May 8, 2022
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Rowing and Wading

by Jonathan Wallace

Some years ago, I hit on a Metaphor for the Supreme Court of which I am quite proud. The Court is an old, Wise Tailor who sits on a wooden chair in the hallway just outside a huge room in the Garment District in which hundreds of people are sewing garments. Every completed garment is carried out into the hallway past the Wise Tailor, who is asked to look at some of them. She holds the item of clothing up close to her eyes, stretches and flexes it with her hands, turns it inside out, and asks the person who brought it to her a few questions. You can sense the Click as she decides which of four actions to carry out. 1. Some garments she approves and the bearer carries them to the elevator and out into the wide world and into commerce. 2. Some cannot be saved; she throws them into a large trash bin against the wall. 3. She sends others back inside with instructions as to how to fix them-- or sometimes delegates that responsibility, asking one of the more experienced tailors inside to decide how to do it. 4. With a minority of the garments, she pulls out her own needle and thread, adds a few stitches, and then sends them down to the street.

Read #4 twice. This is the legislative function of the Court. Yes, the Supreme Court legislates at times. A whole contingent of Americans, the self-proclaimed Conservatives, professes to be shocked, shocked, by "judicial activism", by Courts writing legislation. But, as I like to say, viewed from Five Miles Up, courts have always done that, and in fact without that capability, would lack a critical tool needed to do the job.

A Constitution is a Rule Set agreed to by humans. I think of Constitutions as Meta-Data: These are the rules by which we propose to make our rules. Hovering behind and above all this, its existence ignored even by most intellectuals, is the Meta-Meta-Data, the values we wrote the Constitution to embody, which themselves are almost as "imaginary" as the Constitution and the laws. I do not use "imaginary" in a pejorative sense, but as a synonym for "imagined". We collectively generate our ethical rules and understandings, then write (Imagine) a Constitution to summarize them, and then Imagine laws to carry out, or at least be consistent with, the Constitution.

When a garment-- a law-- has a flaw in it, but can be saved by a little Imaginative Sewing, by a Wise Tailor, what's wrong with that? Nothing. It seems like a natural human repair function, which can be carried out carefully, compassionately and pragmatically. It saves a lot of time and energy over either throwing away every mildly flawed garment, or sending it back; and the idea of allowing flawed garments into commerce, when there are easy ways to fix them, is appalling. If you and I and 10,000 of our closer friends were sitting on a hilltop on our new planet in Labrador quadrant, deciding our Rule Set, I would absolutely propose a high court which legislates--sparingly, a little, and only when really needed. I would also, by the way, propose something else which so far as I know has never been done--a Compassion Clause, that when we have competing solutions to a problem, we should attempt always to choose the most compassionate one.

Because the fact that almost all courts legislate at times, and are really meant to, so contradicts every Official Narrative (Whig or Tory), we must always "pay no attention to that" Wise Tailor "behind the curtain". Not being truthful with ourselves, that that is what courts do, allows us to hew to vacuous Narratives, which, being full of gaps, fail to defend against dangerous intrusions.

The Conservative counter-Narrative, which is quite pernicious and false, is that the Constitution is not a human Rule Set at all, but more along the lines of a stone tablet carried down from the mountainside by an American Moses. Though it contains the machinery for its own amendment, in this view we would never use that machinery, or only when we hear the voice of God. The "originalist" philosophy proclaimed by the Federalist Society is a Crock: if it isn't in the Constitution, we cannot legislate it today.I have no doubt that there are fiercely dogmatic law students and young lawyers who are wilfully simpleminded and even stupid (learned stupidity) who really believe this. But I seriously doubt that many senior attorneys and judges who have observed the garment factory close up really believe their own words when they speak of Originalism: how would that even work? Life is change, and we change our Rule Sets accordingly. How else could we even live? What would Originalism mean applied to agriculture, manufactures, physics, technology? It is a word almost lacking content, an Empty Sign, what I call a Doorstop.

By the way, even in the old days of civility and stare decisis, there were Tells when a judge was being egregiously dishonest. Even before we fell into Trump Universe, there have always been statements no reasonable adult of normal experience could make with a straight face, such as "No innocent person has ever been executed in America."

I have been agitated for days by the question of what to write about the onrushing overruling of Roe v. Wade . I meant to write something indignant, righteous, loud. I do regard this as the beginning of the end, that, by 2026, if the Trumpoids are in control of all three branches of government, they will come for everything else, dismantle the entire Rule Set. The self-deception of prospective victims can be very intense; the people saying now, "Well, at least we still have abortion in New York," seem unaware that, within a few years, a Trumpoid Congress will legislate a nationwide abortion ban, President Trump or DeSantis will sign it, and the radical Supreme Court will uphold it. Without any checks or balances, anything else that has been our bedrock for fifty or a hundred years, including Brown v. Board of Education, is vulnerable. The only thing which could protect any part of our Rule Set from a radical court is its own self restraint embodied in the (also Imaginary) rule of "stare decisis", consistency and respect for precedent, a concept for which only John Roberts on the conservative side of the Court has any remaining respect.

What I have come up with for my first words about the Roe reversal is strangely mild-mannered. I remind myself of Epictetus the Stoic slave, who according to one story told his master: "If you keep idly twisting my leg like that, you will break it", and then, hearing a snap, said equally mildly, "I told you so".

This meditation was inspired by Justice Alito's astonishing words in the draft opinion which leaked: “We cannot allow our decisions to be affected by any extraneous influences such as concern about the public’s reaction to our work. We do not pretend to know how our political system or society will respond to today’s decision overruling Roe and Casey. And even if we could foresee what will happen, we would have no authority to let that knowledge influence our decision.”

Of my various little endlessly re-used Metaphors and Expressions, another favorite is the Neurolinguistic Translator, a sort of Star Trek device, but which translates English into English. Run through the NT, Alito's words are rendered in several possible versions:

"Because I am the boss of you." Or:

"You're fuckin' nicked, me beauty!" Or:


What I call the "Neptunean" (immanent) content of Alito's words, has two layers. The first is mere Sophistry, and the Second is what he really thinks.

The first, lying layer, is that the law is the word of God, or somehow else engraved in the fabric of the Universe, reified, so that a judge, revealing it to the masses, cannot possibly be concerned about the unwashed's reaction, any more than a quantum physicist would be, revealing a new discovery about Strange or Charmed Quarks. This is at the same time a denial of Agency, a statement that if anyone happens to be outraged or harmed, it isn't my fault or the science's fault, but a mere Glitch. I am merely driving that stake into the ground; why did you happen to put your head in the way?

Behind the Sophistical layer, hovers the Meta-Meta-Data, the true values of someone who would claim that the Constitution and quantum physics are the same thing, and that is the reality of autocratic power. What Alito is really saying, whether he consciously knows it or not, is that he does not care about public opinion, any more than Stalin needed to, or Kim Il Soong. Alito is a dictator, literally, dictating to us how we will live now.

I will add, for context, that I have always thought Roe an extraordinarily weak and vulnerable opinion (I hate to be right as often as I have been since Vol. I, no. 1 of the Spectacle in January 1995). The right to an abortion should have been based on the 14th amendment right of equal protection. In order to be equal, a woman must have as much control over her body as a man. That would extend to deciding whether a fetus could live in it. THe same men avid to end abortion tend to advocate with equal stridency for George Zimmerman's right to kill his unarmed, teenage African American neighbor, Trayvon Martin, because he felt frightened by him. A man can kill a stranger on the street who subjectively seems to threaten his autonomy, but a woman cannot oppose an unwanted organism, possibly the outcome of rape or incest, which actually threatens her health and even her life, uses her blood, oxygen, and nutrition, and causes radical changes in her body-- then inflicts an excruciatingly painful and again life-threatening experience when it emerges. In a world of true equality, only a volunteer would ever undergo that experience. The Meta-Meta-Data of the "right to life" crowd is therefore the complete domination of half the population by the other. The fact there are also women advocating for that (as you can always see Black people and Hispanics posing behind the Trumpoid Object in every photograph) is sickening and heartbreaking.

Anyway, basing a right to abortion very puzzlingly on privacy rather than equality contributed to this despicable outcome-- but is possibly explainable by the fact that nine older men decided Roe in 1973, and eight were white.

Anyway, every Spectacle essay is a Ramble, something which for years I regarded as a Bug and now see as a Feature (especially since I first read Walter Benjamin on the "Flaneur" about ten years ago). But let me circle back to where I started, as I do in my better efforts.

Implicit (Neptunean) in my Parable of the Wise Tailor is that she operates according to a moral code, Meta-Meta-Data of her own. She will never send out onto the street a garment that will tear as you put it on, cause a rash, or stain your skin. Samuel Alito doesn't care that women will suffer and die as a direct result of his words. I started to call him by his title, "Justice", and Just Couldn't. I couldn't type the word in front of his name. Alito is not a Wise Tailor.