The Limits of Empiricism

Seriously, this Sunday Review Article by Adam Liptak is perverse:

If judicial activism is defined as the tendency to strike down laws, the court led by Chief Justice John G. Roberts Jr. is less activist than any court in the last 60 years.

Nonetheless, Justice Ginsburg’s impression fits with a popular perception of the court. In 2010 in Citizens United, it struck down part of a federal law regulating campaign spending by corporations and unions, overruling two precedents in the bargain. In June, it struck down parts of the Voting Rights Act and the Defense of Marriage Act.

The court will no doubt be accused of yet more activism if it continues to dismantle campaign finance restrictions, as it seemed ready to do Tuesday at arguments in a case about limits on campaign contributions from individuals.

But these decisions are outliers when measured against the court’s overall record over the last nine years.

It is perhaps unsurprising that the liberal court led by Chief Justice Earl Warren from 1953 to 1969 invalidated federal, state and local laws at almost twice the rate of the Roberts court. But the more conservative court that followed, led by Chief Justice Warren E. Burger from 1969 to 1986, was even more activist, striking down laws in almost 9 percent of its cases, compared with just over 7 percent in the Warren court and just 4 percent in the Roberts court. The court led by Chief Justice William H. Rehnquist from 1986 to 2005 was also more activist than the current one, at 6.4 percent.

But that is, of course, a ridiculous measure. Because the question is not merely how many statutes the Court strikes down, but whether it is enacting a political agenda, as opposed to appropriately enforcing constitutional boundaries in so doing.

Let me unpack that a bit. Brown v. Board of Education was a case that applied the Fourteenth Amendment's Equal Protection Clause to strike down state laws that required African-American children be educated separately from white children. It struck down laws that created a legally mandated, state enforced apartheid. Even though Brown was the decision that sparked "Impeach Earl Warren" campaigns throughout the South, the fact is that I have not ever seen a persuasive argument that Brown was wrongly decided as an application of the Fourteenth Amendment. I have seen critiques of how the Court distinguished its earlier "separate but equal" cases into oblivion, as being less intellectually honest than just admitting they were wrongly decided, but no reasonable view of the Fourteenth Amendment exists under which state enforced apartheid can stand.

Yet, under Liptak's approach, Brown, faithfully applying the text Fourteenth Amendment, is a data point for determining the Warren Court was a judicially activist court.

Just as would be Lochner v. New York, which found that state maximum hour laws violated the "due process" clause of the Fourteenth Amendment, which, the Court found violated because

Under that provision, no State can deprive any person of life, liberty or property without due process of law. The right to purchase or to sell labor is part of the liberty protected by this amendment unless there are circumstances which exclude the right. There are, however, certain powers, existing in the sovereignty of each State in the Union, somewhat vaguely termed police powers, the exact description and limitation of which have not been attempted by the courts.

One must, I suppose, admire the sheer brass of Justice Peckham's sniff at "somewhat vague" state powers, which comes almost in the same breath as his declaration that a provision which allows for the deprivation of life, liberty, and property as long as "due process of law" is afforded acts to categorically preempt a statute regulating the hours of work. No such limit on state power exists in the text; the Court simply made it up, because the majority disapproved of the legislation.

That both decisions--one plainly enforcing the Constitution's terms, and the other patently grafting onto the text a legal principle that cannot be found in it--equally count in determining the "activism" of the Court at a given time shows one of the limits of quantitative empirical analysis. Not all decisions striking state (or federal) legislation are equally reflective of activism. Some are simply correct enforcement of the constitutional boundaries, while others are clearly political acts, overriding majoritarian decisions on a flimsy basis. The great majority, of course, are not so clear cut.

You'll note that I am not addressing any controversial cases here; my point tonight is not to argue for my vision of constitutional interpretation against, say, that of John Roberts or William Rehnquist. Indeed, there are cases where I would agree that liberal justices have been guilty of judicial activism--William Brennan, and, for that matter, Thurgood Marshall, both of whom I admire in many ways, in death penalty cases glossed over the fact that the death penalty is expressly referred to in the Constitution; it's a little hard to plausibly argue that it inherently violates the document that refers to it approvingly, even though I agree with them that it is bad public policy. (A better argument, one more grounded in the text and facts, is that of Jed Rakoff, that our current system fails to afford due process in capital cases. That I find entirely persuasive.)

Rather, my point is that the numbers don't provide the essential data; a decision can only constitute judicial activism in any meaningful sense if the Constitution does not, reasonably interpreted, proscribe the statute deemed to violate it.

"My life is run his compass": The Donmar Julius Caesar

This afternoon, I saw the Donmar Warehouse all-female production of Julius Caesar at St Ann's Warehouse in Brooklyn. I really think that, if anything, the Times review was not laudatory enough.

From the moment we audience members were herded into a bleak, cavernous receiving room, hemmed in by guards and watched as if not entirely to be trusted, the production's conceit that we were attending a production at a women's prison was credibly and consistently maintained. At various times, that conceit surfaced, whether to allow for a moment of humor (perfectly played by Harriet Walter, who starred as Brutus), or to infuse a cruel intensity to the Cinna the Poet scene, the conceit served the play throughout, adding layers of meaning.

The cast was remarkable; without wishing to dispraise any member, I was especially impressed by Jenny Jules's Cassius and Susan Brown's Casca. And Claire Dunn, doubling effectively as Octavius and Portia, took two roles that can, if not handled just so, seem weak in comparison to the higher octane characters on stage, and made them formidable in different ways. (Also, she speaks verse so naturally that it seems utterly spontaneous, and her own.) Not to mention Cush Jumbo's manipulative, sometimes epicene, sometimes steel-hard, Mark Antony, who drew laughs of recognition of the various rhetorical moves in the famous "Friends, Romans, Countrymen" speech without losing any of its intensity. She neatly let us know that she knew that we knew all of the various manipulations she was performing--and dared us not to fall for them, anyway.

But, I must confess, for me the play belonged to the two titanic figures at its center. Harriet Walter's Brutus was superbly a man of honor, and not a pompous windbag (as the role can degenerate into); she inhabited so completely the inmate inhabiting the Roman that it was hard to know where one began and one ended. Ms. Walter's face was drawn, ascetic, and strong throughout; she used her lanky physicality to create both a dangerous woman and an equally dangerous man, each of whom was haunted by conscience.

And Frances Barber's Caesar? Deglamorized by the conceit, Ms. Barber was by turns jovially bullying, charismatic, commanding, and cruel. She depicted a Caesar whom Ms. Walter's Brutus could truly love--and yet see as a tyrant "in the egg." Her calling out of Cassius, her effectively jocular strutting with her gang, all carried absolute conviction--but nothing more than her last laugh before uttering the play's most famous line.

After the doors had slammed, with the inmates back in lockdown, but before the curtain call, a lone audience member strayed across the stage area in a motorized wheelchair. The cast came out as she crossed to receive a standing ovation. Brutus gracefully disengaged and avoided the lady; Julius Caesar paused, checking his advance to let her pass, with the sort of benevolent, if dangerous, smile Cassius was wont to receive earlier on.

Now that's acting.

Two Fat Englishmen

I have recently been reading with enjoyment some of the novels of Simon Raven. I have also enjoyed a fair amount of the novels of Kingsley Amis, especially The Green Man and The Old Devils.

Amis, like Raven, lived an unconventional life; bibulous, with complicated romantic entanglements, and a level of self-indulgence that cannot have been good for either of them. Amis was by far the bigger figure in their day, though Raven matched him for wit, if exceeding him in snobbery. Still, they both left behind interesting literary remains--novels that are of their time, but still work, and have a certain louche charm to them that most writing today lacks.

Anyway, you can imagine my enjoyment of the spectacle of Raven interviewing Amis:

Oh, My Giddy Aunt!

...as Patrick Troughton was apt to say as the Second Doctor; two complete "lost stories" have been found; the famous James Bond pastiche, The Enemy of the World and the proto-UNIT story (introducing Nicholas Courtney as Col. Alistair Gordon Lethbridge-Stewart, better known as the Brigadier (he got promoted), or just the Brig.

Here's the trailer for Enemy:



And here's the trailer for Web:



Available on iTunes, eh?

Ah, well. My digital library groweth apace.

What a lovely 50th Anniversary find!

"Christ is in the Corridors Here"

Today I started the Clinical Pastoral Training portion of the deacon formation program. I have no intention of writing about it in any detail, but I did want to say that my first day was not what I expected at all--there were many moments of grace, and an incredibly powerful moment in which I prayed with somebody, as requested, and we grasped hands.

Now, extemporaneous prayer with strangers is not my forte. But today, the words flowed, and God's grace was in the room; I felt it like a physical presence.

The Catholic chaplain put it best, when we spoke at the end of my shift. "Christ is in the corridors here," he said. I believe that; I am awed by the courage, the good humor, and the devotion of those I met today, and those with whom I am working.

Redrum Redux

I have to confess that in this conflict between Stephen King's and Stanley Kubrick's visions of The Shining, I am squarely on the side of King's:

It’s no secret that Stephen King dislikes Stanley Kubrick’s film adaptation of his 1977 novel, “The Shining,” but now that King is publishing a sequel, “Doctor Sleep,” he’s being asked once again to explain why. “I felt that it was very cold, very, ‘We’re looking at these people, but they’re like ants in an anthill, aren’t they doing interesting things, these little insects,’” is what King said recently when a BBC interviewer asked him about the film. He also described Kubrick’s characterization of Wendy Torrance, played by Shelley Duvall, as “one of the most misogynistic characters ever put on film. She’s basically just there to scream and be stupid. And that’s not the woman I wrote about.”

Kubrick himself, and the film version of “The Shining” in particular, is the locus of a certain kind of obsessive yet strangely inarticulate worship; the faithful tend to incant the words “genius” and “masterpiece” and “great” over and over again, as if those terms constituted the workings of an argument rather than its conclusion. These are people in thrall to the very idea of greatness, and they cleave ferociously to their idol. Almost as soon as a clip of King’s interview was released, a haughty but insubstantial retort came in the form of an article on the website of the British magazine the New Statesman, “Stephen King still won’t accept Kubrick’s genius” by Mark Hodge. The title sums up the entirety of Hodge’s argument. “[Kubrick's] film has usurped the book within pop culture,” he writes. “That rare achievement is perhaps something which irks King the most.”

I think these criticisms of Kubrick are spot on. Even the harsher of the two--that his depiction of Wendy Torrance is profoundly misogynistic--seems fair to me; Shelley Duvall's Wendy is in the film just to scream and be stupid, and Kubrick's other films display a streak of misogyny as well. As long ago as 1972, Roger Ebert pointed out the distancing effects used in A Clockwork Orange to minimize the violence committed by Malcolm McDowell's Alex, and other camera techniques to make Alex the seemingly most normal character in the film; Pauline Kael went even further:

The writer whom Alex cripples (Patrick Magee) and the woman he kills are cartoon nasties with upper class accents a mile wide. (Magee has been encouraged to act like a bathetic madman; he seems to be preparing for a career in horror movies.) Burgess gave us society through Alex's eyes, and so the vision was deformed, and Kubrick, carrying over from Dr. Strangelove his joky adolescent view of hypocritical, sexually dirty authority figures and extending it to all adults, has added an extra layer of deformity. The "straight" people are far more twisted than Alex; they seem inhuman and incapable of suffering. He alone suffers. And how he suffers! He's a male Little Nell -- screaming in a straitjacket during the brainwashing; sweet and helpless when rejected by his parents; alone, weeping, on a bridge; beaten, bleed- ing lost in a rainstorm; pounding his head on a floor and crying for death. Kubrick pours on the hearts and flowers; what is done to Alex is far worse than what Alex has done, so society itself can be felt to justify Alex's hoodlumism.

The violence in Clockwork only feels real when Alex is on the receiving end. Kael, like King, also accuses Kubric of coldness, describing him as "a director with an arctic spirit."

So King (and Miller) have this one right, I think; for all of Kubrick's impressive set pieces--and they are impressive--The Shining is a much better story as a novel than as a film, and when I heard King was re-visitig it, I was ...wary.

Now, don't get me wrong; I think Stephen King is a very talented writer, and that his best books* don't get the respect they deserve because he is seen as a genre writer, and as one who does not follow the rules of literary polite society. This is a pity, because Stephen King at his best is very, very good indeed--when I read Salem's Lot, I was a in my early teens, but the part of the book that grabbed me by the throat was the heartbreaking spectacle of Father Callahan, whose alcoholism so undermined his faith that he failed in the great challenge he had always yearned to confront. Or the small-town people whose lives have disappointed them, and so they turn sour, and sometimes mean. I re-read that book last year, and it stands up. And so does The Shining.

And so, I am very glad to say, so does Doctor Sleep, King's new book, a sequel to The Shining, which takes Danny Torrance from childhood to manhood. Laura Miller's praise for the book--she describes it as "among King's best books"--expresses my own view. King's revival, so many years later, of the characters from the first book--Wendy, Hallorann, and Dan himself--is extraordinarily successful, although it helps if you remember the woman King, not Kubrick, created. There is even a grace note concerning Jack Torrance--one which makes no sense if you are thinking of Jack Nicholson, but which is utterly perfect if you remember what King actually wrote.

*Speficially excludes Cujo. What the hell was the point of that, dare I say it, dog?

Round the Second Curve (By this Counting...)

So today marks la Caterina's and my second wedding anniversary. Or, we've been "together" seven + years, or (if you go back to the very beginning, that is), it is now seventeen years since I met her, and clearly thought, Yes, that one--she's special.

But two years as a married couple, two years in which we have grown together, loved, written, read, defended our various cases in court, read each other's papers and edited, and watched an unholy amount of BBC adaptations of the works of Anthony Trollope. And Downton Abbey. And Call the Midwife. And, of course, Doctor Who.

So the night began in celebration. At her suggestion, we went to Locanda Vini e Ollii, which is, simply, my favorite restaurant in Brooklyn. We feasted on olives, fresh baked bread, home made pasta, a seafood stew in a broth that was out of this world good, and desserts and coffee--all with the unique love of the pleasures of the palate that is this restaurant's hallmark. They welcomed us, and saluted our anniversary dinner, graciously.

And then, of course--because life does this--we had an emergency cat call--one of the Trap-Neuter-Return ladies with whom La C runs the Brooklyn Navy Yard cat colony needed a cat carrier for an injured unneutered feral in Greenpoint. So, fresh from work and dinner, off we went. La Caterina and her colleague and a Joe, volunteer she knew, a middle aged man who has been honored for his volunteer work on behalf of animals, tried to trap the cat, but he'd worked out what was going on, and wasn't having any. As we were about to leave, a worker at a nearby metal shop (or whatever the hell it was--c'mon it was pitch black out there, and my interest in these details was not at its peak) came over and told us that he had found a kitten--an honest-to-goodness little kitten--in the shop, and was afraid it would get hurt in the machinery or in the rat traps. La C and colleague went over with the cat carrier, and Joe and I remained behind.

The feral male came out, knowing it was safe with just us, and ate the food that had been left to entice him. Meanwhile, Joe looked me over, in one of my usual three piece suits.

"You drive a limo?" He asked.

"What?"

"Your job. You a limo driver?"

I didn't, but could have, answered, if that's what it takes.

La C had, meanwhile, picked up the kitten in her hands, and plopped its unresisting little form into the carrier. Her colleague will take it in for medical care, and the process of getting it adopted out will begin.

Me? I just drive the limo.

It's a pretty good gig; I think I'll keep at it.