After the Tall Timber

by Renata Adler

  Jackson’s speech, and Scalia’s opinion, contained a virtual blueprint of what the independent counsel’s office, under Kenneth Starr, would become and do. But Scalia’s main argument was that the Ethics in Government Act so seriously violated the constitutional separation of powers, which, for very good reasons, vests all the Executive power (including the power of prosecution) in the president, that it violated “the absolutely central guarantee of a just Government.” “The purpose of the separation and equilibration of powers,” Scalia said, “and of the unitary Executive in particular, was not merely to assure effective government but to preserve individual freedom.” When the Court upholds as constitutional a law that creates a prosecutor outside the Executive, “this is not the government of laws that the Constitution established; it is not a government of laws at all.” “That the Court could hold otherwise demonstrates the wisdom of our former constitutional system.”

  The warning was apt and it was prescient, but Scalia thought that the greatest danger wrought by this diminution of the Executive would come from the legislative branch. “The statute,” he wrote, “is acrid with the smell of impeachment.” Also, “this is an open invitation for Congress to experiment. The possibilities are endless, and the Court does not understand what the separation of powers, what ‘ambition . . . countering ambition’ . . . is all about, if it does not expect Congress to try them.”

  Congress, of course, did “try them,” and the independent counsel himself set off the debacle of an impeachment process. But what I had not realized, what nobody so far as I know has pointed out, was a provision of the act that the majority in Morrison virtually relegates to a footnote. “Most importantly,” Justice Rehnquist said, speaking for the Court, “the Act vests in the Special Division the power to choose who will serve as independent counsel and the power to define his or her jurisdiction.” It is only Footnote Three that tells us what the newly created “Special Division” is to be. It “consists of three circuit court judges or justices appointed by the Chief Justice of the United States.” The chief justice was, as he still is, Justice Rehnquist.

  The wisdom of this arrangement is applauded in Footnote Thirteen: “Indeed, in light of judicial experience with prosecutors in criminal cases, it could be said that courts are especially well qualified to appoint prosecutors.” If that doesn’t give you a little chill, it may still shed light on the scene of the man in his Iolanthe-inspired robe presiding so affably in the Senate over a trial set in motion by a special prosecutor, whom he had selected and supervised.

  Scalia’s dissent in Morrison demolished the majority opinion delivered by Chief Justice Rehnquist. “The prospect is frightening,” Scalia wrote, and there is nothing sarcastic, or insincere, in the tone of this opinion. “The fairness of a process must be adjudged on the basis of what it permits to happen.” The appointment of “the mini-Executive that is the independent counsel,” a prosecutor outside the Executive Branch, unelected and accountable to no one, destroyed “the equilibrium . . . the Founding Fathers envisioned when they established a Chief Executive accountable to the people.” Above all, it destroyed the tension among the three branches, which limits the power of each and provides the “absolutely central guarantee of a just government.” “That is what this suit is about. Power. The allocation of power . . . in such fashion as to preserve the equilibrium the Constitution sought to establish. Frequently an issue of this sort will come before the Court clad, so to speak, in sheep’s clothing: the potential of the asserted principle to effect important change in the equilibrium of power is not immediately evident . . . . But this wolf comes as a wolf.” The only thing that Scalia seemed less than prescient about was which branch was going to “experiment.” The danger came not from the legislative but from the judiciary, not from Congress but from the Supreme Court.

  In case after case since Morrison, the Court, with majorities that now include Scalia, has expressed its disdain for the other branches, for elective officials of every kind (now including, of course, state judges), for voters, for colleagues on the Court who are not members of the Rehnquist Five. The diction of those five has been marked by an overwhelming sense of their own superiority, while the quality of their reasoning and of their decisions has radically declined. In 1997, there was Clinton v. Jones, decided by a unanimous Court. It seemed for a time that even the best of the justices were asleep, or had lost contact with life in the outside world. The decision refused to stay the trial of Paula Jones’s claims against President Clinton. The district judge had allowed discovery to go forward, but had concluded that an immediate trial, which “might hamper the President in conducting the duties of his office,” could be postponed until the end of his term.

  The Supreme Court held otherwise. While it might “consume some of the President’s time and attention,” a trial “appears to us highly unlikely to occupy any substantial amount of [his] time,” or to impose an “unacceptable burden on [his] time and energy.” There was also no “perceptible” or “serious” risk that a “trial might generate unrelated civil actions” that could “conceivably hamper the President” in the conduct of his office. Meanwhile Jones’s “interest in bringing the case to trial” and the “timely vindication of her most fundamental rights” should not be subject to delay. “Delaying trial would increase the danger of prejudice resulting from the loss of evidence, including the inability of witnesses to recall specific facts, or the possible death of a party.” Such a delay, because of the “unforeseeable loss of evidence” and so forth, would subject Jones to a “risk of irreparable harm.”

  So urgent was Jones’s complaint that she did not file it until two days before the three-year deadline under the statute of limitations. Her claim at the time consisted of four parts: violation of her civil rights under state law; conspiracy to violate her civil rights under federal law; intentional infliction of emotional distress; and defamation. The Court’s decision was certainly one of its least wise and prescient. What links it to Bush v. Gore (apart from considerable overlap among the authors of the briefs for Jones and Bush) is the question of a “stay” and “irreparable harm.” The trial of Jones must not be stayed, even temporarily, because the delay may cause Jones irreparable harm. (The Supreme Court here seems out of touch even with the experience of ordinary citizens before the courts: there is always delay, with its attendant risks of loss of evidence, and so on.) But the manual count in the Florida counties must, permanently, be stayed, because of the risk of irreparable harm to—well, to George W. Bush. The combination of Jones and Morrison was nearly the destruction of the Executive.

  IV.

  And there we are. One risk that seems to have passed, until now, under the radar of some of the justices is that the extreme right has become adept at using politically correct buzzwords (words from civil rights cases, from feminism, from affirmative action, from multiculturalism, and so forth) to advance diametrically opposite agendas. With Bush v. Gore, the majority of the Court—in spite of the persuasiveness and the eloquence of the dissents, and the efforts of the dissenting justices to preserve somehow the continuity of the institution—has virtually parodied the history and the meaning of such words (“equal protection” is but one example) to become quite openly the most dangerous branch. It has simply taken over, almost casually seizing rights that belong to the state courts, Congress, the electorate, and defying anyone to do something about it.

  And it is far from clear what can be done about it. Manual counting of the votes is now, even as a matter of history, meaningless. Many votes had already vanished by the time The Miami Herald started counting them; and more will surely change or disappear before The New York Times consortium is done. The election of Bush was never the real problem. The assertion of power—in a matter in which the Court is morally and constitutionally precluded from playing any part—is. The justices serve for life. They have now acted, in their judicial capacity, to promote their choice of a man who will select their colleagues and successors, who will a
lso serve for life. The losses—of trust in the Court, of respect for the law, and of belief in the vote itself—are almost the least of it. The only citizens who can do anything about it are the president (who has already made clear his ideological preferences, and who is now also compromised and in their debt) and the members of the Senate. The line is drawn. Of course, surprises are always possible. But there can be no more lapses of attention, no more confirmations of ideological clones in ethnically mixed disguises, no more ideologues at all.

  The difficulty, even the danger, is profound. It is embodied, after all, in that apparently harmless little shrug of a sentence about the decision being limited to the “present circumstances.” If you once cede to the Court the power to decide elections, let alone even the power to halt counting of the votes, then you have ceded it everything. It is no use for the justices to claim that this case has no precedential value. The “just this once” promise is disingenuous on its face—especially in the “present circumstances.” Every decision of the Court, under our system, becomes precedent; there is nothing to keep some future Court from responding in the same way, halting (on grounds of equal protection or whatever other specious grounds), in every county and in every state, a vote which displeases the majority of the Court. And there is no appeal.

  This is by no means an unlikely consequence. What the Court says is the law is the law, until the Court itself says otherwise. The only leash on the Court, until now, was the Court’s own history—its continuity as an institution that relies on precedent, reasoning, good faith, tradition, and its place among the three branches of government and within the federal system. It has now, with every affectation of helplessness, slipped that leash. There is no explanation in Bush v. Gore that can fit within the function of the Supreme Court, no rational explanation of this arbitrary exercise of power, in the language that the Supreme Court has always used to explain what it does. And all those affectations of helplessness—what it was “compelled” or “forced” to do, those “unsought” responsibilities it “could not abdicate”—were coupled with expressions of immense self-satisfaction.

  There seems, really, no question about it. This is a turning point. Not because of its effect on this election or on the status of the Court or on the people’s trust. Least of all was it a simple matter of choosing between two candidates in a close presidential election. Almost all the books, articles, and commentaries about it have, in one way or another, been useful—particularly Bush v. Gore: The Court Cases and the Commentary, in that it includes so many of the actual court decisions. Most critics speak of damage to the Court itself; most supporters speak in terms of excusing little faults, in view of what they seem to regard as a rescue of the system from “chaos.” Almost all speak as though there were some continuity between this decision and the entire history of the Court. But there is no continuity. The legacy of this Court is disaster—which no façade of collegiality, or relatively cuddly subsequent decisions, can conceal or rectify.

  One outcome of this case seems almost certain. Having once intervened to effect the outcome of the electoral process (which it had neither the authority, nor the competence, nor as it turned out even the good faith to decide), the Court—under this Rehnquist or another, with the concurrence of this Kennedy and O’Connor or others—will try again, relying on (perhaps even “refining”) the ineradicable precedent of Bush v. Gore. As Scalia put it, in 1988, in Morrison,

  Evidently the governing standard is to be what might be called the unfettered wisdom of a majority of this Court, revealed to an obedient people on a case-by-case basis. This is not only not the government of laws that the Constitution established; it is not a government of laws at all.

  And,

  What if [the judges] are partisan, as judges have been known to be . . . . There is no remedy for that, not even a political one. Judges after all have life tenure.

  And,

  The Court essentially says “trust us . . . .” I think the Constitution gives . . . the people more protection than that.

  And finally,

  That the Court could possibly conclude otherwise demonstrates both the wisdom of our former constitutional system . . . and the folly of the new system of standardless judicial allocation of powers we adopt today.

  Scalia was writing, of course, only of the act that established the office of independent counsel. But he had at length quoted Jackson, for whom Rehnquist had clerked—and whose views Rehnquist has often managed, from the day of his confirmation hearings to this day, to misrepresent. Scalia’s dissent even denounced, as an unconstitutional breach of the separation of powers, the special division that Rehnquist would head. The act which established the office of the special prosecutor, and which the Rehnquist Court upheld as constitutional, led to one disaster after another. Now it is the judiciary that has accepted the “invitation,” under Morrison, to “experiment” with “possibilities.”

  The Court, even when it acts on a lawless basis, is beyond appeal. Our system provides for the lower courts no equivalent of civil disobedience, or jury nullification, or even the degree of freedom enjoyed by dissident prelates within the Church. It is not entirely inconceivable that even the lower federal courts will (in spite of Justice Kennedy’s vague and unenforceable disclaimer) invoke Bush v. Gore to halt counts or otherwise intervene in elections. The damage is done, and cannot ever be quite undone. But it can be limited. If the Senate exercises, with the utmost care, its constitutional responsibility to advise and consent, Bush v. Gore really will with the passage of time have been just a radical aberration. If the Court succeeds, however, in having allocated to itself powers that belong to the states and to the other branches—and if the Senate’s examination of any candidate for a federal court is in the least perfunctory—the tanks have really rolled. The Founding Fathers, who did after all vote by hand, will have left us a wonderful form of government, which we somehow permitted the Court to throw away.

  The New Republic

  July 30, 2001

  ADDENDUM

  Two months after this piece was published, there was the disaster of 9/11 and, in its aftermath, the passage of legislation which does not so much grant the Court even greater powers as fuse the powers of the three branches into a single power, the prosecutorial—of which Justice Scalia, quoting Justice Robert Jackson, once so eloquently warned. The Solicitor General of the United States, as it happens, is now Theodore Olson, the Olson of Morrison v. Olson, the case in which Scalia alone was right, in warning of the threat the establishment of the office of special prosecutor posed to the entire constitutional system. “The Court essentially says ‘trust us,’ ” he wrote. “I think the Constitution gives . . . the people more protection than that.” Much of what government has said, since the events of 9/11, has been a variant of “trust us.”

  The doctrine of preemption, in international affairs, amounts to a variant of injunction in drastic military form. The questions—whether the preempting nation will otherwise suffer irreparable injury; whether that injury outweighs whatever damage preemption itself might cause; and whether the preemption will not be adverse to the public interest—are much the same. There has, of course, been nothing inherently violent in the ancient equitable remedy of injunction. And a real injunction can issue only from a court, or other neutral tribunal. (In at least two cases now before the Supreme Court, the administration actually argues that the president, the military, even Intelligence “Interrogators” are, under recent law, just such “neutral” tribunals, which can be trusted like any other court; the cases reached the Court at about the same time photographs of the work of Interrogators came out of Abu Ghraib.)

  In his dissent in Morrison, in 1988, Justice Scalia wrote, with some bitterness, of “the wisdom of our former constitutional system.” In Bush v. Gore, decided four years ago, the balance of powers which sustains that system was radically undermined. Now, under vastly more critical circumstances, there is another national election. Whatever the outcome, and w
hether or not any court will intervene, the fusion of all powers in a single prosecutorial power, of unprecedented scope and almost limitless discretion, is sure to test the Court again. Whether we are already speaking of our “former constitutional system” will depend in great part on what that Court decides.

  2004

  THE PORCH OVERLOOKS NO SUCH THING

  “THERE’S no complacency here. Never has been. Never will be.” (Arthur Sulzberger, Jr., publisher of The New York Times, July 14, 2003.) This is, in its way, a classic utterance. For one thing it begins with a perfect example of the self-refuting sentence. In its underlying idiocy and limitless self-regard it also manages to embody, and project through time, a virtual definition of the word “complacency.” Sulzberger had assembled the Times staff to announce the appointment of a new executive editor, Bill Keller, a popular choice. The staff, however, was preoccupied with something else. Howell Raines, Keller’s predecessor, had appeared on The Charlie Rose Show a few nights before, and expressed several views critical of the paper. He had described the Times as “an irreplaceable national institution.” He had even said (somewhat more debatably) that “the great advantage” the Times has “over any other news organization in the world” is “brain power.” Raines had claimed, however, that the Times had become a “culture of lethargy and complacency.”

  Well. It is hard to know what members of the Times staff can have expected from a former boss whom they had savagely attacked in every conceivable forum—from a “town meeting” in which he had to listen to insults both personal and professional and even to abase himself with the sort of confession reminiscent of a Maoist party cell (with the added ignominy of having a toy moose placed in his lap) through a campaign of venomous emails, posted all over the Internet. Maureen Dowd was partly right in comparing this spectacle to Lord of the Flies—with this difference: the Times, in recent years, has lost any awareness of the relation between the one and the many, of the real moral questions raised by piling on and ganging up. The behavior of those assembled was characteristic in some ways of an institution whose chief principle of action has become increasingly this: it will not permit itself to be criticized, contradicted or even questioned, in public. The Lord of the Flies aspect, the fact that the critic in this case was a former boss, whom it had very recently humiliated and deposed, was incidental. As the Times’s powers have grown (through the attrition of other newspapers), its sense of the vulnerability of the individual in the face of those institutional powers has vanished. In fact, it feels victimized.