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Psychopathology & The Supremes (1 of 4)

June 30, 2015

(Of this episode, page 2 and page 3.)

A working hypothesis of my narrative is that extremes signal irrationality, and therefore signal a powerful activity of subconscious content going on, the pathos, the movements of the soul, our psychopathologies.

I’m thinking out loud that this matter of sexuality and gender, brought to our attention by the decision of the Supreme Court’s affirming the universal legality of marriages, regardless of the gender of the persons who are marrying, might reveal much of what we are, as an American People, deep down.

Here we have, I think, an example of the psychopathology of justice (our imaginative working out of justice).

Below are some imaginings by Chief Justice Roberts; on page 2, Justices Scalia, Thomas, Alito.

These passages from the Supreme Court dissenting opinions were selected by Think Progress because they seem “hysterical” (quite laughable, but notably, at least since the late 1800s, a term of psychology, typically applied pejoratively to women). But surely they were carefully thought out. I want to respond to them, briefly, partly to clarify my own thinking, but more important, to attempt to more fully understand the way these extreme Conservatives think, and most important, to begin to think more fully about the passages as clues to the psychopathologies of our democracy, moving beneath these public statements.

On pages 3 and 4 of this episode I try to constructively imagine those pathologies, in which I participate. (Full disclosure: I’ve been married three times, approx. 45 years, two divorces, currently single and not anticipating.)

Below, I’ll italicize for everything that I quote from the article, bold the editorial summaries of the opinions, and put quot. marks around the written words of the Justices.

Think Progress notes that these reactions were extreme: More ink was spilled dissenting…than the majority’s opinion required. There were four different dissents, one by Chief Justice John Roberts (joined by Justices Scalia and Thomas), plus separate dissents from Justices Antonin Scalia, Clarence Thomas, and Samuel Alito.

The opinions are rife with criticism for the majority, including claims that they have upended the reputation of the Court, paranoia about the consequences for religious objectors, and a rejection of the idea that the benefits of marriage even constitute a liberty. Here’s a look at some of the most hysterical reactions from the dissenting justices.”

Roberts: No court should ever care about this issue.

“Whether same-sex marriage is a good idea should be of no concern to us. Under the Constitution, judges have power to say what the law is, not what it should be. The people who ratified the Constitution authorized courts to exercise “neither force nor will but merely judgment.

Chief Justice Roberts would not be, in my opinion, an interesting character in a novel, were it not for his interesting and important record as a lawyer and his important current position. But that’s quite enough for a novel such as this one.

I’m thinking that, most important: the “idea” to be decided by the Crt in this case is not whether marriage is healthy, or whether it’s really marriage if the two people are of the same gender, it’s whether people can be denied the right, by a state—because of some factor such as gender—to give it a try, when other citizens are granted that right. That’s what every American court should care about.

But I’m not sure that that is the “idea” that Roberts is concerned about—which I suspect is one that is outside the purview of even the Supreme Court, because it is above temporal legality (and thus, largely, below the horizon of consciousness?). I’ll think about that in Part 3.

And I’m not sure he is saying “no court should ever care;” rather I take it that he means that Congress writes law, and the SCrt says what it is that Congress wrote; for example, I take it that in the immediately preceding case, ACA, the justices could merely look strictly at the text being challenged; but that was such an obvious one that the Crt shouldn’t even have agreed to consider it in the first place, it was so obviously a political ploy.

(Here’s a very informative discussion, by Ian Milhizer, of the Roberts thinking, including the very important matter of “substantive due process” and the source of rights. Milhizer suggests that Roberts is thwarting some Conservatives, so here are some of his Conservative bona fides, including:

“During the Clinton administration, John Roberts returned to Hogan & Hartson as a partner where he became head of the appellate division arguing cases before the U.S. Supreme Court. During this time, Roberts argued in favor of a government regulation that banned abortion-related counseling by federally funded family-planning programs. In 1990, he wrote a brief that stated Roe v. Wade was wrongly decided and should be overturned and he co-authored a brief that argued in favor of clergy-led prayer at public school graduations. In November, 2000, Roberts traveled to Florida to advise then-Governor Jeb Bush on the recount of ballots during the 2000 presidential election between Al Gore and Bush’s brother, George W. Bush.”)

But is it really possible (or desirable if possible) to separate value from judgment in matters such as the legal right to marry? Setting aside the degree to which Conservatives recently have wanted to use the Crt to force their will (and their values, ideology, religious beliefs, and fears) on the rest of us, and setting aside the question of how one determines what the law is, in matters such as this, without interpretation of the Constitution (I think Scalia knows that, and tries to limit interpretation to defining words in the Constitution according to definitions in contemporaneous dictionaries—see Roberts below—because he can more easily control and manipulate what is considered relevant), wasn’t the Crt, in this case, being asked to look at an idea of legality and justice with the implication that some humans are less human than others? That’s a scientific matter, and value flows from it as from a spring. Our Constitution is the well. And our humanity itself is the deep underground reservoir. The question, as in “substantive due process” (if I actually understand these things) is how we carry the water.

These are matters involving the most deeply human valorization, and are thus, in large part, irrational and subconscious. The conservative position should be that that is exactly why we have laws and interpretations of law, so that, as a civilization, we can bring them into the full light of reason, and impartially apply our best concepts of justice, in dialogue with the people’s democratic declaration of what they believe to be in their best interests.

Roberts: The debate on same-sex marriage has been shut down.

Supporters of same-sex marriage have achieved considerable success persuading their fellow citizens — through the democratic process — to adopt their view. That ends today. Five lawyers have closed the debate and enacted their own vision of marriage as a matter of constitutional law. Stealing this issue from the people will for many cast a cloud over same-sex marriage, making a dramatic social change that much more difficult to accept. […]

Indeed, however heartened the proponents of same-sex marriage might be on this day, it is worth acknowledging what they have lost, and lost forever: the opportunity to win the true acceptance that comes from persuading their fellow citizens of the justice of their cause. And they lose this just when the winds of change were freshening at their backs.”

Think Progress previously unpacked this argument.

You know, really, no one can predict something like that. I remember when Conservatives used the slogan, with regard to color integration, that you can’t legislate morality, because you can’t legislate what goes on in the heart. Of course, for one thing, morality is to a great extent an exercise in pragmatic reasoning, trial and error, to clarify and formulate what works most healthfully and constructively. But furthermore, it turns out that you can legislate behavior, to make it just, and then the new behavior puts people in touch with each other more, and in different ways, with the result that they do have a change of heart, because they experience each other’s common humanity and prejudice falls away, like darkness before the turning of the Earth.

Really only the legal debate has ended. Individuals and groups will go right on being prejudiced or not, wanting to discriminate or not, and a large portion of us will still be wondering what we think. The difference, as with integration of schools, and with non-heterosexual people being themselves in public, the vast majority of us will find ourselves able to think about it, and debate it, more intelligently, because will know, experientially, what it is that we are debating—the character and lives of our friends, neighbors, and family members.

Roberts: The decision invents a new concept of justice.

“The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice.”

Now that would be extraordinary. How often in human history has a new concept of justice been invented—to be accurate, a new insight into the nature of injustice? And we are fortunate enough to be living at such a time.

Seriously, that would really be something. I’m puzzled by what the new concept of injustice is. That’s really intriguing, and I wonder if I’m capable of figuring it out. Might it be a helpful concept? Should we be trying to incorporate it into the Constitution? It can’t be the idea that money is speech, or that corporations are people—those ideas undermine justice, but they don’t constitution something new under the sun.

Let’s remind ourselves that the “right that it announces” (affirms) is the right to marry even if you are not of the same gender. And let’s remind ourselves of the point of this episode of our narration: the views being expressed are irrational to the extreme and thus reveal the presence of some of our psychopathologies.

Roberts: What about the Aztecs?

As a result, the Court invalidates the marriage laws of more than half the States and orders the transformation of a social institution that has formed the basis of human society for millennia, for the Kalahari Bushmen and the Han Chinese, the Carthaginians and the Aztecs. Just who do we think we are ”

And who does Roberts think we are? Seriously. We’re not people who are ignorant of history and anthropology. We don’t think that life doesn’t vary and change. The form of a legal institution such as marriage is not historically monolithic, is not set in stone. And to suggest that marriage as we know it, or think we know it, or Roberts thinks he knows it, is what has “formed the basis of” those societies is, look, it’s just naïve and superficial. And that’s not to mention the profound critique that we can (and should) make, of that institution, as we practice it and as those other folk practiced it.

We would justly invalidate the laws of more than half the states if those laws said that people couldn’t marry if they didn’t have the same ancestry or skin color.

Roberts: Marriage is only about children (and the couples who can biologically have them).

“The premises supporting this concept of marriage are so fundamental that they rarely require articulation. The human race must procreate to survive. Procreation occurs through sexual relations between a man and a woman. When sexual relations result in the conception of a child, that child’s prospects are generally better if the mother and father stay together rather than going their separate ways. Therefore, for the good of children and society, sexual relations that can lead to procreation should occur only between a man and a woman committed to a lasting bond.

Society has recognized that bond as marriage. And by bestowing a respected status and material benefits on married couples, society encourages men and women to conduct sexual relations within marriage rather than without. As one prominent scholar put it, ‘Marriage is a socially arranged solution for the problem of getting people to stay together and care for children that the mere desire for children, and the sex that makes children possible, does not solve.’”

Oh my. What can I say? Must I ask, what world is Roberts living in? This passage is couched in seemingly ironclad logical form, syllogistic. “If we had world enough, and time,” we would debunk each premise, and we would point out all the life going on outside the syllogism.

But what is this thing about “bestowing a respected status and material benefits” on married heterosexual couples, exclusively, if they procreate?

I think maybe a church, Roman Catholicism, for instance, can do that, and justify it with the Roberts argument, but not a secular nation. Wait, maybe I’m onto something behind the scenes. Btw, the five Conservative justices are Catholics.

Roberts: The dictionary says so.

“In his first American dictionary, Noah Webster defined marriage as ‘the legal union of a man and woman for life,’ which served the purposes of ‘preventing the promiscuous intercourse of the sexes, . . . promoting domestic felicity, and . . . securing the maintenance and education of children.’”

Ouch. When I was teaching freshman comp, I hoped that my students would have learned about dictionaries, and about offering definitions as evidence, in high school.

The concept of dictionary, today, is that a language is primarily spoken and consists of words in practical use at a given time, and that therefore, like the people who are using those words, it is constantly changing.

But this is Noah Webster, a prominent scholar, and in his very first American dictionary. Ah, that’s different.

Samuel Johnson, in his Dictionary of the English Language, 1755, the first ever, defined “marriage” as “the act of uniting a man and woman for life.” (Page from 1785 edition.)

The scholarly English mind of the 1700s saw civilization as being in decline from a Golden Age of rightness, and they took various actions to try to arrest that decline. For instance, Johnson defines, not according to common use, but best use, which he finds in the writing of the best authors.

But more important, let’s note, too, that Roberts isn’t merely saying what the law is (see his first passage, above), he’s preaching a moral argument. States should deny homosexual couples the legal right to marry, to prevent promiscuity.

Roberts: It sure seems like this leads to legal polygamy.

“I do not mean to equate marriage between same-sex couples with plural marriages in all respects. There may well be relevant differences that compel different legal analysis. But if there are, petitioners have not pointed to any. When asked about a plural marital union at oral argument, petitioners asserted that a State ‘doesn’t have such an institution.’ But that is exactly the point: the States at issue here do not have an institution of same-sex marriage, either.”

“…in all respects”?

Clearly Roberts has a deeply ingrained suspicion that marriage of same-gender people is different from that of not-the-same gender people, in such a way that it should not be legal. What is that profound matter? What if it really is all about promiscuity for him? What would be the implications for sexuality practiced by women? Regarding gender—including gender-queer? What archetype is rolling around in his subconscious imagination of life? And what, then, of democracy?

You know what? At first, to me Roberts seems out of his depth on this subject, marriage. Maybe we expect too much of our Supreme Court Justices; even they are only individuals. But I think he knows his entire argument, totally, and is keeping his eye focused on a couple of conservative interpretations of human life that run very deep.

And it’s not that he doesn’t want good for homosexual people, as his bio shows:

“Roberts entered private law practice in 1986 as an associate at the Washington, D.C.-based law firm of Hogan & Hartson.[7] As part of Hogan & Hartson’s pro bono work, he worked behind the scenes for gay rights advocates, reviewing filings and preparing arguments for the Supreme Court case Romer v. Evans (1996), which was described in 2005 as ‘the movement’s most important legal victory’.”

I suspect I’ll come back to them in Part 3 of this episode.

Roberts: The opinion isn’t very nice to opponents of same-sex marriage.

“Perhaps the most discouraging aspect of today’s decision is the extent to which the majority feels compelled to sully those on the other side of the debate. The majority offers a cursory assurance that it does not intend to disparage people who, as a matter of conscience, cannot accept same- sex marriage.

By the majority’s account, Americans who did nothing more than follow the understanding of marriage that has existed for our entire history — in particular, the tens of millions of people who voted to reaffirm their States’ enduring definition of marriage — have acted to ‘lock . . . out,’ ‘disparage,’ ‘disrespect and subordinate,’ and inflict ‘[d]ignitary wounds’ upon their gay and lesbian neighbors. These apparent assaults on the character of fairminded people will have an effect, in society and in court.’”

Merriam-Webster Dictionary: conscience: “the sense or consciousness of the moral goodness or blameworthiness of one’s own conduct, intentions, or character together with a feeling of obligation to do right or be good.” So it’s behavior; but don’t we rightly (indeed morally, conscientiously) distinguishing informed, open-minded, compassionate consciousness (“fairminded people,” who are not under assault) from consciousness that is prejudiced and/or limits itself to thinking what an authority tells it to think (and do)? And then there are persons who conveniently align their authorized principles with their social self-interest.

Roberts: Have your fun, but you just soiled the Constitution.

 “If you are among the many Americans — of whatever sexual orientation — who favor expanding same-sex marriage, by all means celebrate today’s decision. Celebrate the achievement of a desired goal. Celebrate the opportunity for a new expression of commitment to a partner. Celebrate the availability of new benefits. But do not celebrate the Constitution. It had nothing to do with it.”

 The Constitution,” as it seems to me, in the context of this kind of issue, refers to a still-developing line of excellent thinking about the nature of persons and societies and “the good life”—to try to briefly sum it up—that constitutes a large part of who we are as a society with a desire for justice.

Here is Justice Kennedy’s last sentence, of his gloriously idealistic last paragraph, of the majority opinion:

“The Constitution grants them that right.”

To Chief Justice Roberts’s way of thinking, “it had nothing to do with it.”

What way of thinking is that?

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