We're Thinking About the Court All Wrong

So Justice Kennedy announces his retirement and the internet blows up. Liberals are screaming in fear because they believe the court will be stacked against them for the next 20 years, and conservatives (or whatever they are nowadays) are shouting in triumph that they will finally have a bulletproof majority on the Court.

All of this is wrong. All of it.

I get that the court is, by necessity, something of an all-or-nothing institution. When it makes rulings, its rulings stand - at least until a later court overturns them. Another casualty of the politicization of the law may be the stare decisis standard, which appeared to take a bit of a hit today in the Janus case. I fear that future courts, both right and left, will see their job as undoing the work of the "other side" in the previous generation.

The reality is that we live in a diverse, often divided nation. And we live under a political system that is supposed to value that diversity, and to produce outcomes that, however imperfectly, reflect everybody's voices. If only 20% of people want something, they shouldn't be able to impose their will on the other 80%. That's what we call democracy, and it's what we all claim to value.

Yet the celebration on the right, and the yearning on the left, for a court supermajority are both repudiations of these foundational ideals. It's not just that the court is (by some necessity) a non-democratic institution. How we think about the court betrays how little we really value our democracy.

Take the issue of Roe v. Wade, one of the most oft-cited cases for the importance of getting "your" side to dominate the court. I get that there are people who believe that abortion should be eradicated entirely. I also get that there are people who would like it to be restricted much more than it is. Just as there are people who think it should remain available, and people who would like to widen that availability. I spent a semester in grad school poring over General Social Survey data on Americans' attitudes towards abortion. They are diverse, and remarkably stable, and on balance tend to fall into the "keep it legal but hopefully rare" area, with a large standard deviation around that mean.

So if you celebrate winning a supermajority on the court so that Roe can be overturned and abortion made illegal everywhere, you're in essence saying that winning a complete and total victory on this issue is more important to you than democracy. That even if your view is only held by 20% of the American population, you think you should win anyway and impose that view on the 80% who think differently.

The alternative approach, which is actually far more consistent with our claimed democratic values, would be to try to persuade enough of that 80% to see things your way, so that your view prevails across the population. This is basically why gay marriage is legal now - not because a court said it should be, but because over the course of a couple of generations most Americans have come to agree that people should be able to marry whom they want. Want to change that? Convince them back the other way (good luck).

That approach hasn't worked well on abortion, as the GSS data shows. Hence the arguing over the court - and the hidden abandonment of democratic ideals.

You can substitute any number of other issues for abortion here - gun rights, labor unions, travel bans, take your pick. For those who take the "long view" on the court, who are looking out over the next 20-30 years, it's not any one issue. It's the desire to see "their side" win all of the battles over that period.

If we really believed in democracy - if we really believed that we make our best decisions collectively when everybody's voice is in the mix - we wouldn't want a supermajority on the court. Or a permanent majority in Congress, as Karl Rove used to dream of. If we really believed in democracy, we would want Justice Kennedy replaced with another moderate, swing-voting judge. If Elena Kagan stepped down, we would want her replaced with another liberal justice. If Clarence Thomas retires, we would want him replaced with another conservative.

If we really believed in democracy that's what we all would want, regardless of our own personal views. But we don't really believe in democracy. We only support it when it means we get to win.

All of this is compounded by the fact that we are living through the most anti-democratic Presidency in modern US history. Trump has not the slightest regard for the views of others, and - by his own repeated admission - he wants to win all the time. He doesn't care about what other people think. If he could impose his will on the world, he would, even if nearly everyone disagrees with him.

The mood of the country as a whole is increasingly anti-democratic. Sure, lots of folks are saying, go out and vote. Voting is not a reliable indicator of democracy - just ask Zimbabwe, or pre-1990 South Africa, or Saddam Hussein's Iraq. On all sides, the act of voting - indeed, all political acts - have taken on existential proportions. Everything has become Chuck Norris' "1000 years of darkness" warning, on all sides.

Don't believe me? Watch Tucker Carlson, speaking to a national audience of millions, equate the desire to welcome immigrants with suicide. Translate that into Kinyarwanda and Carlson would fit in nicely with RTLMC radio just ahead of the Rwandan genocide.

This is not Schoolhouse Rock America anymore. We are not e pluribus unum - rather, our motto ought to be e unum pluribus. Out of one have come many. Where there was one nation, united by a common set of political values, now there are many, divided by fear and anger and hatred.

For those who look at Kennedy's retirement and say, this is why I voted for Trump - who believe that for all of his faults and problems, it was worth it to "secure the court" for the next generation - you're entitled to your reasons. If you feel happy today, you're entitled to that too. What you're not entitled to do is claim that you value democracy. Because in the end, if we don't value each other more than we value winning out over each other, then what are we?

Moving the Embassy Didn't Matter: the Palestinians Were Already Stuck

Now that the Trump Administration has recognized Jerusalem as the capitol of Israel and moved the US embassy there, many are asking what this will mean for the Israeli-Palestinian conflict and prospects for future peace. A lot of public discussion, however, tends to be driven not by an analysis of what is and what may happen, but by what people want. This is one of those conflicts where dispassionate analysis is hard to come by - so naturally, I thought I'd give it a shot.

Objective analysis of the Israeli-Palestinian conflict is difficult because both sides have very strong narratives rooted in justice and righteousness. That these narratives are largely incompatible is lost on no one, which goes a long way to explaining why there's been no resolution. Even outsiders tend to look at the conflict through the eyes of what they want to have happen, and make predictions that are really attempts to calculate how to get from wherever we are at the moment to that end.

This is particularly true for those sympathetic to the Palestinian cause. The case for injustice in Palestine is easy to make. Even former President Jimmy Carter, a man of wisdom who knows how to weigh his words carefully, has likened the separation of Palestinians from mainstream Israeli society and the control over their movements and territory, as akin to South African apartheid. The Palestinian population is stuck in a third- (or even fourth-) world existence, both politically and economically, from which there appears to be no escape. There's an easy justice narrative there.

Israel too has a narrative about justice and victimhood. Beyond the Holocaust, which was perhaps the worst targeted crime against a population in human history, and beyond the centuries of violent anti-semitism that preceded it, modern Israel is an island of less than 9 million inhabitants surrounded by a sea of hundreds of millions of Arabs, many of whom have expressed the desire to wipe Israel from the map. However powerful Israel has become - and it is indeed very powerful - it is difficult to fault modern Israelis for believing that the world is a threatening place, with hatred directed against them from all sides.

But if we want to understand the possible and impossible next steps in the Israeli-Palestinian conflict, none of this helps. For a conflict analyst, it is enough to know that the two sides have mutually incompatible, even mutually contradictory, narratives about themselves and the other. This much has been true since 1947, and it hasn't changed.

So what now? Is the recognition of Jerusalem as Israel's capitol city the end of the peace process? Or will this usher in a new era of opportunity? There answer can't (or shouldn't) depend on whether we like or don't like Donald Trump, or whether we prefer the Israeli or the Palestinian narrative, but on an analysis of the situation.

In any such analysis, it is important to note that neither "side" is a monolith. There are Israelis who are happy about the US embassy move, and those who are upset by it. There are even Israelis who would be perfectly happy to see all the Palestinians expelled from the whole territory, although they tend to be quiet about it. There are Palestinians who desire to "drive the Jews into the sea", and those who would be happy to live beside them in peace. So what we see at any one point in time reflects a rough majority opinion of each side. Feelings and goals can change, and if they do the analysis changes with it. But for now, things are what they are.

As of today, Israel has most of what it wants. It has complete control over its recognized sovereign territory, and (as of today) a slightly greater recognition of its claim to Jerusalem, which it already controls anyway. Since its withdrawal from direct occupation of the West Bank and Gaza back in the 1990s, it no longer has the immediate burden of trying to provide services or a functioning economy for most of the Palestinian population, nor the difficulty of policing it from within. Israel still faces security challenges from terrorism, from the Syrian civil war next door, and from Iran, but these are for the most part as managed as they can be, and the bigger issues (Syria and Iran) are independent of the Palestinian issue.

The status quo, in essence, is one that most Israelis are perfectly happy with. The moving of the US Embassy doesn't really change that, except perhaps in a minor symbolic way. Despite the emotional narratives and (for some) references to the Will of God, the primary interest for the median of Israeli society is peace and security.

There is a subset of Israelis who would like to change the status quo still further, by gradually assuming control over the West Bank (or Judea and Samaria, in their parlance). The settler movement is actively engaged in this effort at what Palestinians might call slow-motion ethnic cleansing, encouraged (or at least enabled) by the current Israeli government. Again, the moving of the US embassy doesn't change this calculus much either, except perhaps as a further signal that the US will not actively oppose settler expansion. Then again, no American administration since George H.W. Bush has done much to dissuade this movement, so there again the Trump Administration hasn't changed very much.

On the Palestinian side, of course, no one is happy with the status quo. The economy is a shambles, there is little hope either individually or collectively that their prospects will improve, they are subject to a host of difficulties in being told where they can live, where they can travel to, and what jobs they can or can't have, and their political leaders are largely ineffectual, alternately violent and corrupt. Things have been bad for a very long time, and every year they get a little bit worse.

Here, the moving the US embassy is a small material change in that it signals that the two-state solution - with Jerusalem divided into two capitols side by side - is dead. More importantly, today's events send a signal that the power of the United States is firmly on the side of Israel, the locally dominant power in the conflict. But this is at best a marginal shift, because these things have largely been true for a while. It is arguable that, except for the symbolic location of the embassy, not much would have been different under a Hillary Clinton administration.

It can be argued that outcomes are a function of the intersection between interests and power. Israel holds nearly all the power in the current situation, while the Palestinians have essentially none. Palestinians have not yet discovered any means of leveraging their assets in a way that would exert significant power on the situation. In the 1980s they launched the Intifadah, and although they paid a heavy price for it they did force Israel to reconsider the situation. Since that time, and with a few echoes in the 1990s, Palestinians have been largely powerless.

Palestinians' hopes have always leaned on one of three possible sources of power. Either their Arab brethren in neighboring states would help them, or the United States would help them, or they would somehow find the means to alter the situation themselves. The first hope vanished in 1979 when Anwar Sadat abandoned any significant pretext of sponsoring the Palestinian cause. The second swelled briefly in the Bush 41 and Clinton Administrations, but hasn't been much since; Trump's announcement is the last of a line of nails in that coffin. The third has been slowly leaching away with time, and as Israel has gotten better and better at sealing the borders and preventing any significant weaponry from getting into the Palestinian territories.

The most likely scenario, therefore, is that the conflict is stuck. The party which has the greatest interest in changing the situation has no power to do so, and no prospect of acquiring any. The party that has power to change things has no interest in doing so. Barring a truly massive uprising that disrupts Israel's security calculations - and today's events demonstrate that they're willing to be pretty ruthless about meeting the threat of force with much greater force - this isn't going to change.

So it is not true that Trump's decision to move the embassy has killed the peace process. The peace process was already dead. And, although I don't like it and wish the world were otherwise, I don't see that changing anytime soon.

Karate and Life: Justice

A lot of people - even people who don't study karate or the martial arts - have heard of Funakoshi's first two precepts regarding Respect and No First Strike. The other 18 Precepts are not nearly as well known - but there's a lot here that worth unpacking, and a lot that applies to our whole lives.

Funakoshi's third precept is this:

"Karate is an aid to justice."

I think he meant this as a reminder to his students. To study karate, or any martial art, is to develop power - specifically, to increase your power to physically harm other people. That power should only be put to use in the service of justice - that is, in the service and protection of others. Funakoshi, like all great teachers and masters, feared his teachings being used only to create bullies.

This is certainly true for karate - but it is true much more broadly of any kind of power we wield. All of us have the ability to impact others - to bring good or to cause harm, to build up or to tear down. Some have more than others, but this is only a matter of degree, not of kind. To possess power is an inherent part of being human.

Each of us can speak, and many of us can write, and our words will be heard and digested by others.

Each of us interacts with other people every day - some a few, some many. We can choose to make those interactions positive or negative, affirming or denying.

Each of us makes choices every day with our resources - our time, our money, our attention. Those choices impact us, but they also impact the people around us, for good or ill.

The lesson for us here is that, like Funakoshi's students, we should be mindful of the purposes we use our power for. We may not think of ourselves as "powerful", but each of us has an impact on the world.

Knowing that my choices, my actions, and my words have an impact, will I put those to work for justice or for my own selfish gain? Will I try to build a better world for everyone, or will I look to tear others down for my own gain or my own sense of worth? If I'm not pursuing justice intentionally, I may produce some accidentally - but I wouldn't count on it.

Comic book fans know this as the "Peter Parker Principle" - "With great power comes great responsibility." But part of the pull of comic books, especially those stories like Spider-Man which focus on an Everyman who suddenly acquires powers, is that we see ourselves in the characters. What's compelling about Marvel's new TV series, including Daredevil and Luke Cage, is not the main characters' amazing abilities - it is the struggles they face to use whatever abilities they have to make the world a better place. To pursue justice.

In one episode of Luke Cage, the main character is asked by a bystander who witnesses his power, "You're one of them, aren't you?" His answer? "If you mean one of those people who gives a damn, then yes." He's not interested in the nature of his power, only in how he uses it.

This is a warning that almost all martial arts students receive at one point or another: be careful how you use your power, because you can really hurt someone if you try. That's true of all of us - every day we hold the ability to really hurt others if we try. We can also help others with the power at our disposal. We can, if we choose, seek justice.

So remember today that you are powerful. And remember that your power is meant as an aid to justice.