The judiciary is beyond comparison the weakest of the three departments of power ... it can never attack with success either of the other two ... [it] has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment.
-- Alexander Hamilton, Federalist 78
"Politics," Mr. Dooley tells us, "ain't beanbag."
That means it's not played fairly by a set of rules enforced by impartial umpires. You can get hurt in politics, and no one is going to red card your opponent and eject them to the showers. Bring your razor and your baseball bat. Contract with a Russian troll farm.
Like Sartre said, "by any means necessarily."
Most politicians don't consider any horizon beyond the next election cycle. It's not their job to deliver us, no matter what they say with their high-sounding words and puffery. They mean to leverage moral pliability into a job or a career.
Over the years a lot of people have observed that Washington is Hollywood for ugly people, but that's just mean; it's probably more accurate to say that politics is show business for the mediocre.
Politicians are, like wars, a necessary evil. Maybe the best of them mean to be benign, but only a fool puts any faith in them. A petty hypocrisy is inherent in their profession; we require them to dissemble and to flatter. A statehouse is a coop for chickens that imagine themselves eagles, people who possess both a certain hubris and the willingness to pander and bootlick.
It's our fault for expecting anything from them. Of course they care less for murdered kids than Wayne LaPierre; what the hell has a murdered kid ever done for them?
Unless you're bribing them, I don't think you should have a reasonable expectation that your elected official is going to do anything for you.
My view is grounded in a certain fatalism. This is a fallen world, with intractable problems. Progress is possible, but we will not make it much better for long. The clock is ticking, and we are 30 points down. Pride is the only reason to keep fighting; the game--rigged against us from the start--has long been lost.
On the other hand, I have some faith in the law. (Maybe less today than I have ever had, but still.)
In theory, it applies to everyone. In theory, no one is above the law. In theory, no one is beneath its consideration. It is an idea, and while it may be foolhardy to have faith in human beings as individuals or tribes, we can envision noble things. The law is not lawyers and plea deals, it's not grand and petit juries comprised of peers, it's not the flawed and often feckless men and women charged with upholding it.
The law is something agreed upon, a code of human behavior. It is what is right. (Saint Augustine: "lex iniusta non est lex (unjust law is not law)".
Some people argue that the law evolves as we do, like wine, it grows more nuanced and complex with time. I think it is more like an ocean, vast and largely still unmapped, still waiting for a more complete discovery.
In a perfect world, law and politics might keep their distance. But the world is neither perfect or perfectible, and politics inevitably infects and corrupts the law, or at least the ways the law is applied in the real world.
The cynical position is that nothing is above politics, and that even the Supreme Court has always been political. (And it has, though it also occasionally surprises us with integrity.)
The cynical position is that law is politics by other means. The cynical position boils down to might makes right.
Just a few months ago, I would have argued that any attempt to expand the Court in an effort to dilute the power of a voting bloc was not only short-sighted, but doomed to fail because--despite whatever anxieties and complaints Americans might harbor in regard to particular justices--most of us think that the Supreme Court of the United States operates on a plane above the wow and flutter of petty politics.
Some of us are naive enough to believe that even partisan hacks might, on being elevated to the Court, find something sturdy and sterling in themselves. (I also used to think that being elected president might ennoble a person.)
The naive view, to which I somehow still subscribe, is that people can rise to certain situations, and when charged with fulfilling certain duties, put aside their prejudices and ignore the petitions of their friends and patrons and follow the damn law.
I still resist majoritarianism, for one of the most important missions of the courts is the protection of minority rights. I believe we need an ultimate arbiter that's unbeholden to voters or political action committees.
But I remember what Indiana congressman John Hostettler said in a speech to the Christian Coalition back in 2004:
"When the courts make unconstitutional decisions, we should not enforce them. Federal courts have no army or navy ... The court can opine, decide, talk about, sing, whatever it wants to do. We're not saying they can't do that. At the end of the day, we're saying the court can't enforce its opinions."
That was a nutty thing to say, maybe what you'd expect from a mediocre politician who once argued there was a link between abortion and breast cancer.
But he's right. What's the Court without the confidence of the American people? If this is the way we're going to go, can the currently comprised Supreme Court expect to continue to exist unmodified?
If law is just politics by other means, then why shouldn't the Court be subject to the whim and fancy of the American people? If the majority of the Court seems out of step with the American majority, if its members insist on issuing constitutional fiats which relieve a minority political party of the dreary chore of actually convincing voters to vote for their wishful policies, then why shouldn't the Court be expanded to be more representative of contemporary American thought?
It's all politics anyway, right? Which means it ain't beanbag, your Honor.
Philip Martin is a columnist and critic for the Arkansas Democrat-Gazette. Email him at pmartin@adgnewsroom.com.