A political donnybrook

The U.S. Supreme Court and the lust for power

Fred Hutchison, RenewAmerica analyst

Originally published May 20, 2005

The policy of Senate Democrats in 2005 to filibuster conservative nominees for the Supreme Court — coupled with Republicans' corresponding threat to change Senate rules to curtail filibustering — has been shaping up as a classic collision of American politics.

All such political donnybrooks are primarily fights for power. As I write this, Republicans realize that their ability to use their majority in Congress to advance their agenda will be thwarted unless they have a more friendly Supreme Court. Democrats are fighting a rearguard battle as their numbers and power wane. They have allied with the adversarial court in the hopes of blocking the rise of Republican power.

The activist court has a robust will to power and has been steadily accumulating power through its own progressively wider interpretation of its jurisdiction. Constitutional checks and balances against a perpetual and unlimited increase in court power have been little used, due to congressional timidity or constitutional ignorance.

The fight for power

The fight for power always comes first in the rough, hard-bitten world of politics. Even the Supreme Court, which is theoretically the office for legally arbitrating conflicting claims of governmental jurisdiction and power, has not been able to resist the seductive temptation to seek supreme power in the counsels of government.

Theoretically, judicial restraint, a product of quiet intellectual reflection, is an aspect of the judicial temperament. However, the intoxication of raw power that appeals to powerful primal appetites can overcome the quiet appeal to reason of the most studious judge. Only gentlemen of the highest classical virtues, or Christians who enjoy the gentle restraints of God's mighty hand, can gracefully resist the siren songs of power.

History reveals that some of the ostensibly religious wars were primarily struggles for territory and power, and only secondarily wars of religion. The Thirty Years War (1618-1648) is a classic example of this phenomenon. The aggressive and destructive pride and personal ambition of fallen man have doomed our world to incessant warfare.

To think otherwise is to ignore the whole narrative of history. Utopian pacifism is a grand lie told by those pandering to the delusions of wishful thinking. Freedom is never safe, because those scheming for power and control are forever in our midst. Free men must perpetually fight to protect their liberty with no surcease, until the end of this age and the advent of the divine kingdom.

The defense of liberty

The American founding fathers expressly designed the Constitution to keep the destructive lust for power at bay, in order to preserve a measure of sovereignty for the states and freedom for the people. Up to the time of the Founders, human freedom was rare among large nation-states where power was likely to be concentrated in a few institutions. However, freedom sometimes flourished in little self-governing republics, such the Greek city-states, the Roman Republic, the Medieval urban communes, the commercial Republics of Renaissance Italy and Holland, and the Protestant Republics of Massachusetts Bay, Calvin's Geneva, and Holland under the Dutch Masters.

During the American colonial period of British benign neglect, each colony became an essentially self-governing little republic. The American War of Independence was fought against an increasingly meddlesome British Empire seeking to curtail the powers of these little republics of free men. One historian on TV paraphrased the sentiment of typical colonial patriots in these words: "They meant that we should not govern ourselves and we meant that we should." These men were accustomed to local self-government and had no intention of giving it up.

Contrary to popular opinion, the American War for Independence was not a true revolution like the French Revolution — but a war of preservation and conservation against an arbitrary, intrusive usurpation of power. It was a conservative's war to preserve liberty, protect the established order, and repel a British invasion. It was not a radical's revolution to overthrow the establishment. In like manner, the present fight against the arbitrary expansion of the court's jurisdiction and the court's attempt to govern by fiat is a conservative's struggle against the seizure of arbitrary power by a radical elite leading to the subversion of a long established culture.

Great Britain prevailed over the power-mad continental powers of Europe in three eighteenth-century global wars, if the Napoleonic wars that were gearing up at the end of the century are included. (Yes, ladies and gentlemen, they had world wars in that century.) The first of these glorious but expensive British triumphs left the vainglorious but cash-poor and tax-hungry English king out of sorts with his cantankerous, anti-tax sons in the quarrelsome colonies. The American War for Independence was a regional side-show in the second of these great cataclysms of nations.

The strange new colonial race fancied themselves to be free Englishmen snug in their own little republics. Their English love of freedom proved stronger than their innate respect for their venerable and irritable English king. None of the great powers of the earth were able to resist British arms in the eighteenth century, with the sole exception of the American colonies. These fractious and disunited colonies were scattered piecemeal along the stormy and lightly populated North American coast, yet they defeated the world superpower of their day. The patriots loved liberty more than life, and their fathers came from some of the most warlike tribes of Europe.

Experiments in liberty

Following the American Revolution, the Articles of Confederation, the Constitution, and the Bill of Rights were political experiments in the consolidation of thirteen little republics of free men into a greater republic strong enough to withstand the great imperialistic powers of Europe. This federation had to provide for the common defense without unduly curtailing the ability of the individual states to govern themselves. The Federalist Papers of Madison, Hamilton, and Jay indicate that the Founders were just as concerned with a threat to liberty from ambitious men in their midst who would try to usurp power as they were about threats to liberty from abroad. That is why the powers and jurisdiction of each of three branches of government are carefully defined and limited by the Constitution.

The judicial branch of government is but one of the three branches that must be confined to its rightful sphere, lest the constitutional balance of power is upset and human liberty is threatened by the tyranny of arbitrary law.

It should go without saying that expanding court power beyond constitutional jurisdiction is contrary to reason and common sense. Judges are equipped by training and temperament to interpret law. When they attempt to create law or execute law, they venture beyond their sphere of competence. In the creation of law, judges fall into naive theories, improvident speculations, and impractical agendas. In the execution of law, judges vacillate between meandering equivocations and imperious edicts that are unenforceable and unobeyable. They are like Hamlet — either paralyzed in fretful indecision by the pale cast of introspection, or impulsively compelled to kill Polonius, the annoying, meddling court busybody.

Political theater

A while back, the liberal Supreme Court of Ohio impulsively tried to force the legislature to change the funding formula for state support of public education so as to favor poor school districts. Void of a scintilla of political or practical sense, the court tried to push through this fantastic power coup during a time of budgetary stress of the state and local governments. The state was already rapidly going broke from runaway Medicaid and educational spending. The political survival of the governor and many state senators was dependent upon their pledge not to raise taxes. Changing the fund's distribution formula could bankrupt some local governments.

The result of the court's impossible edict was years of political theater. The governor and the legislature pretended to comply with the court's edict by making superficial changes and adjustments. The liberal court rejected these window-dressing reforms and dumped the vexed issue back in the laps of the legislature with demands for real reform. This farce went through two cycles of political chaos and was starting into a third, when it was brought to an end last November by annoyed voters. They elected a couple of conservative judges who had no appetite for social engineering.

The role of the legislature is to create law and to appropriate and distribute funds. When the court trespassed on the legislature's turf, they threw off their solemn black robes and donned the multi-color harlequin costumes of court jesters. Intoxicated with fanciful socioeconomic theory about education and innocent of hardscrabble legislative power struggles and the painful compromises of real politics, the imperial court became the laughingstock of Ohio politics. Some Ohio conservatives labeled it a "rogue court."

A virtuous judicial temperament involves restraint, balance, and careful legal craftsmanship. When a court casts these aside in a frenzy for power or the seduction of utopian fantasies, it is an unseemly spectacle. But does the federal judiciary's persistent and unseemly efforts to usurp power signify that the judiciary is a rogue elite? Or is the lust for power so universal among a fallen mankind that we might almost expect the court to seek ever-increasing power?

Considering the baleful fall of man, if we assume that most men are rascals and authentic virtue and self-restraint are comparatively rare, we must not bandy about the phrase "rogue court" solely on the basis of the will to power by judges. Otherwise, we would have to consign most political leaders to the rogues gallery. Then we would be unable to distinguish the true malefactors from the commonplace rascals. We must consult with the lessons of history to determine if there are other grounds upon which the present court can rightly be called a rogue elite.

Cultural leadership

The tone and direction of a culture is set by cultural elites. The cultural elites of the high middle ages (1050-1400) were well-educated clerics who had the authority of the church behind them and used theology and spiritual aspirations to inspire and guide the culture. Under their cultural leadership, Europe emerged from the Dark Ages and produced a culture that was highly creative and brilliant along certain lines.

If the flowering of civilization and culture is the standard by which we measure cultural leadership, the clergy of the high middle ages were impressive. Gregory VII, Lanfranc, Saint Anselm, Hugh of Saint Victor, Saint Bernard of Clairvaux, Abbot Suger, Innocent III, Saint Dominic, Saint Francis of Assisi, Saint Bonaventura, and Saint Thomas Aquinas come to mind. The exceptional clerics of the eleventh through the thirteenth centuries were the product of a spiritual renewal that began in the monasteries, a reform movement that was sponsored by Rome, and a remarkable new educational establishment.

The cultural elites of "Baroque Civilization" (1400-1800) were gentlemen who emerged from the country gentry in England and France and from international merchant bankers in Italy and the Netherlands. "Baroque" is a term I arbitrarily borrowed from architecture, to designate the long era of the cultural supremacy of gentlemen. The American founding fathers were mostly gentlemen elites of this kind. Western society of the culturally golden centuries of Baroque civilization looked to the Baroque gentleman for leadership because of his brilliant education in the literary classics, his training in the courtly arts, his versatility, and his character qualities inspired by the literary classics.

Christopher Dawson eloquently described the transition from the cultural leadership of clerics to the leadership of gentlemen in his celebrated Dynamics of World History:

"In the Middle Ages...the possessor of highest learning was the philosophic doctor.... It was the abandonment of metaphysics and theology which undermined the position of the philosophic doctor, like that prescribed by Plato for the philosopher-king. For the philosophic doctor was in charge of the general synthesis.... [K]nowledge of ultimate matters conferred a right to decide ultimate questions.... [T]he philosophical doctor was displaced but a substitute had to be found, for synthesis requires the reconciling of all interests.... To take over his task, the dawning modernism chose the gentleman. There was logic in the choice, for the gentleman is a secularized expression of the same thing. Rulers any group must have; and after repudiating the sanction of religion, the age turned to the product of a training which would approximate religion in breadth and depth. Thus, there appears a great interest in the humanities and liberal arts, in Aristotle's program for the young ruler — Montaigne, Rabelais, Castiglione, Sir Thomas More, Thomas Elyot, and others offered regimens to train young men to deal with the interests of society. Milton's ideal of the educated man, who was ready to perform "all duties, both public and both peace and war."

Western culture continued to rise to higher and higher levels of quality, as long as the well-educated elites who provided cultural leadership saw a link between the transcendent realm and culture, and offered a general synthesis. The severing of links between culture and metaphysics did not occur at the end of the Medieval era as Dawson claims. His Catholic enthusiasm for the remarkable medieval theological synthesis and his horror at the Reformation has biased his judgment and led him to err on two points. Western culture began to turn to the gentleman for leadership during the Italian Renaissance, not the early modern era. The belief that culture has metaphysical foundations and links to a transcendent realm did not begin to fade until the eighteenth century, fully two centuries after gentlemen began to assume cultural leadership.

Beginning with the Italian Renaissance and extending through the French Enlightenment, an amazingly versatile genius was displayed by many individuals of the class of gentlemen. Leon Alberti of the Italian Renaissance, Sir Thomas More of the Reformation era, and Thomas Jefferson — who was influenced by the French and Scottish Enlightenment — are spectacular examples of the versatile genius of gentlemen leaders. Four centuries of the cultural leadership of gentlemen produced a splendid high culture in Europe, which surpassed the cultural achievements of every other civilization that went before it. The cultural superiority that the West enjoyed in the eighteenth century is politically incorrect to talk about now, but is indisputable to all but those who are ignorant of history, or misled by postmodern academics.

After 1800, cultural leadership was fragmented and displaced from its metaphysical foundations. Western culture went into a time of eclecticism, confusion, and drift. Culture and metaphysics were disconnected by the German Romantic Movement and by German philosopher Immanuel Kant, a scholar-gentlemen who wore a powdered wig and was adept in the courtly arts. At this juncture, it became impossible for any one elite group to assume general cultural leadership based upon an appeal to higher truth or a superior wisdom.

Lawyers and legislatures became culturally important. In some precincts, pastors offered a measure of cultural leadership. A rapidly growing middle class began to ineptly dabble in cultural affairs. A new bohemian intelligentsia emerged that was increasingly hostile to the church, the middle class, and the class of gentlemen. The counter-cultural intellectuals were a rogue elite, but were not widely heeded until late in the nineteenth century, except in the doleful case of the French Revolution and other destructive revolutions to follow.

After the bitter disillusionment of World War I, the intelligentsia became even more hostile to the Western cultural tradition and began its project of cultural deconstruction. This rogue cultural elite, which was once confined to a bohemian subculture, came out into the open, and some became folk heroes. After the decadent 1960's, the bohemian counter-culture seized control of academia. Professors leading the campus cult of deconstruction, feminism, and multiculturalism encouraged students to despise the literary works of "dead white European males." This morbid lust for cultural suicide is the work of a sinister cultural rogue elite. American Academia has earned the title of a rogue elite.

But has the Supreme Court earned this title?

Rogue culture

Is there a parallel between the rogue intellectuals who are cutting our ties with the Western cultural tradition and a court that ignores American legal precedent and seeks guidance from Europe? The subversive effect of discontinuity in culture is similar to the legal corruption of discontinuity in law.

During the eighteenth century, the Romantic poets, artists, composers, and writers argued that genius wells up from mystical sources within the individual and does not come from the cultural heritage. Genius is absolutely original, they said, and shuns the prototypes of earlier masterpieces. As this advice was followed more and more, the works of poetry, art, music, and literature became poorer in quality.

Philosopher Mortimer Adler did an elaborate study of the Western literary canon for Britannica's Great Books of the Western World. He found that all the authors of literary classics prior to 1900 made frequent references to great authors of prior generations and prior centuries. It was not a case of leaning upon a few favorite authors. Every literary master had absorbed the works of a good many of the literary masters who had gone before.

Adler spoke of a Western cultural phenomenon called "the great conversation." Every literary genius produces a masterpiece as he is in active conversation and debate with the other great writers he has read. Harold Bloom, literary critic and author of The Western Canon, called this process the writer's "agon," or battle. Adler produced two thick volumes in small print called The Synopticon, to trace the discussion of "the great ideas" from author to author and to document "the great conversation" that produced a great culture.

Let us compare the masterpieces that were products of the Western cultural tradition with the results of following the advice of the Bohemian Romantics. American artist Jackson Pollack pursued the bohemian theory to its logical conclusion and produced paint drippings on canvas that he dubbed "abstract expressionism." Pollock's hideous messes on canvas were entirely original and entirely free from the slightest influence of the Western Cultural tradition. One of his paint drippings looked like a soiled plate after a meal of lasagna, eggplant, collard greens, and okra. Compare Jackson's food fight with the masterpieces of Rembrandt and Vermeer. It is the difference between a rogue culture and a high culture.

It took Pollack twenty years of alcoholic and psychological dissolution to completely free himself from the Western artistic tradition that once enthralled him. He was the ultimate product of a rogue elite. In the end, Pollock became a mentally ill, depraved, and suicidal ruin of a man, whose dark sunken face and despairing blank eyes resembled a homeless person who had lived as a vagabond on the streets for years and internalized every corruption of the city.

A rogue court

Has the Supreme Court produced a judicial Jackson Pollack? To qualify for this dubious honor, a judge must be indifferent to his legal training, legal precedent, and what the Constitution actually says.

There is one ostensibly moderate judge who had a Jackson Pollock moment of judicial paint drippings. Anthony Kennedy wrote in Planned Parenthood vs. Casey (1992), "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of life." This sentence is the abstract expressionism of jurisprudence. Just as Jackson Pollack's paintings cannot be traced back to anything that went before in the Western tradition, Kennedy's surreal sentence has utterly no connection to his legal training, legal precedent, learned legal scholarship, or the Constitution.

Everyone is entitled to a momentary aberration, right? Surely Kennedy's venerable colleagues passed over his surreal fantasy in embarrassed silence and mercifully never brought up the subject again, right? Wrong. In Lawrence vs. Texas (2003), the court struck down a Texas sodomy law and cited Kennedy's surreal sentence as a precedent. A majority of the court enthusiastically embraced Kennedy's opium pipe epiphany as law!

The court is rapidly becoming a rogue elite in the business of arbitrary law. Beware of their rapidly expanding power and their increasingly whimsical approach to law. Unless their jurisdiction is trimmed by Congress and their rampant surrealism in law is sobered by the rational thought of new court appointees, their lust for arbitrary power will know no limit. If these trends follow to their logical conclusions, the ruined edifice of law will no longer protect our liberties, just as a house eaten by termites and rotted from a leaky roof will not shelter us from the rain.

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© Fred Hutchison