Are President Putin And Chief Justice Roberts Strong Enough To Fight Corruption?

Some people seem to think Putin and Roberts are strong leaders.  If they are really strong leaders, why do they seem to be so afraid of fighting corruption in their societies?

Putin’s invasion and annexation of Crimea was opportunistic, taking advantage of a chaotic situation in Ukraine and seemingly taking western Europeans and Americans by surprise.  But some commentators believe his goal was to distract his own domestic audience in Russia from economic failures due primarily to endemic corruption, most visibly on the Sochi Olympic project.  However accurate that explanation, in the longer view Putin has not succeeded in modernizing Russia’s economy, particularly in reducing the deadweight losses from corruption.

John Roberts, likewise, seems a shrewd operator, but one wonders how well his opinion in McCutcheon, the latest campaign finance case, will wear with a little age.  As Zephyr Teachout of Fordham Law School has written (see her downloadable SSRN papers on corruption, especially “The Anti-Corruption Principle”) corruption for the Framers and Founders was by no means limited to outright bribery.  Corruption depends on concentration of power, anti-corruption on dispersal of power–thus the crucial constitutional principles of “separation of powers” and “checks and balances.”  She argues persuasively that for anyone even mildly committed to fidelity to the original understandings of the Consitution, “anti-corruption” is a freestanding principle that can and sometimes ought to limit and constrain the application of other cardinal constitutional principles, even First Amendment principles such as free speech.  James Madison, Alexander Hamilton, and George Mason are likely turning in their graves over Roberts’ latest “what? me worry” pro-corruption judicial opinion.  Is John Roberts wiser than the Founders?

 

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There Goes Trouble

The late Nelson Mandela was known by several names: Madiba, his clan name; Tata, meaning father; and prisoner #466/64 among them.  His given name at birth was Rolihlahla, meaning one who pulls the branch from the tree, or “troublemaker.”  If Mr. Mandela, in his long life, caused plenty of trouble, his most amazing accomplishment was to keep trouble with a capital T from overwhelming his country.  He was, it has been said, not just the George Washington of South Africa but also its James Madison, as the years just before his release from prison and then the four years between his release and his election as president were spent in long negotiations over the shape of the political and legal system that would guide South Africa after apartheid.

Mandela’s presidential successors in South Africa have displayed all-too-human failings, but Mandela himself should hardly shoulder much of the blame for that, I believe.  He did have the “good fortune,” though, as Jelani Cobb wrote in The New Yorker, that “his moment inverted the demands commonly placed upon a politician’s shoulders.  His country needed him to publicly and explicitly act on his firmest convictions, not bend bend them on the altar of expediency.  Mandela emerged at that rare point in history where idealism and pragmatism were practically indistinguishable.”  To put it another way, Nelson Mandela stands almost alone in living memory for being master of both the moral high ground and the political high ground.

And with quite the puckish sense of humor: upon meeting one of the Spice Girls in the late nineties, Mandela said that “I don’t want to be emotional, but this is one of the greatest moments of my life.”  The Onion might have made Mandela smile when they paid tribute, exaggerating just a little, to “the first politician in recorded history to actually be missed.”

Why Justices Scalia, Alito, and Thomas Will Be Wearing Burqas Over Their Hijabs Going Forward

As a sign of their judicial modesty, if reports in the aftermath of oral argument in the latest public prayer case are accurate.  Chief Justice Roberts is said to be dismayed, worried sick that they will be impeached by irate Tea Partying Republicans in the House of Representatives.  But Scalia let Roberts know he oughta grow a thicker skin and get over it.  “You call this coercion?” yelled Scalia.  “You can’t handle coercion, John.  You let Obamacare survive, but no way are you gonna stand in the way of mandatory prayer for anybody who wants a zoning variance or a septic tank permit.  We could care less what James Madison thought about it.  And by the way, I don’t know about your friends, but my Tea Party buddies are all about Sharia law.”

Justice Scalia is also said to have persuaded two of his hitherto Roman Catholic brethren that it was high time to abandon that squishy enterprise for the true faith.  Alito suggested Eastern Orthodoxy, but Scalia told him “not good enough.”  So Wahhabists r Them, that is if the NYC print edition of The Onion is to be believed.  Say what?–there is no print edition any more?

Where Are Our Prayer Curators?

Curating most anything is very cool these days, I think.  So why were so many of our Supreme Courters seemingly so afraid of curating our public prayers?  Don’t we pay them the big bucks to settle tough issues like this?

To answer–and to get a bit serious–a little history first.  Thirty years ago, the Court last undertook to rule on legislative prayer, in a case out of Nebraska, which had paid a chaplain (same denomination, Presbyterian, for sixteen years in a row!) out of public funds.  Chief Justice Burger, platitudinous and conformist as ever, delivered the 6-3 majority opinion, which was heavy on legislative prayer’s “unique history,” its “deeply embedded” status and its supposed easy “coexist[ence] with the principles of disestablishment and religious freedom” (Marsh v. Chambers, 1983).  Justice William Brennan‘s dissent in the Marsh case acknowledged that the “limited rationale” of the decision “should pose little threat to the overall fate of the Establishment Clause,” and averred that 20 years earlier, in a concurring opinion striking down official prayer in public schools, he himself had come “very close to endorsing essentially the result reached…today.”  Brennan then wrote: “I was wrong then and…the Court is wrong today.”  Not a common sight in Supreme Court opinions then or now!

Brennan’s dissent pointed out that the Burger majority opinion “makes no pretense of subjecting Nebraska’s practice of legislative prayer to any of the formal ‘tests’ that have traditionally structured our inquiry under the Establishment Clause….it simply confirms that the Court is carving out an exception to the Establishment Clause rather than reshaping Establishment Clause doctrine to accommodate legislative prayer.”  What should be obvious, according to Brennan, is “that, if the Court were to judge legislative prayer through the unsentimental eye of our settled doctrine, it would have to strike it down as a clear violation of the Establishment Clause.”  Brennan then set off on a lengthy explanation of the principles and purposes of “separation” and “neutrality” implicit in the Clause: guaranteeing the individual right to conscience, keeping the state from interfering in the autonomy of religious life, preventing the trivialization and degradation of religion which occurs when it gets too closely attached to governmental bodies, and finally keeping important and sensitive religious issues from becoming political battlegrounds.  Justice Brennan went on to detail how “the imperatives of separation and neutrality are not limited to the relationship of government to religious institutions or denominations, but extend as well to the relationship of government to religious beliefs and practices.”  He refuted the ahistorical talking point that his view of the Establishment Clause is “a recent concoction of an overreaching judiciary,” citing none other than James Madison (his post-presidential “Detached Memoranda”).   Brennan concluded his dissent by quoting de Toqueville on the strikingly beneficial mutuality of the spirits of religion and freedom in the United States of the 1830s, which Toqueville’s informants agreed was due to the complete separation of church and state.  “More recent history,” wrote Brennan, “has only confirmed de Toqueville’s observations.  If the Court had struck down legislative prayer today, it would likely have stimulated a furious reaction.  But it would also, I am convinced, have invigorated both the ‘spirit of religion’ and the ‘spirit of freedom.’  I respectfully dissent.”

That was thirty years ago. The oral argument in Town of Greece v. Galloway appears to me to signal an outcome not too different from Marsh.  Those who seemed inclined to uphold the western New York town’s practice since 1999 of beginning town board meetings with prayer justified themselves by worrying about censoring speech (Kennedy, whose fetish for applying First Amendment absolutism inappropriately is getting on my last nerve), by pooh-poohing the element of coercion (Scalia and perhaps Alito), or by worrying about overturning a longstanding practice (though sectarian prayer just started in 1999–the previous town supervisor was mindful enough to begin with a moment of silence).

Justice Sotomayor got at the heart of the flim-flammery of pretending that Hindus, Muslims, Jews, and practically everybody (except atheists–though in 2013 American religious “nones” appear to outnumber all non-Christians) were all welcome to join the festivities when she got the town’s lawyer to admit that Christian clergy led the prayer on average 11 out of 12 months each year even after the court challenge began! According to the 2nd Circuit Appeals Court ruling, there was an outbreak of pluralism in 2008, with four non-Christian prayers out of twelve, and then a reversion to the pre-lawsuit all-Christian norm for at least a year and a half (Galloway v. town of Greece, 681 F.3d 20).

Regarding the curating of curates’ and others’ public prayers, I now propose a moment (or a day) of silence and mindfulness–which is only to say I hope to have more to say in a little while.