With the release of the indomitable Burmese freedom fighter Aung San Suu Kyi from house arrest, one’s thoughts naturally turn to the health of our own democracy. (Yes, it really is all about us.) Much too big a subject to venture an opinion on, as the veterinarian said about the whale. However, one might observe symptoms. I’ve been thinking about Justice Stephen Breyer’s recent remarks concerning the Supreme Court’s decision in Bush v. Gore, which resulted in curtailment of the 2000 presidential election and George W.’s disastrous tenancy of the White House. Breyer implausibly denies that it was a politically motivated decision, and congratulates the country on having knuckled under to it. The irony of purporting to preserve the rule of law by acquiescing in lawlessness seems to have escaped him. Admitting that this was perhaps the worst decision since Dred Scott, Breyer posits that the alternatives were to accept Bush’s accession to power, or to take to arms, and he is glad that we didn’t do the latter.
Of course, there was a third option – nonviolent civil disobedience. Lawyers could have refused to practice in a blatantly politicized Supreme Court until the “Justices” responsible resigned the positions they had disgraced. Lawyers could have demonstrated outside the Court until it was cleansed from within. In Pakistan, that is what lawyers did when the independence of their judiciary was on the line. They shut it down. American lawyers could have done the same.
Of course it would have been utterly unrealistic to expect that modern American lawyers would demonstrate their commitment to the role of an independent judiciary, to the institutional underpinnings of democracy, and to the rule of law in such a manner. For American lawyers such commitments are mostly superseded by their ethical obligations to pursue to the exclusion of nearly any other consideration their clients’ interests, narrowly conceived in terms of pecuniary gain or loss and advantage with regard to the specific rights at issue in the instant litigation. American lawyers do owe a theoretical allegiance to the rule of law and integrity of the judicial process, but refusing to acknowledge the authority of a corrupted court is not something they teach you to do in law school as a means of implementing this.
The end result is that Antonin Scalia, may he grow like an onion with his feet in the air and his head in the ground, will serve out his term with all the honors that normally accrue. Meanwhile, I wonder whether the life has left our legal system. Two hundred years or so ago, back when John Marshall, who merited the title of Justice, was inventing such things as judicial review, our legal system was animated by the necessity of creating its own place in a newly evolving system of government and ordered liberties. More recently, in Pakistan, the lawyers showed what it means to love the law. In modern America, not so much. Our legal system has found its place and is quite comfortable in it, thank you. I wonder if our inability to think outside that box, much less act upon such thoughts, signals a final sclerosis, the rigidity of decadence.