversies and limiting its own role. This specialization and its organizational manifestations come with sociological truths underneath, but we are not commenting on them at this point.
Court vs. executive branch specialization: the CIA as an example
Breyer argues that in most matters courts have to learn to defer to the expertise of the executive branch of government. Although I have not expressed this question the same way with regard to the various competences of lawyers versus spies, the bottom line is that the best argument against my filing a federal appeal regarding my FOIA requests is that MIM people generally probably fit better into the State Department/CIA/Pentagon purview than the lawyer purview.
In fact, not only was I denied entrance to law school, but also our existing lawyers quit party and united front service thanks to White House intimidation and a barrage of lynching lies. It's not as dire a situation as it sounds, again, because the international united front is rather strong and financial and military elites are not as easily impressed by lawyers and politicians as activists are, sad to say.
Tony Blair says that FOIA is the worst thing to happen ever. As we still have bourgeois diplomacy, (and contrary to Meghan McCain) there continue to be secrets. If we succeed in achieving international socialism, we shall have to re-examine this point.
I should give the CIA and non-lawyer national security world its due. The CIA has obliquely acknowledged that the situation it entangled me in has the tendency to artificially compress the ideological spectrum. The particular situation I am in is a kind of extortion into electoral politics and diplomatic service. In response, the CIA was so good as to release some Cultural Revolution archives.
MIM upholds the Cultural Revolution in China, while the CIA and State Department have vested interests (sometimes monetary) in getting along with China's rulers that opposed the Cultural Revolution. So for the CIA to acknowledge this and release some Cultural Revolution era documents was sporting of them.
Another problem with being regulated by the CIA is that being so regulated tends to destroy one's own credibility as independent. The numbers of the situation MIM has pointed to are a steep hill to climb, with such an overwhelmingly large portion of people deeply interested in foreign relations already working for the government. It's not an accident that movies like "Bourne Supremacy" and "Red" start from the assumption that the only real dissent occurs within the CIA and intelligence community more broadly. One might even suspect whether the CIA contains the kind of patriots who will stand by idly as politicians cut the budget that supports the intelligence community.
To put this another way, in the given tangle that I am in, I have certain corruption cards against certain agencies. OK. However, the hypothetical question to pose Liberalism is how I could convert from Leninist to electoral candidate. For instance, suppose I wanted to pledge that if I were in federal office, I would be free of military contractor entanglements, because I wanted to cut military expenditures and present a Common Cause type lobby-free image. Certainly already by early college I had that goal.
Yet, it was in certain interests to drive me above-ground despite the fact that I had had a six digit readership as an anonymous editor. Such an anonymous approach saved me from reproach from all but the most ultra of ultra-Christians, because hypocrisy is not a charge to throw against someone who works anonymously.
Now these entanglements can conceivably be handled in a court. The substance of Breyer's remarks and some others' recently is that perhaps Congress should not handle such questions, because the ultimate problem is legal. This could be a dodge. The forces of reaction vacillate from the law to politician truthiness.
The next problem is that prevention of armed struggle by the intelligence community is hampered by the legal community's tendency toward negotiated shade- splitting. This problem can also be expressed as the limitations imposed by truthiness pursued by politicians. Admittedly the intelligence world is better suited to cutting through these difficulties than the court system. For example, Breyer talks about Gitmo. Yet even regarding Gitmo, there have been intelligence community interactions with MIM. So this points to how MIM can stay in a certain national security agency purview.
All in all, I agree with Breyer on the centrality of the question of how to issue a call that people follow. Because of the labor aristocracy's characteristics, the only problem is that we cannot do that analysis confined by national boundaries. MIM has pointed to the one exception in that we would probably side more with the moderation of the labor aristocracy on privacy questions than the sociological predisposition of lawyers and self-interested media elites favoring less privacy. Ultra-Christians and ultra-leftists tend to believe we can leap beyond capitalism by mere changes in lifestyle and in fact such an approach to privacy exacerbates oppression and leads toward fascism. On most any other question we see no restraining influence coming from the labor aristocracy on questions of minority rights.
By comparing among the trajectory of the labor aristocracy and other global classes and by comparing between the courts and the national security apparatus, we can determine that MIM is already on the best road forward. We lean against the labor aristocracy and toward the 90% of the world and we lean toward slugging it out with the spies and away from the lawyers. In "Red," even though the two sides shed blood, still saving the next life is an urgent task dictating clarity as to whether that life can be saved.
If the national bourgeoisie of the oppressed nations so decides, the CIA will still tend to cut deals that paper over problems despite being less so inclined than the politicians and courts. Whether the struggle within the foreign policy community goes forward or not is up to that national bourgeoisie. The international proletariat always exerts influence, but with labor aristocracy dominated imperialist countries, we are only really in business when the national bourgeoisie is on a roll.
Left to our own here in the United $tates, surely the politics of the labor aristocracy and the post-modernism of the intellectuals would crush advance. As an example, nothing is more infuriating than how the labor aristocracy representatives of pseudo-Maoism always bring forth one more uninformed persyn to "take a stand" regarding a struggle going on over a period of decades. It's always possible to find one more ignorant persyn more befitting of "American Idol" than struggle. The crony capitalists then hand out rewards for one more idiot. That's dumbocracy of the Obamautons. What we need is a role for the international majority. Since we cannot have socialism with an Amerikan proletariat right now, we promote democracy from abroad.
Breyer concludes on a note of optimism. I have credited Justice O'Connor (p. 219) once already. Let me concur with Breyer again on that point. Still, overall, we divide optimism and pessimism by class. Oddly enough, as I write this, Amerikans just expressed their lowest level of optimism regarding the government in 36 years, with only 33% optimistic.
As MIM struggles within the national security apparatus purview, we create the best conditions for the Supreme Court's advance. Should it decide to take a blazing stance for minority rights, it will happen infrequently and on account of prior ground prepared by the spies. The arguments that Breyer uses against the Japanese internment during World War II came from military intelligence people who knew where signals were really coming from.
Note:
http://abcnews.go.com/Politics/vote-2010-abc-newsyahoo-news-poll-public-optimism/story?id=11963469
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