When US Supreme Court Justice Arthur Kennedy retired from the bench, he said that he wanted to make sure that the next Supreme Court justice would be a “Republican”. Not a conservative, even, but a Republican. Pardon my ignorance, but I thought that justice was supposed to be above politics. Especially in the case of wrongful convictions, I thought there was some abstract set of laws that determined whether a trial was constitutional, but that has turned out to be an illusion. What determines the end result of an appeal is the judge’s politics. In some cases this happens because judges have been elected and wish to stay in office. Their decisions have more to do with pleasing their constituents than with applying the law. But even when judges are appointed, they are sometimes beholden to the politics of the individual who appointed them or they feel pressure to uphold the reputations of the prosecutors and law enforcement agents in their particular county or district. The law is no longer an abstraction but a reflection of politics. In an already weakened system where there is little accountability for prosecutorial misconduct and police malfeasance, the last vestige of justice, the bulwark that an independent judge is supposed to be, has also been compromised.
Nowhere is this clearer than in the case of Brendan Dassey, the co-defendant of Steven Avery in “Making of a Murderer” (Netflix). It is obvious, inarguable, that Dassey’s lawyer deserted and betrayed his client. This ‘ineffective assistance’ should have resulted in another trial. While he won favorable rulings at lower levels, the higher level appeals court ruled against him. At the end of June 2018, the Supreme Court refused to hear his case, thereby ending this man’s appeals and forcing him to spend 42 years in prison before being eligible for parole. Dassey refused a plea bargain that would have seen him spend 20 years in prison because he, as some courageous souls do, did not want to admit to something he did not do. His own lawyer abetted the police and prosecutors hoping that his client would accept the plea. Dassey, despite having intellectual disabilities, stood his ground. The decision of the highest court to ignore his appeal was politically motivated and a reflection of a system of justice that has abandoned basic protections for defendants.
The United States so-called system of criminal justice has moved onto dangerous ground. Police are routinely let off for outright murder of African American citizens. These are political, and not legal, verdicts. If one goes before a court, all she needs to know is the political affiliation of the judge. Judges, by ruling on what evidence is allowable, can steer trials in the direction they want them to go. Do not rely anymore on the assumption of innocence.
What is the significance of this political polarization in the court system?
First, there is a dichotomy between matriarchal and patriarchal administration of justice and of political debate in general. (I acknowledge here that these are generalizations but generalizations are true a majority of the time.) “Matriarchal” represents the female principle, emphasizing compassion, mercy and the golden rule: “Do unto others as you would have others do unto you.” The three women currently on the US Supreme Court do mostly rule according to matriarchal principles. Matriarchy implies warmth and nurture–hence compassion and mercy–but is deemed to be weakness in a patriarchal environment like the justice system where, despite major gains in female appointments to the court, is still male dominated.
The judicial system of a patriarchy is characterized by coldness, the use of law as a blunt intractable instrument and inflexible punishments. When progressive male judges act with compassion and mercy they are deemed weak, soft on crime, unlike the hard on crime justices who appear as ‘strong’ in the eyes of certain elements of the public.
If anyone looks even casually at what is occurring in the world today, we see patriarchal governments in the ascendancy. As in China, Russia, North Korea and Turkey, fixed term limits on powerful positions are no longer in effect or are easily abrogated by citizens needing easy answers. If Donald Trump had his druthers, he would install himself as ruler for life and a lot of people who support the patriarchy, including women, would be happy to support him. They support him on everything else, why not that? The patriarchy is a simpler system and tends to see conflict in black and white terms. This is why it’s so incumbent on the left not to give in to simple good versus evil dichotomies. Why does Donald Trump praise ruthless dictators and prefer their company to democratically elected politicians? Because he sees in their power a reflection of his own lust for power and his dead emotional life. He loves being a demagogue and he brooks no contradictions. He has an adolescent proclivity to exchange insults or to insult his critics. He fires anyone who disagrees with him. He controls the message by the use of Twitter, rather than participate in press conferences. He derides the media as the enemy of the people when, in fact, he is the enemy of democracy.
Hence the justices he appoints to the Supreme Court are equally cold and categorical. They do the bidding of the patriarchy, unless, like some of them, they change course and accept the subtleties of the legal process. Justices like William O. Douglas are transformed while on the Supreme Court. People like Clarence Thomas and Samuel Alioto (or the late Antonin Scalia) never would. Neil Gorsuch: worse still. Brett Kavanagh!! Expect further restrictions on choice, freedom of speech and protest action, on worker rights, and anything, in short, that allows for peaceful change in society. Expect the social divisions, especially rich versus poor, to widen and, finally, expect American society to become more violent.
The ascendancy of a one-dimensional man to the presidency of the United States will cost everyone in the end.
Analogous to Trump’s embrace of dictators is his contempt and belittling of leaders whom he perceives as soft. I’ve yet to hear him call Prime Minister Justin Trudeau anything but Justin or Justin Trudeau, reminiscent of “Little Marco” Rubio. How he gets away with this disrespect is mysterious to me. Michelle Obama insists on taking the high road and, of course, that’s a good way for people to behave in such circumstances. As is compassion. But some Americans need to wake up to the fact that democratic institutions are being compromised. The justice system is the most egregious example.