Category Archives: Social Justice

Defining the Ex-Offender

In today’s New York Times is an Op-Ed piece entitled “Paying a Price, Long After the Crime.”  It touches upon some of the issues that have been covered on this blog concerning the increasing marginalization of ex-offenders in all aspects of daily life, from employment to education to housing, and provides proposals as to how those in power may seek to reintegrate ex-offenders into society.  On the latter point and  in addition to what the authors have proposed, I would simply add the following: that we consider a fundamental shift in our perception of the capacities and desires of an ex-offender from an individual with a presumed criminal bent to someone who, if given the chance, greatly wishes to contribute to society, perhaps (gasp!) more so than those from different (read: more conforming) walks of life.

11-11-11: Veterans Day and Armistice Day

In commemoration of those who have served their countries with honor and bravery, I post here a video clip of Martin Luther King Jr.’s speech on the Vietnam War.  I do this not to denigrate the sacrifices of those to whom this day is dedicated but rather in hope that those who have gone a different route do not take for granted and are not blinded to the circumstances which have perpetuated the scenarios and theaters that have become the breeding ground for such sacrifices.

A New Form of Apartheid

I was reading a neighborhood newsletter the other day and came across a Q & A column with someone who works at a nearby homeless shelter.  In addition to its tradition function as place of respite for the homeless, the shelter also provides education, job and housing-related support for the down and out.  Services that are more important now than ever with the country in its second worst economic decline since the Great Depression.  Real solutions for folks with real issues.

This makes one wonder why efforts of similar utility and foresight cannot be implemented on a more systemic level.  Especially by those who do little else but profess their affinity for the American people.  President Obama and his use, or, more aptly, disuse, of his presidential pardon power comes to mind here.  According to a recent New York Times report:

In the months since the end of the 2010 fiscal year, the Obama administration reduced the backlog [of clemency applications] substantially by denying nearly 4,000 petitions while granting 17 pardons. The first nine of those were granted last December, barely avoiding a record set by President George W. Bush for the longest wait for a president’s first pardons.

Here is a chart published by the Pardon Power blog comparing Obama’s clemency record with that of other Presidents:

President              Days before First Commutation of Sentence
———–              ———————————————–
Obama                1,004 … and counting
Clinton                  672
Reagan                  317
Eisenhower           282
Nixon                    282
H.W. Bush             206
Carter                    82
Ford (s)                  61
Truman (s)             54
Johnson (s)            30
Kennedy                 19

If there’s anyone who really needs a second chance of sorts it is an ex-offender with a conviction on his or her record.  As I have mentioned previously, society has increasingly little tolerance for anyone who has had any kind of run-in with the law, whether it’s an arrest for shoplifting or a conviction for robbery.  Aside from depriving individuals of jobs on the basis of something that has very little if anything to do with their ability to actually do good work, this two-tier system [i.e., those with clean records and those with criminal histories] increases the racial and socioeconomic stratification that has led to anger and unrest around the country (as seen in the Occupy Wall Street movement and its cross-continental progeny).  That such an issue fails to attract the attention of those in Government is not a surprise.  Prisoners and arrestees do not have a lobby in Washington as far as I am aware.  But ignoring the country’s prison and ex-offender population, as Obama has been doing through his disuse of the pardon power, carries with it far greater risks in terms of social inequality and public dissatisfaction.


Returning the Favor

Over at my law practice, I get a lot of inquiries about expungements.  Most if not all of the persons who ask about expungements do so because their criminal convictions have prevented them from applying for or maintaining a job.  Unfortunately, there is only so much a lawyer like myself can do in these situations; you either qualify for an expungement or you don’t.  There is rarely ever any gray area in seeking an expungement where the advocacy of an attorney would make a difference.  There are exceptions of this, of course, but they are few and far between.

These inquiries, and there are a lot of them, bring to fore the more sobering and practical aspects of a criminal conviction, and, in some cases, a past arrest.  The value and importance of employment cannot be overstated, especially for those who are looking to re-establish themselves in the free world after having been removed from it for some time.  It’s necessary from a day-to-day, pay the bills, perspective.  But it’s also important for one’s spirit and psychological well-being.

So when a prospective employer rejects a job application because the applicant has a prior criminal record, he or she is also sending a message: you may have served your time and paid your debt to society, but you are still unwelcome here. What, it might be asked, should an ex-inmate make of such a message?  On the first few occasions, not much.  He or she would probably hope for a better more humane reception from a different audience.  However, when it gets to the fifth or sixth time the welcome mat is pulled from underneath one’s feet, the feelings of despair and hopelessness start to kick in.  This leads almost inevitably to the place from where the inmate first started: jail.

On July 26th, the EEOC convened a public meeting on this very subject.  The testimony of the panelists and a complete video of the meeting can be found here.  I conclude this post by quoting  from the testimony of one of the panelists, Michael Curtin, the head of D.C. Central Kitchen, an organization, which, according to its website, “turns leftover food into millions of meals for thousands of at-risk individuals while offering nationally recognized culinary job training to once homeless and hungry adults”:

Let me finish by telling you about just one of our graduates, Dawain Arrington.

I’d like to tell you briefly about one of our graduates who spent over 17 years of his life in prison – starting when he was 11, living in SE, and was locked up for stealing food to feed his brothers while his dad was locked up for dealing drugs and his mom, a drug abuser, was out on a bender. This started a tragic but very predictable spiral into drugs, violence and gangs that landed him in jail again for what was supposed to be a 35 year sentence.

During that last stay, he realized that he couldn’t continue this lifestyle. He did exactly what we told him to. He got his GED, he got a dry wall certificate, a welding certificate and a masonry certificate. With a great deal of luck, he was released after 13 years thinking he would now be able to start over. The only thing he did for two months was apply for posted jobs requiring the skills he had learned in prison. The only thing he got was doors slammed in his face because of his record.

He told his case worker that he might as well send him back to prison now because without a job and with no prospects, he would have to turn to the life he knew that would either see him dead or back in prison. Instead, that case worker sent him to DC Central Kitchen. Now, this is not intended to be a commercial for DC Central Kitchen. He just happened to come to us because we had recruited at his halfway house and that case worker knew about our program.

Dawain wasn’t a model student from day one, but he got himself into shape and did an excellent job. We had an opening in our catering department when he graduated in 2005, and we hired him. He has been with us ever since and is now a supervisor in charge of putting out the 4800 meals we produce for the City’s shelters, half-way houses, transitional homes and other social service programs in our community. He also now has a daughter who will never have the expectation he did when he was eleven years of old: “If I live to be 21, which I probably won’t, I’ll be in prison.”

That is what a job can do. As a community, we’ve spent close to a million dollars keeping Dawain locked up. Don’t get me wrong – he did some bad things and deserved to be locked up. The chances are very good that if had not come to the Kitchen and not gotten a job, he would be costing us all money today. Instead he is putting money into our economy, helping others while he’s doing that and, perhaps most importantly, changing the expectations of the next generation and those to follow. Saving us all millions along the way.

I realize that talking about victories 15, 20, 30 years down the road is tough to calculate and maybe even harder to sell politically. The beauty of it is, it starts paying today and keeps paying well beyond tomorrow.

As I said, I have been in the hospitality business for over two decades. I can say with confidence that I have never felt more confident of and comfortable with any staff I have ever had than the staff we have at DC Central Kitchen. While we are certainly not without our issues, I trust this staff and depend on them. I honestly feel that the men and women working at the Kitchen not only see a higher purpose in our work, but they understand the value of the job. On many occasions, I have been told by members of our team that this job not only saved their lives but is the one thing that is keeping them from going back to prison or winding up dead on the streets.

I am honored and grateful to be able to be here today and I would ask the EEOC to use its authority and help remove the barriers to employment that ex-offenders face not just because it is the right or the good thing to do but because it is also the smart thing to do. Every single day I see people who have committed to changing their lives and the lives of their families. The only thing we are asking is that these individuals are given a fighting chance and are not blindly discriminated against because of mistakes they have made in the past.



Turning the Tables

Photo Courtesy of the Asia Society. From the Asia Society website: A Japanese American posted this banner on his store front the day after Japan attacked Pearl Harbor and shortly before he was sent to an internment camp. Image: Dorthea Lange, National Archives.

Please allow me the opportunity to opine on something non-Padilla related.

Georgia, my state of residence, is on the cusp of enacting legislation that would provide broad and unprecedented authority to law enforcement to question, stop and arrest residents who are suspected of being in this country illegally.  That such a measure has come to fruition should come as no surprise to most.  Hostility toward one or another unfavored class of individuals is a time-honored American tradition, especially among power-hungry politicians and shallow-thinking citizen-reactionaries.  Nor is Georgia the first state to come this close to providing the constable such unbridled authority to detain and harass.  Arizona has already gone down the same path, but with little to show for it besides rhetoric and litigation.  There is little doubt that Georgia won’t also go the way of Arizona on this soon-to-be enacted immigration measure.  It will.

But the concerns  about racial profiling and states’ rights that invariably arise when debate occurs as to the wisdom of these sweeping new laws are, it seems to me, misplaced.  Racial discrimination is as intractable a societal malaise as poverty and crime.  This is true regardless of whether the society is founded upon the principles of capitalism and democracy, as ours assertedly is, or, like modern-day Russia and China, quasi-communism and authoritarianism.  Arguing against these laws then by claiming, even reasonably, that they are discriminatory is akin to arguing against compelled homelessness because such a condition is unjust and unfair.  Most reasonable minds won’t differ on that, but some will, and if these are the same folks who control the institutions of our government, then good luck to you.

Discussion should instead focus on how the recent anti-immigrant legislation affects the viability of this country’s self-described role as the “Leader of the Free World” and its foundation as an open, democratic society.  If, according to the latest U.S. Census findings, it is true that whites will soon constitute a statistical minority in this country, displaced by Hispanics and Asians, then any official effort to discriminate and expel members of this soon-to-be majority smacks of apartheid.  If that is indeed the case, then Americans need to have a sustained, serious and open discussion as to the direction of this country and the relationship, in all senses of the word, that should prevail between a white minority and non-white majority.  I can think of at least one other country that is currently engaged in such a debate: Israel.  Only when these fundamental issues are aired in public and their implications seriously debated (I make no predictions as to which side will prevail in such a debate) can this country move beyond the current wave of reactionary, anti-immigrant sentiment.

Orwell on Immigration

I have written extensively over the past year or so about the effects of a seminal Supreme Court decision in Padilla v. Kentucky, which, aside from its constitutional underpinnings, deals directly with another matter of great import: immigration. I recently came across a thoughtful passage from George Orwell — perhaps my favorite writer of all time — in which he offers his thoughts as to the origins of anti-immigrant feelings. It isn’t a particularly novel observation; in fact, the exact opposite might be true. However, it is worth recounting here; if anything, because, as Padilla itself makes clear, immigration continues to be a topic of public interest and also because Orwell continues to impress me, and hopefully others, in his perceptiveness and prescience.

[Orwell begins by recounting a conversation that he had overheard between two relatively well-off Scots in which they attribute a number of Scotland’s problems to the influx of the Poles. Among other things, the Poles are blamed for unemployment; the housing shortage, declining morals, etc. Orwell then proceeds to offer the following thoughts on this discussion:]

One cannot, of course, do very much about this kind of thing. It is the contemporary equivalent of anti-semitism. By 1947, people of the kind I am describing would have caught up with the fact that anti-semitism is discreditable, and so the scapegoat is sought elsewhere. But the race hatred and mass delusions which are part of the pattern of our time might be somewhat less bad in their effects if they were not reinforced by ignorance. If in the years before the war, for instance, the facts about the persecution of Jews in Germany had been better known, the subjective popular feeling against Jews would probably not have been less, but the actual treatment of Jewish refugees might have been better. The refusal to allow refugees in significant numbers into this country would have been branded as disgraceful. The average man would still have felt a grudge against the refugees, but in practice more lives would have been saved.

So also with the Poles. The thing that most depressed me in the above-mentioned conversation was the recurrent phrase, “let them go back to their own country.” If I had said to the two business-men, “Most of these people have no country to go back to,” they would have gaped. Not one of the relevant facts would have been known to them. They would never had heard of the various things that have happened to Poland since 1939, any more than they would have known that the over-population of Britain is a fallacy or that local unemployment can co-exist with a general shortage of labor. I think it is a mistake to give such people the excuse of ignorance. You can’t actually change their feelings, but you can make them understand what they are saying when they demand that homeless refugees shall be driven from our shores, and the knowledge may make them a little less actively malignant.

[UPDATE: I neglected to identify the source of this passage by Orwell; it formed a part of Orwell’s regular column in Tribune, a left-leaning British periodical, and which carried the common title, “As I Please.”  This was from As I Please 70, January 24, 1947]

In Memory of Dr. King – Part II of II

As promised, I post here the second and remaining part of James Baldwin’s essay, “Fifth Avenue, Uptown,” (Esquire magazine, July, 1960) in commemoration of Dr. King’s birthday tomorrow:


Harlem circa 1987(?)

The projects in Harlem are hated.  They are hated almost as much as policemen, and this is saying a great deal.  And they are hated for the same reason: both reveal, unbearably, the real attitude of the white world, no matter how many liberal speeches are made, no matter how many lofty editorials are written, no matter how many civil-rights commissions are set up.

The projects are hideous, of course, there being a law, apparently respected throughout the world, that popular housing shall be as cheerless as a prison.  They are lumped all over Harlem, colorless, bleak, high, and revolting.  The wide windows look out on Harlem’s invincible and indescribable squalor: the Park Avenue railroad tracks, around which, about forty year ago, the present dark community began; the unrehabilitated houses, bowed down, it would seem, under the great weight of frustration and bitterness they contain the dark, the ominous schoolhouses from which the child may emerge maimed, blinded, hooked, or enraged for life; and the churches, churches, blocks upon block of churches, niched in the walls like cannon in the walls of a fortress.  Even if the administration of the projects were not so insanely humiliating (for example: one must report raises in salary to the management, which will then eat up the profit by raising one’s rent; the management has the right to know who is staying in your apartment; the management can ask you to leave, at their discretion), the projects could still be hated because they are an insult to the meanest intelligence.

Harlem got its first private project, Riverton — which is now, naturally, a slum — about twelve years ago because at that time Negroes were not allowed to live in Stuyvesant Town.  Harlem watched Riverton go up, therefore, in the more violent bitterness of spirit, and hated it long before the builders arrived.  They began hating it at about the time people began moving out of their condemned houses to make room for this additional proof of how thoroughly the white world despised them.  And they had scarcely moved in, naturally, before they began smashing windows, defacing walls, urinating in the elevators, and fornicating in the playgrounds.  Liberals, both white and black, were appalled at the spectacle.  I was appalled by the liberal innocence — or cynicism, which comes out in practice as much the same thing.  Other people were delighted to be able to point to proof positive that nothing could be done to better the lot of the colored people.  They were, and are, right in one respect: that nothing can be done as long as they are treated like colored people.  The people in Harlem know they are living there because white people do not think they are good enough to live anywhere else.  No amount of “improvement” can sweeten this fact.  Whatever money is now being earmarked to improve this, or any other ghetto, might as well be burnt.  A ghetto can be improved in one way only: out of existence.

Similarly, the only way to police a ghetto is to be oppressive.  None of Commissioner Kennedy’s policemen, even with the best will in the world, have any way of understanding the lives led by the people they swagger about in two’s and three’s controlling.  Their very presence is an insult, and it would be, even if they spent their entire day feeding gumdrops to children.  They represent the force of the white world, and that world’s real intentions are, simply, for that world’s criminal profit and ease, to keep the black man corraled up here, in his place.  The badge, the gun in the holster, and the swinging club make vivid what will happen should his rebellion become overt.  Rare, indeed, is the Harlem citizen, from the most circumspect church member to the most shiftless adolescent, who does not have a long tale to tell of police incompetence, injustice, or brutality.  I myself have witnessed and endured it more than once.  The businessmen and racketeers also have a story.  And so do the prostitutes.  (And this is not, perhaps, the place to discuss Harlem’s very complex attitude towards black policemen, nor the reasons, according to Harlem, that they are nearly all downtown.)

It is hard, on the other hand, to blame the policeman, blank, goodnatured, thoughtless, and insuperably innocent, for being such a perfect representative of the people he serves.  He, too, believes in good intentions and is astounded and offended when they are not taken for the deed.  He has never, himself, done anything for which to be hated — which of us has? — and yet he is facing, daily and nightly, people who would gladly see him dead, and he knows it.  There is no way for him not to know it: there are few things under heaven more unnerving than the silent, accumulating contempt and hatred of a people.  He moves through Harlem, therefore, like an occupying soldier in a bitterly hostile country which is precisely what, and where, he is, and is the reason he walks in two’s and three’s.  And he is not the only one who knows why he is always in company: the people who are watching him know why, too.  Any street meeting,  sacred or secular, which he and his colleagues uneasily cover has as its explicit or implicit burden the cruelty and injustice of the white domination.  And these days, of course, in terms increasingly vivid and jubilant, it speaks of the end of that domination.  The white policeman, standing on a Harlem street corner, finds himself at the very center of the revolution now occurring in the world.  He is not prepared for it — naturally, nobody is — and, what is possibly much more to the point, he is exposed, as few white people are, to the anguish of the black people around him.  Even if he is gifted with the merest mustard grain of imagination, something must seep in.  He cannot avoid observing that some of the children, in spite of their color, remind him of children he has known and loved, perhaps even of his own children.  He knows that he certainly does not want his children living this way.  He can retreat from his uneasiness in only one direction: into a callousness which very shortly becomes second nature.  He becomes more callous, the population becomes more hostile, the situation grows more tense, and the police force is increased.  One day, to everyone’s astonishment, someone drops a match in the powder keg and everything blows up.  Before the dust settled or the blood congealed, editorials, speeches, and civil-rights commissions are loud in the land, demanding to know what happened.  What happened is that Negroes want to be treated like men.

Negroes want to be treated like men: a perfectly straightforward statement, containing only seven words.  People who have mastered Kant, Hegel, Shakespeare, Marx, Freud, and the Bible find this statement utterly impenetrable.  The idea seems to threaten profound, barely conscious assumptions.  A kind of panic paralyzes their features, as though they found themselves trapped on the edge of a steep place.  I once tried to describe to a very well-known American intellectual the conditions among Negroes in the South.  My recital disturbed him and made him indignant; and he asked me in perfect innocence, “Why don’t all the Negroes in the South move North?”  I tried to explain what has happened, unfailingly, whenever a significant body of Negroes move North.  They do not escape jim-crow: they merely encounter another, not-less-deadly variety.  They do not move to Chicago, they move to the South Side; they do not move to New York, they move to Harlem.  The pressure within the ghetto causes the ghetto walls to expand, and this expansion is always violent.  White people hold the line as long as they can, and in as many ways as they can, from verbal intimidation to physical violence.  But inevitably the border which has divided the ghetto from the rest of the world falls into the hands of the ghetto.  The white people fall back bitterly before the black horde; the landlords make a tidy profit by raising the rent, chopping up the rooms, and all but dispensing with the upkeep; and what has once been a neighborhood turns into a “turf.”  This is precisely what happened when the Puerto Ricans arrived in their thousands — and the bitterness thus caused is, as I write, being fought out all up and down those streets.

Northerners indulge in an extremely dangerous luxury.  They seem to feel that because they fought on the right side during the Civil Way, and won that they have earned the right to merely deplore what is going on in the South, without taking any responsibility for it; and that they can ignore what is happening in Northern cities because what is happening in Little Rock or Birmingham is worse.  Well, in the first place, it is not possible for anyone who has not endured both to know which is “worse.”  I know Negroes who prefer the South and white Southerners, because “At least there, you haven’t got to play any guessing games!”  The guessing games referred to have driven more than one Negro into the narcotics ward, the madhouse, or the river.  I know another Negro, a man very dear to me, who says, with conviction and with truth, “The spirit of the South is the spirit of America.”  He was born in the North and did his military training in the South.  He did not, as far as I can gather, find the South “worse”; he found it, if anything, all too familiar.  In the second place, though, even if Birmingham is worse, no doubt Johannesburg, South Africa, beats it by several miles, and Buchenwald was one of the worst things that ever happened in the entire history of the world.  The world has never lacked for horrifying examples; but I do not believe that these examples are meant to be used as justification for our own crimes.  This perpetual justification empties the heart of all human feeling.  The emptier our hearts become, the greater will be our crimes.  Thirdly, the South is not merely an embarrassingly backward region, but a part of this country, and what happens there concerns every one of us.

As far as the color problem is concerned, there is but one great difference between the Southern white and the Northerner; the Southerner remembers, historically, and in his own psyche, a kind of Eden in which he loved black people and they loved him.  Historically, the flaming sword laid across this Eden is the Civil War.  Personally, it is the Southerner’s sexual coming of age, when, without any warning, unbreakable taboos are set up between himself and his past.  Everything, thereafter, is permitted him expect the love he remembers and has never ceased to need.  The resulting, indescribable torment affects every Southern mind and is the basis of the Southern hysteria.

None of this is true for the Northerner.  Negroes represent nothing to him personally, except, perhaps, the dangers of carnality.  He never sees Negroes.  Southerners see them all the time.  Northerners never think about them whereas Southerners are never really thinking of anything else.  Negroes are, therefore, ignored in the North and are under surveillance in the South, and suffer hideously in both places.  Neither the Southerner nor the Northerner is able to look on the Negro simply as a man.  It seems to be indispensable to the national self-esteem that the Negro be considered either as a kind of ward (in which case we are told how many Negroes, comparatively, bought Cadillacs last year and how few, comparatively, were lynched), or as a victim (in which case we are promised that he will never vote in our assemblies or go to school with our kids).  They are two sides of the same coin and the South will not change — cannot change — until the North changes.  The country will not change until it reexamines itself and discover what it really means by freedom.  In the meantime, generations keep being born, bitterness is increased by incompetence, pride, and folly, and the world shrinks around us.

It is a terrible, an inexorable, law that one cannot deny the humanity of another without diminishing one’s own: in the fact of one’s victim, one sees oneself.  Walk through the streets of Harlem and see what we, this nation, have become.


I would simply add that even though Baldwin wrote this piece in 1960, much remains the same with respect to the treatment of the “black man.”  In fact, one might say that things are worse, what with the country’s first black president presiding over the populace and his willful declaration of a post-racial America, as fixtures of urban and now suburban America in ghettos and racially segregated enclaves continue to evolve in complexity and size.

Day 6 and Onward

Associated Press. The uprising at Attica Prison began on Sept. 9, 1971 and, four days later ended in bloodshed as NY State troopers stormed the prison, killing 10 hostages and 29 inmates.

Today is, I believe, Day 6 of the “strike” by inmates at various Georgia state jails.  Stories on the strike have focused mostly on the inmates’ use of contraband cellphones as a means to coordinate the strike among the various facilities, as reported in the Times.  This, however, is a side issue at best, and should not detract from the significance of the strike itself and, of equal importance, the reasons why it even came about in the first place.  As to the latter, I provide here the list of demands made by the striking inmates that are currently on the table and which the Georgia Department of Corrections has to this date still refused to acknowledge:

A LIVING WAGE FOR WORK: In violation of the 13th Amendment to the Constitution prohibiting slavery and involuntary servitude, the DOC demands prisoners work for free.

EDUCATIONAL OPPORTUNITIES: For the great majority of prisoners, the DOC denies all opportunities for education beyond the GED, despite the benefit to both prisoners and society.

DECENT HEALTH CARE: In violation of the 8th Amendment prohibition against cruel and unusual punishments, the DOC denies adequate medical care to prisoners, charges excessive fees for the most minimal care and is responsible for extraordinary pain and suffering.

AN END TO CRUEL AND UNUSUAL PUNISHMENTS: In further violation of the 8th Amendment, the DOC is responsible for cruel prisoner punishments for minor infractions of rules.

DECENT LIVING CONDITIONS: Georgia prisoners are confined in over-crowded, substandard conditions, with little heat in winter and oppressive heat in summer.

NUTRITIONAL MEALS: Vegetables and fruit are in short supply in DOC facilities while starches and fatty foods are plentiful.

VOCATIONAL AND SELF-IMPROVEMENT OPPORTUNITIES: The DOC has stripped its facilities of all opportunities for skills training, self-improvement and proper exercise.

ACCESS TO FAMILIES: The DOC has disconnected thousands of prisoners from their families by imposing excessive telephone charges and innumerable barriers to visitation.

JUST PAROLE DECISIONS: The Parole Board capriciously and regularly denies parole to the majority of prisoners despite evidence of eligibility.

The Black Agenda Report has the full press release issued by civilian activists supporting the strike including Elaine Brown.

If you have a friend, relative, or loved one who is participating in the strike whether as a prisoner or as civilian, please share your story with us below.

“YOU Have the RIGHT to Remain Silent”

This is the title of a recently released “know your rights” pamphlet from the National Lawyer’s Guild.  An electronic version of this pamphlet can be downloaded here.

Equal Justice Under Law

Photo courtesy of the Brennan Center for Justice

I recently finished reading the biography of Justice William Brennan, considered one of the most influential jurists in United States Supreme Court history.   Brennan is perhaps best known as the liberal bulwark of the Court in a tenure that spanned the reign of three Chief Justices, Warren, Burger, and Rehnquist.

It is no surprise that Brennan’s liberal leanings, exhibited most prominently in his rulings from the Court, made Brennan a much-reviled figure among conservatives, who disliked him as much for his views as for his success in turning those views into law.  These critics complained that Brennan acted beyond his authority as a judge whose role it is to simply apply the law, not make it.  Instead, the criticism goes, Brennan would act as kind of a super-legislature, grafting his personal views of morality and human dignity into his judicial opinions.

Whether these accusations have any basis in fact is perhaps open to dispute.  To be sure, Brennan cannot be considered a judge whose ultimate fidelity lies in the words of a statute instead of in his convictions of right and wrong.  With a properly framed question, Brennan, I am sure, would have admitted as much if he were still alive.  Indeed, a popular story of Brennan’s tenure as Supreme Court justice is that he would invariably ask his clerks who have just come on board for a new term what the most important rule is when it comes to judging on the Supreme Court.  After fielding incorrect answers like “due process” or “equal protection” he would raise up five fingers and say that the most important rule in the Court is to attain votes from five justices in a case, which constitutes a majority on the Court.  Activist? Perhaps.  Result-driven?  Maybe so.

But focusing on such mechanisms of judicial rulemaking do nothing to advance the debate of what we consider to be a model society that is governed by the rule of law rather than one that is run by the whim of the individual.  As Brennan’s “rule of five” vignette demonstrates, judging necessarily involves the employment of policy preferences; after all, if judging was as simple and straightforward as applying the law to the facts, as is the myth most prominently trumpeted perhaps by Chief Justice Roberts (his judge as umpire calling balls and strikes analogy comes to mind), why aren’t all cases before the Court decided on a unanimous basis? And this is true whether the judge is considering the case of a derelict landlord who fails to fix a tenant’s leaky faucet or one involving more weighty constitutional issues like whether the government can prohibit flag-burning consistent with the First Amendment (it cannot).  There are exceptions to this phenomenon, of course, but the simple truth is that judges are most of the time lawmakers, only in different garb.

I would argue that the sooner we recognize and accept this, the sooner we can move on to more substantive discussions as to which judge-made laws, and the principles which underlie them, are more consistent with what we view as a just and equal society.  Fortunately, Brennan got past this a long time ago and, as a consequence, achieved unparalleled success in changing the direction of this country through his rulings, one that sought to recognize and protect the dignity of the individual above all else.